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Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf] (reuters.com)
797 points by coloneltcb on Feb 29, 2016 | hide | past | web | favorite | 188 comments



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."


And

"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:

http://www.reuters.com/article/us-apple-encryption-deny-idUS...

"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."


> 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.

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. [1] 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.

https://en.wikipedia.org/wiki/Alien_and_Sedition_Acts


I’m not sure what your point is or how it contradicts the part of the opinion you quoted. Sure, the founding fathers weren’t perfect and the sedition act seems downright deplorable, but the wiki article you referenced describes how the law helped propel the Jeffersonian Democratic-Republicans to power at which point it was repealed. Seems like the process worked pretty well.


The judge's point is "It's absurd to think the AWA was intended to be usable in this way, because it'll mean the first Congress was undermining the principles of the Constitution that they themselves wrote".

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.


The judge's reasoning was explicitly based on many of the Founders being members of the first Congress, so you have granted that the argument is completely bogus.

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.


Government, and even individual administrations contradict themselves all the time, not unlike the rest of us, but sadly to the detriment of the Rule of Law and the Citizens subject to those laws.

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.


I was skeptical of the claim that the current administration is "pouring billions of dollars into self-driving vehicles," but you're correct.

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.


That's a really bad example.

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.


Many of the founders were also in the fifth congress, and a founder signed them into law.

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.


How many members of the 1st were still members of the 5th?


The 1st US Congress had 29 senators and 66 representatives (95 distinct people), not all simultaneously, while the 5th US Congress had 45 senators and 118 representatives (162 distinct people, as Andrew Jackson served as both a representative and a senator during this period)[0].

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.

[0] I didn't independently check the lists on Wikipedia[1][2].

[1] https://en.wikipedia.org/wiki/1st_United_States_Congress

[2] https://en.wikipedia.org/wiki/5th_United_States_Congress


The only thing I noticed about your data, is it appears there were five senators that were present in both:

James Gunn (GA), John Henry (MD), John Langdon (NH), Philip Schuyler (NY), Theodore Foster (RI)


Thanks, I've fixed it.


I thought there might be some interest in knowing how people who were in both the 1st and 5th Congresses voted on the Alien and Sedition Acts. This actually consists of four distinct acts, and I chose to focus on An Act concerning Aliens (the second of the four acts).

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.


Thanks for the details! The party line vote makes sense - the Democratic-Republicans believed the bills were targeted at them. I did not know the specific composition of the first Congress and the fifth Congress; that's good to know.


It may show that the process "works" (never mind how much it sucked for the actual humans threatened by the law while it was in place), but it still weakens the argument about the intent of the founding fathers.


It's not hard to imagine that the founders intended certain principles to be respected, but later broke those principles when it benefitted them.

That's aside from that congress in 1798 probably didn't have a majority of founders etc.


mmmmmmmmmmmmmmmmmmmmmmmm


Am I the only one who sees how blind it is to continue citing 18th century politicians in 2016? Can we finally deprecate the "founding fathers"?


It's a fairly basic principle that, while a law can be written in such a way that changing context is relevant to its application, it's meaning doesn't change unless a legislative act changes the law itself. So, no, when it comes to laws passed in 1789, we can't stop looking to what it meant in 1789.


Considering even just the slice of human history that contained both written history and structured government, the 18th century is very recent. Personally I find it more 'blind' that we don't cite older sources.


Who would you prefer we cite, if not those who wrote the laws that are being argued?


Time is relevant. It should not be treated like a footnote in considering the importance of certain laws. If Thomas Jefferson were alive today, I think he would have used military force against Apple, or at the very least threatened Tim Cook to a duel.

To answer your question, the judges should cite their own judgement.


So your argument is that, because a lot of time has passed since the All Writs Law was passed, judges should take it to mean whatever they want it to mean.

On that bit about you seeing what all others fail to see, I suggest that you look up "The Dunning-Kruger Effect".


That you mischaracterize Jefferson as a duelist suggests that you are not sufficiently well versed in history to judge its value.


Hm. Maybe Adams. It was Jefferson who pardoned those Adams imprisoned for sedition.


If you can refactor the US Code, you will either be a billionaire or dead by morning.


