
Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf] - coloneltcb
http://blogs.reuters.com/alison-frankel/files/2016/02/applebrooklyn-2.29.16order.pdf
======
matsur
This seems to be the core point here — the US Code is a whitelist, not a
blacklist:

"The government's position also produces a wholly different kind of absurdity:
the idea that the First Congress might so thoroughly undermine fundamental
principles of the Constitution that many of its members had personally just
helped to write or to ratify. Its preferred reading of the law – which allows
a court to confer on the executive branch any investigative authority Congress
has decided to withhold, so long as it has not affirmatively outlawed it –
would transform the AWA from a limited gap-filing statute that ensures the
smooth functioning of the judiciary itself into a mechanism for upending the
separation of powers by delegating to the judiciary a legislative power
bounded only by Congress's superior ability to prohibit or preempt. I conclude
that the constitutionality of such an interpretation is so doubtful as to
render it impermissible as a matter of statutory construction."

~~~
rqebmm
I could do without the originalism. His argument that The FBI's "preferred
reading of the law ... would transform the AWA from a limited gap-filling
statute ... into a mechanism for upending the separation of powers" is more
than strong enough without trying to divine the ideas of the long-dead
creators of the law.

What's important is the letter of the law, the relevant preceding decisions,
and the judge's reason and conscience (which is checked by appeals). The
context the law was originally written in is just fluff.

~~~
maxander
Read much about legal cases and you'll quickly realize how little "the letter"
of a law (or any other collection of words) really, unambiguously conveys.
Context is a necessary fallback in the interpretation of law just as it is in
day-to-day conversation.

I haven't read this document in detail, but from what's quoted here it seems
pretty obvious that the judge's argument _isn 't_ strong enough without
reference to the law's creators. Its entirely plausible to imagine serious
lawmakers making an AWA that _was_ a "mechanism for upending the separation of
powers". Only knowing the involvement of these same lawmakers (in part) in the
law's creation is this interpretation ruled out- "orginalism" certainly, but
here justifiable.

~~~
lmitchell
This is the one thing I really took away from (way too much) recent reading
about Scalia and textual originalism - in my opinion, it's almost downright
foolish to obey 'the letter' of the original law, and it's completely right of
anyone asked to _judge_ based on the law to do just that. I think it'd be kind
of stupid in this case in particular and in all cases in general to ignore the
context surrounding the law, both at the time it was written and in the
present day.

~~~
justinmayer
Textual originalism is a euphemistic smokescreen, invoked to justify a
position as "true" to the original intent even when the justice in question
hands down opinions with no Constitutional basis. Scalia was a master at this
deception, vehemently excoriating "activist" judges while simultaneously
making logical leaps like "corporations are people" and "money is speech".

Textual originalism is largely a fraudulent mechanism for justifying a right-
wing position.

~~~
anaptdemise
Although agree, ...with your position, I disagree in your reasoning.
Corporations are persons because they are an organized group of people
established to carry out the intentions and express the views, i.e. speech, of
their members. Citizens United didn't screw campaign finance laws, it affirmed
a breakdown of the intention of campaign finance laws. If a company can say,
"we make our parts from recycled materials, that's why we are better than our
opponents," does that not constitute political speech? Should a company not be
able to say that? Should a company not be able to contribute to organizations
that support actions, through speech, to the benefit of the company or inline
to the intentions of the people involved in the company? The decision was
legally correct. The fallout is in our hands...

I personally am anoyed that, now, every purchase I make is a political
statement. Or being lowered into thinking that, now, is different. Buy
American!

~~~
zardo
>Although agree, ...with your position, I disagree in your reasoning.
Corporations are persons because they are an organized group of people
established to carry out the intentions and express the views, i.e. speech, of
their members.

