"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."
"It is wholly implausible to suppose that with so many of the newly-adopted Constitution's drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that document's very first substantive mandate: "All legislative Powers herein granted shall be vested in a Congress of the United States[.]" U.S. Const. Art. I, § 1. And yet that is precisely the reading the government proposes when it insists that a court may empower the executive to exercise power that the legislature has considered yet declined to allow.
It is a reading that thoroughly undermines both the legislature's own prerogative to reject a legislative proposal effectively and efficiently (without the need to affirmatively ban the proposed authority) and the more general protection against tyranny that the Founders believed required the careful separation of governmental powers."
As the power that the legislature "considered yet declined to allow" the judge refers to the existing law, CALEA (Communications Assistance for Law Enforcement Act):
"it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also" "even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe."
Another side, according to Reuters:
"The Justice Department is "disappointed" in Orenstein's ruling and plans to ask a higher judge within the same federal district to review the matter in coming days, a department representative said."
In 1798, the fifth Congress passed the Alien and Sedition Acts, which were signed by President John Adams, and were used to arrest or deport people critical of the government.  I don't think that's absurd at all. They weren't saints and they didn't have precedent to stop them from doing things like that.
You parent's point is "The fifth Congress did in fact undermine those principles in another case, so it's not so absurd to think that the AWA was intended as the government now claims".
Granted, first vs fifth.
And the point of the comment you're responding to is that the quoted argument is a non sequitur, which it surely is. The fact that the fifth Congress voted for a bad, self-serving law that violated the principles of the Constitution is completely irrelevant to whether the first Congress, in passing the All Writs Act, was doing the same. The argument is really quite circular: the belief that it is not absurd that the first Congress willingly violated the principles of the Constitution is the premise, not a conclusion that can be drawn from something done by the fifth Congress or the 105th Congress.
The Obama Administration began with a bailout of the American auto industry, and here seven years later, it is pouring billions of dollars into self-driving vehicles that could disrupt that same industry. I'm sure there are examples to be found in every administration (and Congress) before Obama, all the way to the First Congress.
IMHO, I'm really glad that a judge decided to rule in a way that says the Government cannot contradict itself. I wish it happened more often.
At the recent "Detroit Auto Show, Transportation Secretary Anthony Foxx announced that the DOT would make a '10-year, nearly $4 billion investment to accelerate the development and adoption of safe vehicle automation through real-world pilot projects.'"
However, if you believe that self-driving cars are the inevitable future, which I and many do, then I'm not sure this is really evidence of a contradiction. Both can be seen as investments in keeping the American auto industry alive and relevant in a global economy.
That doesn't take away from your larger point that governments do seem to contradict themselves all the time, i.e., make investments and pass laws/have policies that work at cross purposes.
If Google or Apple start producing self-driving vehicles, they're part of the American auto industry. If GM then can't keep up with them, who cares? The American auto industry is still perfectly fine, just consists of different companies.
Now if the Obama Administration wouldn't invest into self-driving cars and companies from other countries would grow big in this space, there might not be much of an American auto industry left afterwards. If anything, not investing into such research would be contradictory.
My argument is that the premise that the law can't be interpreted according to the governments wishes because the noble founders would have never written a law violating constitutional principles is clearly false, because they did so on more than one occasion.
Of the 95 members of the 1st US Congress, 21 (~22%) of them were members of the 5th US Congress, with the following breakdown:
* 5 senators (~17%) remained senators;
* 9 representatives (~14%) remained representatives; and
* 7 representatives (~11%) became senators.
Notes: John Brown was initially a representative of Virginia, then later became a senator of Kentucky (which was part of Virginia at the time of the 1st US Congress). William Smith (MD; 1st US House), William L. Smith (SC; 1st US House), and William Smith (SC; 5th US House) were all different people.
Method: moderately careful transcription plus grep, perl, sort, uniq, and comm.
EDIT: Thanks for adventured for the correction. I mistranscribed Philip Schuyler's name when copying down the members of the 5th US Congress.
 I didn't independently check the lists on Wikipedia.
James Gunn (GA), John Henry (MD), John Langdon (NH), Philip Schuyler (NY), Theodore Foster (RI)
The short answer is: Federalists voted for it, and Democratic-Republicans voted against it.