Being the only one who sees something is an almost certain indication of being in error. In this case, your errors are remarkably numerous for such a short comment.


Thanks for highlighting this, given that "congress should change the law" is Cook's favorite cop out strategy at the moment.


Yes, this Judge seems to agree with Cook that an act of congress is required before the FBI has the power to compel Apple's assistance in this instance.

I suspect your down votes are due to the use of the phrase 'cop out'.


Can you explain why you think him pointing out that he thinks the FBI has stepped out of bounds is a cop out? Isn't that the entire argument?


That's not what I said. I was talking about the "congress should change the law" argument specifically. The FBI order wouldn't suddenly be ok just because congress passed a law but it sure would make it all more convenient for Apple since it would remove their "choice" in the matter and thus sidestepping a protracted legal battle with the government. All of us would be screwed though.

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.


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.


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.


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.


Maybe the principle of the law; as opposed to the letter of the law. The legislature writes, literally, thousands of bad laws and SCOTS sees a handful of edge cases. I, as an optimist think that the individuals in the process of passing poorly written, or otherwise, compromised laws "have their hearts in the right place"(tm). It is the process, and our acceptance of the corruption of said, that justifies the creation of the separation of powers. No matter the intent, consolidation of power ultimately leads to corruption. "It is not power that corrupts. Possibly power allows the corruptible to show their true selves." For ultimate power is not having to say you're sorry, only that "I'm right. Full f*ckn.stop."

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 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.


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!


>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.


> 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.


> Is that why you invest in a company?

> I personally am anoyed that, now, every purchase I make is a political statement.

[sic]

Edit:

"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."

http://www.marketwatch.com/story/warren-buffett-says-america...

"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.[2]"

https://en.m.wikipedia.org/wiki/Series_E_bond

... 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."

https://en.m.wikipedia.org/wiki/Boycott#Notable_boycotts

Edit 2:

This is one of the startups at a pitch day I attended recently, so sinking karma on an edit/self reply...

http://the-citizenry.com/pages/about#philosophy

"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 context the law was originally written in is just fluff

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.


> 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.

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.
You have never actually studied law, have you?


Your point is obviously part of a much bigger legal philosophy debate, but one problem with your pov is that legal code is not that precise. It's much less precise than computer code for example, and even computer code produces tons of bugs due to the programmer not being precise enough. So the legal text by itself is often ambiguous and judges have to guess what the legislators meant to write.


"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."

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.


Well that's just like, your opinion, man.


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).


Also revealing, Apple documented to this judge other AWA-based requests made in the last months:

"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"


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


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.""


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.


> sudo do whatever I want

What a fantastic way of putting it. Makes the point and good for a chuckle.


Just in case someone doesn't get the reference: https://xkcd.com/149/


I think this stands without being a reference


Non-tech people read this site too. What % of the general population knows what sudo is? My auto-correct changes 'sudo' to 'Audi'. The real problem is that the xkcd reference doesn't explain what sudo means.


This is tech site. If you are see something you don't understand, you should just google it.

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 trying to "protect" anyone. Thing is, even googling sudo doesn't give someone who has never sudo'ed the insight behind the comic. So, yep.


You're right that a tiny portion of the general population would know what sudo is, but surely among HN readers there is a huge base that would understand, or at least grok what it is after a quick search.

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.


There's a site dedicated to explaining various xkcd: https://www.explainxkcd.com/wiki/index.php/149:_Sandwich


we shouldn't be explaining something using the xkcd which doesn't illuminate the topic at all and further needs to be explained.


Oh boy. Turtles all the way down.


It's not really a reference. It's just the same joke. I am pretty sure I have saw "sudo <real life action>" as a joke around the internet long before xkcd did it.


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


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.


> 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.


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.


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.


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?


> 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?

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.


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.


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


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.


Great, so we end up with another executive branch of the government that also has judicial oversight and the ability to prosecute?

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?


This is super dismissive of the actual legal arguments, and basically preaching to the choir.

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.


...asking apartment landlords to open doors to the house.

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.


> 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.

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


+1 sudo indeed


`sudo rm -rf /privacy`


I've written up the piece for InfoQ here:

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...