Is that why you invest in a company? So it can express your views for you? I
do it because I would like to be able to retire some day, not because I
support their polital efforts.

~~~
fennecfoxen
> Is that why you invest in a company?

Maybe, and maybe not, but remember that not all corporations are publicly
traded on the stock market. Some organizations are incorporated under
structures and tax rules like, say... the National Association for the
Advancement of Colored People, a 501(c)(3) charity, or the American Federation
of Labor and Congress of Industrial Organizations, a 501(c)(5) labor union, or
the U.S. Chamber of Commerce, a 501(c)(6) business league, or Swift Boat
Veterans For Truth, a 527 organization, or Universal Life Church, a
508(c)(1)(a) religious organization. _All of these have engaged in free speech
activities, often overtly political ones._

Some corporations are privately held and across the pond, the Crown itself is
"a corporation sole that represents the legal embodiment of executive,
legislative, and judicial governance" in the King or Queen of England (not
relevant to US free speech so much but potentially interesting as a corporate
structure).

Personally, I'd hope that a _publicly traded for-profit corporation_ that I
(partially) own would spend/invest its money wisely, to increase the value not
only of my shares, but my interests in life in general. However, the value of
my shares is one particularly compelling and immediate interest, and also much
easier to measure results on than the others, and political spending may or
may not be in my overall interest, so I agree that skepticism on such spending
is warranted.

------
acqq
Note that this is not the San Bernardino shooter case but just the drug case
in NY.

Still, Judge Orenstein gave some extremely important arguments regarding the
All Writs Act (AWA) that the government tries to use:

"The plain text of the statute thus confers on all federal courts the
authority to issue orders where three requirements are satisfied: 1\. issuance
of the writ must be "in aid of" the issuing court's jurisdiction; 2\. the type
of writ requested must be "necessary or appropriate" to provide such aid to
the issuing court's jurisdiction; and 3\. the issuance of the writ must be
"agreeable to the usages and principles of law.""

"As set forth below, I conclude that in the circumstances of this case, the
government's application does not fully satisfy the statute's threshold
requirements: although the government easily satisfies the statute's first two
elements, the extraordinary relief it seeks cannot be considered "agreeable to
the usages and principles of law." In arguing to the contrary, _the government
posits a reading of the latter phrase so expansive – and in particular, in
such tension with the doctrine of separation of powers – as to cast doubt on
the AWA 's constitutionality if adopted._"

In short, he recognized that "All Writs Act" can't mean "we can order anything
we want to" to allow (in this case) DEA not following the laws that already
exist (which specifically don't prescribe what DEA demands from Apple).

~~~
Esau
And this is the way it should be. Otherwise, we are all deputized slaves to
the government.

~~~
acqq
Judge actually wrote that accepting the use of AWA that way

"is a reading that thoroughly undermines" "the more general _protection
against tyranny_ that the Founders believed required the careful separation of
governmental powers.""

------
msbarnett
Not especially shocking. The Gov'ts proposed theory of the All Writs Act as
the legal equivalent of "sudo do whatever I want" was pretty damn tenuous.

~~~
clamprecht
It seems easy to rule out the "do whatever I want interpretation". If this
were true, the Constitution becomes unnecessary. This is a contradiction. QED

~~~
dragonwriter
The government's actual interpretation wasn't quite broad enough to allow that
dismissal: the proposed interpretation was essentially that AWA allows courts
to order anything _so long as neither the Constitution nor laws passed by
Congress explicitly forbid it_.

~~~
acqq
> AWA allows courts to order anything so long as neither the Constitution nor
> laws passed by Congress explicitly forbid it.

And that interpretation the judge considers absurd:

"the government's construction of the AWA produces absurd results in
application. If, for example the President sent to Congress a bill explicitly
authorizing a court to issue the kind of order the government seeks here, and
if every single member of the House and Senate were to vote against the
enactment of such a law citing the kinds of data security and personal privacy
concerns that Apple now embraces, the government would nevertheless describe
the order sought here as permissible because Congress had merely rejected the
bill – however emphatically, and however clear its reasons for doing so –
rather than affirmatively passing legislation to prohibit the executive
branch's proposal. Yet in such circumstances, it would be absurd to posit that
the authority the government sought was anything other than obnoxious to the
law."

And there's the related law in which Congress explicitly didn't oblige the
companies: CALEA.

~~~
ikeboy
Wouldn't the same argument apply to any time congress delegates authority?
I.E. They allow some agency to decree certain things with the force of a law.
Whatever that agency decides within the bounds of the constitution is law,
even if congress debated that point and didn't expressly permit it.

