
Judge to DOJ: Not All Writs - sinak
https://www.eff.org/deeplinks/2015/10/judge-doj-not-all-writs/?
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zaroth
"As the Ninth Circuit put it in a case interpreting technical assistance in a
different context, private companies' obligations to assist the government
have “not extended to circumstances in which there is a complete disruption of
a service they offer to a customer as part of their business.”

It wasn't the case with Lavabit; there is obviously some point at which
businesses are expected to properly architect their encryption solutions in
order to comply with lawful search warrants. Would have been nice for the
article to raise that counter-point and maybe try to address where exactly the
line is drawn?

The point is Lavabit wasn't an 'All Writs' issue, if you get a search warrant
against the company for data held by the company (e.g. the unencrypted iCloud
backup) then it's a completely different expectation of compliance.

Does this or the WaPo article address if Apple possessed an iCloud backup of
the device?

~~~
malandrew
At least one big difference is ownership. With lavabit, the company owned the
code and infrastructure that was used in a "crime". With an iOS device, Apple
has sold the device to an individual who is now responsible for that device.
That's a huge difference.

The government has been using third-party doctrine as a weak link to exploit
to get stuff it wants. Apple essentially removed themselves from the situation
so that they are no longer a third-party responsible for the desired data.

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rayiner
This is some pretty wacky legal argument.

Background:

> Here, as in those other cases, the government had a search warrant for the
> device, but it was thwarted by the device’s lock screen in executing the
> search.

> The government cannot impose an unreasonable burden on Apple

And the case EFF cites to for that proposition holds: "We conclude, however,
that the order issued here [requiring a telephone company to assist the FBI in
wiretapping its customers] against respondent was clearly authorized by the
All Writs Act and was consistent with the intent of Congress."

> and it cannot violate the Constitution.

Sure. But the fact that there's a warrant takes away your biggest
Constitutional argument--the 4th amendment.

> What’s more, such an order would be unconstitutional. Code is speech, and
> forcing Apple to push backdoored updates would constitute “compelled speech”
> in violation of the First Amendment

So the government can't force Toyota to push a firmware update to fix faulty
electronic throttles?

> government keeps pushing for “exceptional access” to encrypted devices and
> communications.

But that's the thing. It's not "exceptional." Since the founding, the
compromise is that the government can get at nearly any place that might
contain evidence, so long as it has a warrant. Digital privacy proponents are
trying to move the goal line, limiting government power in unprecedented ways.

Note bene: I support pervasive encryption and oppose back doors.

~~~
zyxley
> It's not "exceptional."

The problem here is... well, I'll make an analogy.

I have a safe. The government gets a warrant to search that safe, and since I
refuse to help, they get a professional locksmith to open the safe for them.

Now, let's say I have a safe that the government can't figure out how to open
without destroying its contents. In response, the government tells the safe
manufacturer to start making different safes that the government can open.

Hopefully you see the problem with the second case.

~~~
jfoutz
Isn't that already covered by spoilage of evidence, or something along those
lines? If i have a magic safe that destroys its contents, I'd be on the hook
for maybe Obstruction of Justice? That may or may not be better than losing
the contents, but it's not like i could just walk away.

~~~
zbyte64
I think OP meant opening up a safe with some explosives. But let us say it is
a magic safe that incinerates the contents if it detects excessive tampering -
I am assuming the purpose of which is to protect sensitive documents in case
if the entire safe is stolen. Then the safe maker is not liable for
obstructing justice any more then a paper shredding manufacturer.

~~~
jsmeaton
The safe maker wouldn't be liable, the owner of the safe would be. If there's
a warrant for the contents of the safe, but the owner refuses to open it up,
then the owner is guilty of _whatever law requires you to cooperate with the
warrant_. Isn't that enough?

~~~
detaro
Punishing the owner for not giving the government access to the contents of
the safe doesn't change the fact that the government doesn't have the contents
of the safe, so I guess they might not consider it enough.

------
enahs-sf
I realize it's basically impossible to pass a constitutional amendment at this
point, but guaranteeing the right to privacy would be pretty awesome.

~~~
Zigurd
Rights are not enumerated

~~~
542458
That's not true. The ninth amendment reads:

> The enumeration in the Constitution, of certain rights, shall not be
> construed to deny or disparage others retained by the people.

As such, it would be more accurate to say "Not ALL rights are not enumerated".
Some are, some aren't. Those that are have traditionally proven harder to
infringe. As such, it's not wrong to explicitly codify a right to privacy in
the constitution in order to remove all ambiguity.

~~~
dragonwriter
> As such, it would be more accurate to say "Not ALL rights are not
> enumerated".

It would be _even more_ accurate to say -- as regards the meaning of the Ninth
Amendment -- that it means that not all rights applicable against the US
federal government are enumerated in the Constitution, in that the omission of
legal rights recognized _prior_ to the Constitution are not extinguished by
mere omission from the Constitution (they might be extinguished by conflicting
with enumerated powers in the Constitution.)

I'm not sure its really defensible to interpret the intended meaning of the
Ninth Amendment to be that rights exist without being enumerated _anywhere_.
(The closest the Constitution gets to that -- at least, as far as rights that
the federal government can't encroach -- is in Amendment X, which does
something _like_ that, though its framed in terms of _powers_ rather than
_rights_ , by expressly reserving all powers not delegated to the federal
government by the Constitution.)

Certainly, some of the same people who were involved in advocating for the
Ninth Amendment had expressed the view in _other_ contexts that rights exist
independent of enumeration (e.g., in the Declaration of Independence.)

~~~
542458
So IANAL, but didn't Griswold v. Connecticut establish that some rights DO
exist without being enumerated anywhere? Specifically, that the guarantees in
the bill of rights have "penumbras" that imply other rights not explicitly
stated in any text (and not necessarily in common practice before the
establishment of the constitution), but rather implied by the spirit of the
text as a whole.

~~~
dragonwriter
> So IANAL, but didn't Griswold v. Connecticut establish that some rights DO
> exist without being enumerated anywhere?

Not really,

> Specifically, that the guarantees in the bill of rights have "penumbras"
> that imply other rights not explicitly stated in any text

No, the ideas of "penumbras" and "emanations" in Griswold are not
nonenumerated rights; they are the full scope of the meaning of particular
enumerated rights and products of the combination of those enumerated rights,
not rights that exist independent of enumeration.

------
razster
If I recall you can use a Map Legend to protect yourself, but I cannot recall
the case. Some person made a legend to safe guard his password. He was force
to hand over his legend but did not have to tell (FBI/CIA) how to decipher it.
Anyone know what I'm talking about. Sorry if this is off subject, just thought
it might be interesting to look up.