Great article! Friendly suggestion: in the following sentence, I'd remove "explicitly" because the judge reasons that congressional rejection can take more forms than an explicit legislative ban (ie the comprehensiveness of CALEA combined with no explicit direction on this specific issue would be an implicit rejection).

> The Judge disagreed, saying that the All Writs Act cannot be used to compel companies to do things that congress has explicitly rejected


Thanks for the suggestion. Will do.


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!


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


I've written a follow up piece covering the hearings held today before the house judicial committee which may be of interest to those reading this thread

http://www.infoq.com/news/2016/03/apple-fbi-congress


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.


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.


>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.


>it seems like only metadata can be requested, not arbitrary stuff

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" [0] which imho would be no different that forcing apple to turn over a software-signing key.

[0] https://en.wikipedia.org/wiki/Lavabit


>In an interesting work-around, Levison complied the next day by turning over the private SSL keys as an 11 page printout in 4-point type. The government, not unreasonably, called the printout “illegible.”

>“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.

http://www.wired.com/2013/10/lavabit_unsealed/


This never made much sense to me. Even the capital letter W at 12 point repeated 2,560 times fills up 1 page plus another 10 lines. Maybe 2,560 bytes printed out as ones and zeros? That still seems like it would only work out to 11 pages at 12 point.


I'm not sure, but maybe there were multiple keys, each of which took 2560 characters? The quote does say "keys".


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.


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.


> 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.


Who's to say they haven't already tried actually? From what I understand, an NSL could be presented and it's validity argued but it would never be presented in an open court.


> From what I understand, an NSL could be presented and it's validity argued but it would never be presented in an open court.

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.


They'd likely argue that forcing them to sign non-Apple software as if it was their own is compelled speech.


However looking at Lavabit example they could do the same with Apple - ask them for the key (in digital form so Apple won't print it with font size 4) and then sign their trojan software themselves using it!

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...


Lavabit did it to themselves. They initially subpoenaed just the account they were interested in. Lavabit claimed it was not possible to comply, so the next request was for master keys.

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.


>forcing them to sign non-Apple software as if it was their own is compelled speech.

That may be. However, simply forcing them to hand over the key wouldn't imho.


To be fair, Lavabit was out of compliance with legal government orders (they had access to accounts but was withholding on moral grounds). Forcing Apple to hand over "the keys to the kingdom" so as to forge software on their behalf might still lie outside of established governmental powers.


If Apple isn't allowed to publicize that their private key is compromised, then using their private key to sign something is effectively compelled speech.


I hope I'm not stretching an analogy too broadly, but forcing Apple to rewrite it's OS seems to me like it would equivalent of making a locksmith who had invented a theoretical pick-proof lock uninstall each of the locks, open it up and introduce a mechanism to allow for a skeleton key, then reinstall the lock.


More like making a locksmith create a tool that could alter a pick-proof lock and turn it into a pickable lock, and give that tool to the gov't. But as others here have said, there are some key differences between the physical and digital worlds, so there are complications afterwards.


This modification would require having iOS source to modify, which certainly the FBI does not have.

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.


https://news.ycombinator.com/item?id=11153022

>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.


If multiple people have the know-how to make this in a week, I can't see it costing more than $25,000, probably less. (Just taking $1 million a year and dividing by 50 and rounding up, trying to get an upper bound. Presumably at least of those people are willing to sell out for a million a year, or 25k a week.)


> A NSL is a subpoena, meaning an order to produce information.

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.


>> Apple does not have the information being sought

But the guy who owned the phone can unlock it. Why not have a judge force him to unlock it? Why Apple?


Because you have a right not to incriminate yourself.

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.


Haven't some courts been going back and forth on whether it's 5th amendment kosher to compel someone to enter a passphrase and decrypt data on disk? I seem to remember a case involving mortgage fraud or similar.


Isn't he dead?


"Isn't he dead?"

Different case.


Oh, right, thanks.


Could the government subpoena Apple's signing keys and use that to build, sign and install their own iOS modification?


That's an incredibly interesting question. Why doesn't the USGov just spam Apple with NSLs?

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.


> Isn't the All Writs Act just a red herring in this whole debate?