If I'm reading the House and Senate Journals correctly, the relevant legislative history is as follows:
1. 1798-06-08: The Senate approves the bill. https://memory.loc.gov/cgi-bin/ampage?collId=llsj&fileName=0... https://www.govtrack.us/congress/votes/5-2/s99
The bill passed by a vote of 17-6 (GovTrack reports this as 16-7 for some reason). Of the 12 members of the 1st US Congress who were senators in the 5th US Congress, two (John Henry and John Vining) had resigned well before the summer of 1798, and four (James Gunn, John Langdon, Philip Schuyler, and Theodore Sedgwick) did not vote on the bill. The remainder voted on straight party lines:
* Affirmative: Theodore Foster, Benjamin Goodhue, John Laurance, Samuel Livermore. (Federalists)
* Negative: Timothy Bloodworth, John Brown. (Democratic-Republicans)
2. 1798-06-21: The House approves the bill, with amendments. https://memory.loc.gov/cgi-bin/ampage?collId=llhj&fileName=0... https://www.govtrack.us/congress/votes/5-2/h90
The bill passed by a vote of 46-40. Of the 9 members of the 1st US Congress who were representatives in the 5th US Congress, one (William L. Smith) had already resigned at the time the bill was considered, and two others (Thomas Hartley and Josiah Parker) did not vote. The remainder voted as follows:
* Affirmative: Abiel Foster, James Schureman, Thomas Sinnickson, George Thatcher. (Federalists)
* Negative: Abraham Baldwin, Thomas Sumter. (Democratic-Republicans)
3. 1798-06-22: The Senate concurs in the amendments. https://memory.loc.gov/cgi-bin/ampage?collId=llsj&fileName=0...):%230020505&linkText=1
Either there was no vote here, or the yays and nays were not requested. The Senate Journal just says that they took into consideration the amendments and resolved that they concur in the amendments.
That's aside from that congress in 1798 probably didn't have a majority of founders etc.
To answer your question, the judges should cite their own judgement.
On that bit about you seeing what all others fail to see, I suggest that you look up "The Dunning-Kruger Effect".
I suspect your down votes are due to the use of the phrase 'cop out'.
I say this as someone that admire Cook's leadership on this issue but let's not be confused: at the end of the day he doesn't answer to you or me but to Apple's shareholders. I understand he needs to seem reasonable to the average American that may not understand Apple's argument as well as most people on HN but we can't let him sell us out in the process.
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.
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.
Or why else would CISPA, which was publicly denounced and failed to pass make it into a (budget bill)[http://www.wired.com/2015/12/congress-slips-cisa-into-omnibu...].
Democracy in action.
Edit: autocorrect of coorption
Textual originalism is largely a fraudulent mechanism for justifying a right-wing position.
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!
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.
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.
> I personally am anoyed that, now, every purchase I make is a political statement.
"Buffett, of course, has long centered his investment thesis on the idea that it never pays to bet against the U.S. economy in the long run."
"The Treasury sold $185.7 billion of securities (over $2.1 trillion in 2016) to finance the war. The public debt rose from $50 billion in 1940 to $260 billion in 1945."
... And definition of...
"Sometimes, a boycott can be a form of consumer activism, sometimes called moral purchasing. When a similar practice is legislated by a national government, it is known as a sanction."
This is one of the startups at a pitch day I attended recently, so sinking karma on an edit/self reply...
"We set out to build a company that celebrates the people behind our products. Our name is a reflection of the collective of individuals – artisans,"
I apologize in advance for getting a little belligerent but... Let me make you feel better about buying ridiculously marked up "craft goods" made by indiginous peoples by giving a small percentage of our profits back "to the artisans and their villages" (South America), in lieu of a competitive salary to that of a craftsmen working in the country they are sold (US). I am all for globalization and capitalism... just don't wax poetic about feel goods when I know how the sausage is made.
The magistrate's job is to apply and interpret the law. Lawyers study the circumstances under which laws were created for years before they can practice, and magistrates are on the whole even more educated in law than your average lawyer. His commentary is appropriate and helpful for fully understanding his logic.
The "relevant preceding decisions" include decisions specifying what canons of construction are used to interpret the meaning of law, and those decisions do hold out that legislative intent is a factor to consider when resolving the correct interpretation of words that can reasonably interpreted in different ways before considering that intent.
The context the law was originally written in is just fluff.
Fascinating how you contradict yourself. The judge's reason and conscience demand that he interpret the law as it was intended by those who wrote it. The notion that "the letter of the law" should prevail is completely lacking in a reasoned understanding of what language is and how it works, and the notion that judges should make decisions based on their personal prejudices is completely lacking in conscience.
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).
"Apple identified nine requests filed in federal courts across the country from October 8, 2015 (the date of the instant Application) through February 9, 2016. Id. at 2. In each, Apple has been ordered under the authority of the AWA (or has been told that an order has been requested or entered) to help the government bypass the passcode security of a total of twelve devices;
in each such case in which Apple has actually received a court order, Apple has objected"
"is a reading that thoroughly undermines" "the more general protection against tyranny that the Founders believed required the careful separation of governmental powers.""
What a fantastic way of putting it. Makes the point and good for a chuckle.
As a tech person I encounter things every day that I don't know about, and I google many of them.
Why should "non-tech" people be protected from the chore of googling ? Isn't that why people come here – to encounter things that they don't know about ?