~~~
jessaustin
You're talking about e.g. EPA deciding to regulate a dangerous-but-previously-
unregulated chemical. In that case it's reasonable for EPA to declare that it
will regulate the chemical. FBI doesn't get to make such declarations with
respect to its own investigatory powers.

~~~
ikeboy
If Congress debates whether they should ban the chemical and decides not to
pass anything, does the EPA still have that right? If yes, what's the
difference?

~~~
nickodell
When establishing the EPA, Congress wrote a law saying "All dangerous
chemicals will be banned. The EPA will define what 'dangerous chemicals'
means." (Actually, the first iteration of the EPA just gave grants to local
organizations to clean up pollution, but I'm ignoring that for the moment.)

'Is this chemical dangerous?' is a specific question with a specific
scientific and medical answer. 'Is this a dangerous use of federal power?' is
an inherently subjective question. So, that would be one reason why your
example doesn't raise the same constitutional concerns as the FBI's request.

Second, being able to ban chemicals is a power that is much more limited than
the power to make arbitrary companies do arbitrary things.

~~~
ikeboy
Where in the Writs act or Constitution is an exception made for "dangerous
uses"?

~~~
nickodell
Nowhere. However, the Writs act does require that the writ be, "agreeable to
the usages and principles of law."

Orenstien's point is spot on. There's no act of Congress that prevents the
government from seeking a writ to provide execution drugs.

If we accept the government's argument that Congress must explicitly deny the
request, and the argument that burden must be calculated purely based on
financial cost, the only factor that would weigh against a writ for execution
drugs is the discretionary factor of closeness.

------
alblue
I've written up the piece for InfoQ here:

[http://www.infoq.com/news/2016/02/all-writs-
denied](http://www.infoq.com/news/2016/02/all-writs-denied)

Basically, the motions in the piece indicate that the relationship with the
All Writs Act that was successfully used before are not relevant; because in
the prior case, the business property was being used to commit the crime, but
in this case, the property was the owner of the accused, not Apple.

The Judge also highlighted "in other cases in the country" and had an explicit
callback to the founding fathers and the constitution, suggesting that if the
All Writs Act allowed the government to compel any American company to do
anything it wanted that wasn't explicitly illegal, and therefore any American
citizen, could be compelled to do almost anything.

Reuters are now reporting this directly, rather than just a link to the court
order:

[http://www.reuters.com/article/us-apple-encryption-deny-
idUS...](http://www.reuters.com/article/us-apple-encryption-deny-
idUSKCN0W22Q0)

~~~
cpayne
Well written.

I know we hear a lot of doom and gloom, but I think it's a fantastic time we
live in.

Not only do we have the transparency of the courts (which is good, but I don't
understand it), we have an article summarising it. We then have the author
available for comment.

I don't have any questions or feedback, but if I did, I feel confident you
would respond appropriately.

I know we are far from perfect world but the one we have is pretty dam
awesome!

~~~
alblue
Thanks for the kind words :-) I'm happy to answer things as I understand them,
but I am not a lawyer.

------
GigabyteCoin
Isn't the All Writs Act just a red herring in this whole debate? What's
preventing the Federal Government from issuing Apple a National Security
Letter and forcing them to comply in secrecy?

I don't understand how all of a sudden the government is publicly and calmly
asking permission to do something digitally when they have been so forceful
and demanding in the recent past.

~~~
guelo
A NSL is a subpoena, meaning an order to produce information. In these cases
Apple does not have the information being sought because it is encrypted on
the phones and they don't have the key.

The government is trying to use a dubious legal tactic to force Apple to
create a hacking tool that does not exist. It's not an order to produce
information, it's an order to do forced work.

~~~
thesimon
>meaning an order to produce information.

But couldn't they write a modified iOS software themselves (obviously not easy
as cake, but for the sake of the argument) and use a NSL to get Apple's key to
sign the update?

It seems like having the update _signed_ is the issue, not _writing_ the
update.

Edit: When looking at the scope of the NSL, it seems like only metadata can be
requested, not arbitrary stuff. IANAL, but it seems like using an NSL makes no
sense.

~~~
dragonwriter
They could try. Apple would no doubt challenge both the NSL _and_ the
associated nondisclosure order (if one were issued with the NSL) in the
courts, though. NSLs aren't magic.