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.


Perhaps the reason is that they cannot issue NS letters every time they need an access to someone's iPhone, so they are trying to make Apple create for them a tool that they can re-use in all other cases.

Edited typo.


Maybe NSLs aren't as powerful or as easy to produce as we think


or maybe Apple is powerful


Or maybe Apple has a substantially reasonable argument and is willing to spend the resources on sending it to court.


That might be (arguably) relevant in San Bernadino, but would be a serious stretch in a methamphetamine distribution case.


>serious stretch

How can anyone be sure of that when the issuance and nature of every single NSL remains secret to this day?


I would suspect that they are worried Apple would challenge and potentially win against the NSL...


Has anyone ever successfully done so? I thought the sheer nature of an NSL (not even being allowed to tell your wife or lawyer about it) made that route impossible.


Yes people have, and they won [1]. The Patriot Act tried really hard to walk the line between disallowing counsel and making the retaining of counsel extremely difficult...

[1] https://www.eff.org/cases/re-matter-2011-national-security-l...


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

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

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

[4]: http://www.cnbc.com/2016/02/24/apple-is-said-to-be-working-o...


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.


"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."


It is also worth reading Apple's motion in this case: https://www.documentcloud.org/documents/2722199-5-15-MJ-0045...

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


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.


> 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?


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...


It seems that applications for search warrants are also USA vs <property-to-be-searched> cases.


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


In the extreme, the Government's proposed interpretation could be used to require safe manufacturers to build tools for the government to break into safes with, paper shredder manufacturers to build devices to stick shredding back together, drug companies to manufacture lethal injection drugs they did not wish to, or anybody to do anything that a DA thinks will help advance a case, provided that the legislature has not specifically passed a law prohibiting them from doing so.

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.


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.


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


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.


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.


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...


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.


I've seen a lot of doom and gloom about the current state of the US government all around the internet, but I have to say that this kind of thing helps me remain optimistic. A judge is free to make his or her decision without fear of coercion or some fanciful Tom Clancy-esque story unfolding as some people seem to believe things to work. The system may be flawed, but it's not broken yet.


I would feel a lot more confident about the US's overall state of corruption if the defendant in this case weren't the largest capitalized company in the world.

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?


If UnluckySmallCo. had created a phone that was used by defendants in nine separate cases, they probably would be big enough to handle it.


Let's look at it from a different angle: What if you were a GNU/Linux distro maintainer and nine defendants had used your OS instead of Windows? Could you be forced to help the FBI?


Or you maintained an open source crypto library? Yeah, that might be tougher.

But if it was an open source crypto library, the feds could just fork it and leave you alone...


the fact that the government is creating so many cases, hoping one sticks, isn't a good sign to me. lavabit didn't fare so well.


I thought the defendant in this case was a drug dealer.


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.


In the event of a tie, the the lower court is the tie-breaker. Having an even number of justices doesn't break the court, and even if it did, it'd be another long while before this case could be appealed that high anyway.

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.


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).


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.


The FBI needs some legal basis for forcing Apple to develop and cryptographically sign a less-secure version of their operating system. This order, assuming it's not overturned by a higher court on appeal, removes one legal avenue the FBI had.

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.)


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.


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.


> 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".


^ This is the correct answer


A tie in SCOTUS does not create binding precedent. Other circuit courts would be free to disagree, and a later SCOTUS could rule against the government.


I have a most difficult time believing SCOTUS would deadlock on this issue as it should scratch the "personal property, limited government, narrow interpretation" itch of the conservative justices and the civil rights itch of the liberal justices.


Those same conservative justices who have no problem with eminent domain being used to enrich private entities.


Kelo:

- Dissent: O'Connor, joined by Rehnquist, Scalia, Thomas

- Dissent: Thomas


Wouldn't that be this decision? And thus unfavorable to the government?


... for that Circuit only.


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.


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


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


risky!


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?


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.


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.


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.


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."


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.


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


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


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


mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm


What happens next -- US DOJ appeals?


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


They can not force Apple to do anything. Period.


Yes, actually, they can. In any case, Apple has said that they will follow what the courts decide, however reluctantly.


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


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.


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?


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




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