Not advocating that HN isn't for non-tech-people, just saying that neither the reference nor the xkcd were out of place for this audience.
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.
It's a separation of powers thing. The legislative branch has the power to empower a portion of the executive branch (the EPA) to do things like ban chemicals.
What can't happen is the legislative branch empowering another branch to empower other branches. Congress can't pass a law that empowers the judiciary to empower the executive branch. The executive branch has to go to the legislative branch directly. The FBI can't do an end-run around congress declining to extend its powers by going to the judiciary and "finding" those same powers in the AWA.
The argument here is that the FBI's reading of the AWA would mean that the AWA does exactly that, and is therefore unconstitutional.
So, consistent with the idea that a law should always be interpreted in a way that keeps it constitutional and compatible with other laws if at all possible, the FBI's proposed interpretation of the law must be viewed as incorrect.
'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.
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.
Rhetoric aside, if the Supreme Court rules in favor of the FBI in this matter, we, the people, have created a branch of government that is both Judge and Jury. How long before they seek to also be Executioner?
The gov'ts interpretation is that "If the court issues a search warrant, we can coerce third parties into cooperation." A specific usage of the AWA, which basically says "The courts can coerce people to do things to enforce rulings".
This leads to relatively non-controversial things like asking apartment landlords to open doors to the house.
The controversy here from a legal standpoint is that what's being asked of Apple is too burdensome. I don't really know the constitutional argument against burden (probably the 10th, limiting the power of federal government), but there seems to be some.
This is a courtesy extended to likely political donors. If the landlord doesn't open the door, they don't take her to court, they just break it down. This courtesy is not extended to private homeowners.
There's more to it than that, and I'd argue that the primary controversy in this case, and to an extent even in the San Bernardino case (where the burden is certainly higher than here), burden isn't the primary controversy.
Basically, for the AWA to apply there are 3 statutory "tests" that have to be met that are laid out in the AWA itself, and 3 more discretionary "tests" that derive from the Supreme Court ruling in US v New York Telephone Company that control when a judge should exercise their discretion to issue an AWA writ (because these writs are never mandatory).
The statutory tests are: 1. Jurisdiction, 2. Necessity and appropriateness to aiding the court's jurisdiction, and 3. Agreeableness to the principals and usages of law.
The discretionary tests are: 1. Closesness of the target of the writ to the matter at hand (crime, civil action, etc), 2. Burden the writ imposes, and 3. Necessity (which overlaps the statutory test, but is more broadly interpreted).
This ruling doesn't just say the proposed use here of the AWA fails the burden test, it says it fails the 3rd statutory test and ALL the discretionary tests.
And this is where I'd argue the real controversy here derives from the 3rd statutory requirement. The Government's argument is, essentially, that any use of the AWA is agreeable with the usages and principles of law, as long as no law specifically forbids that use.
This is what is seen as controversially expanding the scope of the AWA to a massive degree. The Government's argument that Judges can only consider what the legislature has explicitly banned, not what the legislature failed to take up (like the fact that congress declined to give police agencies these powers in CALEA), has the effect of turning the AWA from an innocuous "paper the gaps" rule, into a statute of enormous, practically unlimited power.
As this ruling points out, if there were a law under consideration by congress that required, say, Drug Manufactures to produce lethal injection drugs, and every single member of congress voted against the law, the government's argument claims that they could still use the AWA to force a company to do exactly that and that it would be completely agreeable with the usages and principals of law, despite clearly thwarting the will of the legislature. Rather than decline to pass laws whose power congress dislikes, congress would actively have to pass laws forbidding every such power, or the AWA could be used to confer it, in the interpretation advanced by the Government here.
Essentially the interpretation the Government is advancing would require congress to blacklist everything under the sun, or its all fair game under the AWA. This interpretation, the ruling argues, would probably render the AWA unconstitutional if followed.
And that's the controversy. The Obama administration just declined to seek expanded powers encryption-thwarting powers for the FBI via the legislature. The FBI is now undertaking to "find" those same powers in an expansive new interpretation of the AWA.
tl;dr it's not just that it's too burdensome, it's that it tortures the meaning of the AWA to assume it applies this broadly to areas the legislature has already declined to grant power, the case is too narrowly connected to Apple, it's not clear that the Government has no other means it could have used to meet the goal, and it's too burdensome
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:
> The Judge disagreed, saying that the All Writs Act cannot be used to compel companies to do things that congress has explicitly rejected
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!
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.
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.
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.
I think that Ladar Levison would disagree with that comment. According to wikipedia "US government ordered [Ladar] to turn over its Secure Sockets Layer (SSL) private keys"  which imho would be no different that forcing apple to turn over a software-signing key.
>“To make use of these keys, the FBI would have to manually input all 2,560 characters, and one incorrect keystroke in this laborious process would render the FBI collection system incapable of collecting decrypted data,” prosecutors wrote.