~~~
thephyber
They are pretty close to magic. I've only ever heard of one case where an NSL
was challenged in court.

From what I remember, the NSL comes with a gag order which prevents even the
council of the recipient from knowing about the issue.

~~~
kahirsch
> the NSL comes with a gag order which prevents even the council of the
> recipient from knowing about the issue.

That was changed with the USA PATRIOT Reauthorization Act of 2005.

------
nickysielicki
From the first page, (and the same sentiment is found throughout the whole
document)

> the relief the government seeks is unavailable because Congress has
> considered legislation that would achieve the same result but has not
> adopted it.

Bingo!

I've said it on HN since the beginning of this case [1,2,3], and I'll continue
to say it. This case is about making backdoor legislation palatable. Don't get
caught up in the precedent set by this case, it's more or less inapplicable
when Apple (etc.) can't flash the device without effectively wiping it, which
is where things are headed. [4]

[1]:
[https://news.ycombinator.com/item?id=11139515](https://news.ycombinator.com/item?id=11139515)

[2]:
[https://news.ycombinator.com/item?id=11139497](https://news.ycombinator.com/item?id=11139497)

[3]:
[https://news.ycombinator.com/item?id=11164617](https://news.ycombinator.com/item?id=11164617)

[4]: [http://www.cnbc.com/2016/02/24/apple-is-said-to-be-
working-o...](http://www.cnbc.com/2016/02/24/apple-is-said-to-be-working-on-
an-iphone-even-it-cant-hack.html)

~~~
nikdaheratik
Except that if the ruling had gone the other way you could say that this is a
way of pursuing <nebulous government intrusion> _without_ going through
Congress.

The reality is that the people who want to be able to decrypt at will are just
pursuing every option available to them.

------
dmitrygr
"As explained below, after reviewing the facts in the record and the parties'
arguments,I conclude that none of those factors justifies imposing on Apple
the obligation to assist the government's investigation against its will. I
therefore deny the motion."

------
afarrell
It is also worth reading Apple's motion in this case:
[https://www.documentcloud.org/documents/2722199-5-15-MJ-0045...](https://www.documentcloud.org/documents/2722199-5-15-MJ-00451-SP-
USA-v-Black-Lexus-IS300.html)

Actually I just noticed something about the title of the case: USA vs Black
Lexus IS300. Is this actually a criminal forfeiture case?

~~~
msbarnett
That's a motion from a case in California. This ruling is from one in New
York.

It's confusing because the Goverment has advanced this All Writs theory in 9
different currently ongoing cases to try to get it to stick.

~~~
chimeracoder
> It's confusing because the Goverment has advanced this All Writs theory in 9
> different currently ongoing cases to try to get it to stick.

The only one I've heard about is the San Bernardino shooter's phone. What are
the other eight cases?

~~~
msbarnett
The New York case this ruling came out of is one of them.

This list has all of the ones Apple listed in a filling in this New York case:
[http://appleinsider.com/articles/16/02/23/in-new-court-
filin...](http://appleinsider.com/articles/16/02/23/in-new-court-filing-apple-
cites-9-other-cases-in-which-fbi-asserted-the-all-writs-act)

------
kirykl
Why would this stop at smartphones? If the FBI's arguments would be upheld,
couldn't the FBI require home manufacturers to build in literal back doors for
use only by the government

~~~
lern_too_spel
No, if it's upheld and home manufacturers _already_ have a literal backdoor
for use only by themselves, a court can force the home manufacturers to allow
the FBI to use them as well for specific investigations. The AWA power to
compel an action only works when the party being compelled has some special
ability to help on a specific case with probable cause (not future cases), as
Apple does with its system update backdoor for the San Bernardino and Brooklyn
cases.

~~~
marcoperaza
It's a shame that you're being downvoted. This is exactly what the situation
is.

~~~
grey-area
It's not exactly the situation as I understand it. Apple, with their current
software, do not have a way to access this phone. They'd have to build a
special neutered version, update the phone with it, then allow access.

That they _can_ do this since they control updates doesn't mean that they have
already done it for their own purposes or wish to do it, or should be
compelled to build a back door for the government.

~~~
lern_too_spel
That they _can_ do it means they have a backdoor. It doesn't matter if it
takes a day to write the code and flash a build to use it — that it is
significantly easier for them to access data on the device than it is for
anybody else means they have a backdoor.

------
studentrob
This is not the end. The San Bernardino case will be appealed, and somewhere
in the midst of that we're going to see new bills from the legislature.

One bill, set for release in March, could require encrypted devices to be able
to give un-encrypted data to law enforcement. Feinstein says the bill is
"coming along ... some people are making it a lot harder than we think it
needs to be". An alternate proposal is also on the table from McCaul and
Warner,

[http://www.politico.com/tipsheets/morning-
cybersecurity/2016...](http://www.politico.com/tipsheets/morning-
cybersecurity/2016/02/march-is-encryption-bill-month-hackers-going-after-
japans-infrastructure-a-mixed-final-2015-tally-212865)

------
CiPHPerCoder
The conclusion is pretty clear.

    
    
        Ultimately, the question to be answered in this matter,
        and in others like it across the country, is not whether
        the government should be able to force Apple to help it
        unlock a specific device; it is instead whether the All
        Writs Act resolves that issue and many others like it yet
        to come. For the reasons set forth above, I conclude that
        it does not. The government's motion is denied.
    

It doesn't answer the question that was on my mind ("Can the FBI force Apple
to write and cryptographically sign a less-secure version of their operating
system?"), but it's nice to know that the AWA doesn't grant them that
capability.

~~~
username223
This is one of those times I really wish we had a functioning legislative
branch. They could write and pass a law describing companies' obligations and
law enforcement's powers when dealing with strong encryption on smartphones.
Then people who disagreed could take it to the courts, and a Supreme Court
with an odd number of justices could decide whether said law was
constitutional.

Unfortunately we do not live in that world, so we get to creatively interpret
centuries-old laws written by people who could not have imagined encrypted
smartphones. And that interpretation may end up at an evenly-divided Supreme
Court.

~~~
AnimalMuppet
An even number of justices does not necessarily mean a deadlocked Supreme
Court. Most cases are not decided 5-4 (though it may be true that the most
controversial cases are more likely to be decided that way).

~~~
username223
I agree, especially in this case. Since it isn't a straightforward Democrats
vs. Republicans issue, Kennedy or Roberts might go either way. Still, with our
useless Congress, there won't be any new law, and even if there were, it could
be struck down by a Circuit Court decision "approved" by a deadlocked Supreme
Court. Ugh.

------
SEJeff
I'd actually _love_ to see this one make it to the supreme court, where I have
pretty much no doubt, they would reach the exact same conclusion.

~~~
joezydeco
Or, the SCOTUS (currently down to 8 Justices) would deadlock and the ruling
would fall back to the lesser court's decision in favor of the government.
Forever.

~~~
dragonwriter
> Or, the SCOTUS (currently down to 8 Justices) would deadlock and the ruling
> would fall back to the lesser court's decision in favor of the government.
> Forever.

No, a Supreme Court deadlock has essentially the same effect as if the case
had not been appealed to the Supreme Court; the Court of Appeals decision
stands, but no binding precedent (other than the local precedent already
created by the Court of Appeals decision) is created. So, its not "forever",
even in the limited sense that a Supreme Court decision is "forever".

~~~
SEJeff
^ This is the correct answer

------
brandeis
I think the technicality in the current case will hinge on the definition of
"necessary" and "appropriate" if this Judge's opinion of that drug case is
correct. Both from the AWA and then CALEA Id. § 1002(b)(2). "...and the
carrier possesses the information necessary to decrypt the communication." To
my understanding the way in which the government wants Apple to hinder the
security on the iphone is not by breaking the decryption, but by eliminating
the limit on entering the code, so that they can then brute force it. This in
my opinion falls outside of the strictest sense interpretation of the second
statute's definition of necessary. Therefore it also falls outside of the
"appropriate" in the AWA. I feel that an issue this large falling under a
distinction so small is a bit scary.

------
gregshap
So if this interpretation sticks, seems like there's a risky but effective new
anti-surveillance method in town:

1) Draft law expanding surveillance for criminal cases 2) bring the law for a
congressional vote 3) _make sure the vote fails_

-> now you've shut the FBI and others off from access through judiciary writs