From what I remember, 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.
Both the validity of the NSL and the application of a nondisclosure ("gag") order to an NSL (not all NSLs are inherently gag-ordered) are reviewable by court, and gag orders have been struck down by courts.
So its not at all the case that an NSL would never be discussed in open court. Still, its impossible to say what NSLs have been issued with gag orders that haven't been struck down, since those particular orders would not be publicly disclosed.
If there were true rule of the law and everyone would have been treated equally in US, then either both Lavabit and Apple should give out signing keys, or none at all.
Lavabit was forced and had no choice. As far as my reading and understanding goes, the Gov created some sort of loophole where Lavabit was denied a hearing and because of lack of hearing he was... found guilty (catch 22). I'm sure others can shed more light...
At this point, Lavabit could've complied by just handing over the original data, but instead decided to get cute. "Contempt of court" is an aptly named crime.
That may be. However, simply forcing them to hand over the key wouldn't imho.
And even if they did, it would take them months from receiving the source code to be even remotely prepared to do a custom iOS build to present to Apple to be signed. Domain expertise, familiarity with a code base, and just "simple" stuff like build/release engineering and QA aren't things you put together overnight.
>You make this sound hard: there are tons of qualified people who could do this in less than a week, including myself. We already have all of these tools just sitting around from the iPhone 4, and some of us have emulators for more recent devices: the only thing we don't have is Apple's key.
From the developer of cydia.
Well, yes and no. They do not come from a court (I've heard), so they are not a subpoena in the court sense, nor a court order. But they are an order to produce information, so I assume calling one a "subpoena" is correct, and I'm not arguing with you there. Just want to make clear for those reading without a law background that NSLs do not involve a court, which "subpoena" might imply.
An NSL (I've heard, hypothetical, yadda yadda) basically amounts to the FBI citing statute authority to demand information about a suspect and does not rest on, nor require, a court case. Indeed, the whole point the government makes about the nondisclosure aspect of an NSL is to keep a matter discreet from the investigated party for reasons of national security or imminent death (which a court case, on which to issue court-ordered subpoenas, would make far more difficult).
U.S. law specifically discusses upgrading an NSL to a court order in district court, for reasons of noncompliance.
But the guy who owned the phone can unlock it. Why not have a judge force him to unlock it? Why Apple?
Fingerprints can be used to unlock phones because your fingerprint is part of evidence.
Passcodes cannot be used to unlock phones because your passcode is information that's gained through testimony, and the 5th Amendment protects you from self-incrimination.
I'm guessing that the USG has done this, and they want to move the "debate" into a more public arena so they can get political muscle into a crypto ban. Yadda yadda terrorism leading to fake compromises and "balance". In an election year.
Cynical me expects false flag operations to prop this up further. I hope I'm just being jaded and negative.
No, since it is the actual legal authority that the government is actually seeking to use.
> What's preventing the Federal Government from issuing Apple a National Security Letter and forcing them to comply in secrecy?
There are legal bounds on NSLs, and NSLs are judicially reviewable and may be altered or voided by the courts if they are "unreasonable, oppressive, or otherwise unlawful".
Further, the nondisclosure orders that can be tied to NSLs (the "comply in secrecy" part) are limited (by Congressional action after the earlier broad use was struck down as unconstitutional) and are themselves judicially reviewable, so NSLs aren't a "get out of judicial review free" card, nor are they a "get secrecy without review free" card.
How can anyone be sure of that when the issuance and nature of every single NSL remains secret to this day?
> the relief the government seeks is unavailable because Congress has
considered legislation that would achieve the same result but has not
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. 
The reality is that the people who want to be able to decrypt at will are just pursuing every option available to them.
Actually I just noticed something about the title of the case: USA vs Black Lexus IS300. Is this actually a criminal forfeiture case?
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?
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...
This ruling notes any number of absurdities that this would entail. For instance, if congress passed a law requiring companies to provide aid X, and then unanimously repealed that law, the Government could go right on requiring aid X unless congress explicitly passed a law forbidding aid X.
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.
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,
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.
Would this case have come to the same result (which is likely to be appealed) if it was say UnluckySmallCo. instead of Apple that was on the receiving end of the government's pressure?
But if it was an open source crypto library, the feds could just fork it and leave you alone...
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.
Even if we're to believe the rhetoric that the Senate isn't going to appoint any candidate, nobody's even been nominated yet, so the idea that the whole system is broken may be true, but not for the reasons speculated.
I haven't seen any other avenues. (In fact, Apple cited laws on the books that expressly prohibit the FBI from making this type of request if it concerns a phone manufacturer.)
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".
- Dissent: O'Connor, joined by Rehnquist, Scalia, Thomas
- Dissent: Thomas
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
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?
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.
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.
"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."