~~~
jlgaddis
What happens if you aren't successful at #3 and the vote passes?

~~~
gregshap
risky!

------
studentrob
It seems likely to me that this case would be referenced in the upcoming San
Bernardino decision, but I am not a lawyer.

Does anyone know? Does this prop up the chances of that judge ruling in favor
of Apple?

Could the DOJ try to bring the Brooklyn case in front of the supreme court?
What are the next steps we're likely to see?

~~~
uxp
Generally, current litigation doesn't reference other current litigation
(mostly because current litigation has not established enough of a "fact" to
be referenced), but you can read this statement and see that Orenstein allowed
Apple to submit a brief while this case seemed to be going stale in-between
the guilty plea of the defendant and his sentencing, precisely because it was
being held up in 9 other cases of the "government" (whether that be the FBI in
the San Bernardino case, or the DEA in this case, to the plain Chicago PD in
another) leveraging the AWA to compel Apple to open this and other phones by
some means.

I'm also not a lawyer, but I can see how this helps Apple in fighting the AWA
used to compel them to unlock or decrypt phones seized as evidence in part of
some crime where Apple was not alleged as a perpetrator or coconspirator of
the crime.

------
sandworm101
This case does not bode well for the CA case.

The general consensus amongst lawyers is that this situation, the unlocking
scenario, will require either congress or the supreme court to weigh in.
Congress is out to lunch for the next year or so. But to get a ruling from the
supreme court one needs a controversy. Ideally, that would be two identical
cases with different interpretations by different appellate courts. This judge
has taken the first step. I suspect the CA judge will go the opposite way,
starting the progress up the system towards the supremes.

------
Chefkoochooloo
While Apple should assist with the unlocking of iPhones to assist in
prosecution of suspected criminals, the idea that the Feds want Apple to make
a backdoor program to every single iPhone is terrifying, even if they are
required to gain a warrant before using the program. The entire notion of one
government agency holding so much data and power is absurd and coercing a
company to make the program shouldn't be allowed.

------
jim-greer
Best quote from the ruling:

"As far as I can discern from the record, Feng did not at any time 'rent,
lend, lease, sell, redistribute or sublicense' Apple's software; what he did
'sell' or 'redistribute' was methamphetamine - a course of conduct in which
Apple was not involved."

~~~
belovedeagle
Interesting... I thought that was the worst bit, at least in terms of
substance. The government had raised the point that Apple [claims to?] own the
software on the iPhone, and that they had to take the ill effects of that
ownership along with the beneficial. I'm not so sure about that legal
argument, but Orenstein decided to ignore it completely and offer humor
instead. It was a blemish on an otherwise-excellent analysis, although I can't
help but feel that he's put rather a lot of his personal views into this
order.

------
ChuckMcM
Very nice, and one for the "good guys". Lets hope we can continue in this
vein.

------
aagha
It's times like this that my waning faith in our system is somewhat restored

------
aagha
It's times like this that my waning confidence in our system is reinforced.

------
mmmmmjjjjjj
mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm

------
rdl
What happens next -- US DOJ appeals?

------
leemalone1967
Nobody can force Apple to do what FBI want to. Period.

------
leemalone1967
They can not force Apple to do anything. Period.

~~~
leemalone1967
They can not force Apple if it implies invading the privacy Of Apple
customers.

~~~
leemalone1967
If they allow it, will be opening a can of worms. The FBI can do as they want.
Apple is protecting the pravacy of all its customers. Its a violation of
privacy do what FBI is asking.

------
beams_of_light
What if the government and Apple (and/or other tech companies) have colluded
on this issue, and ARE providing the FBI with the information they need, but
publicly fighting what appears to be a winning battle, all so that criminals
and terrorists will believe their iPhones are secure while plotting evil?

~~~
jibalt
Sorry, but nothing of any interest would follow from that harebrained
speculation being true.

