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Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf]

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31–40 of 198 posts

Re: Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf]

#31
post #16

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 exe…

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."

Re: Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf]

#32

Earlier quoted context omitted.

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...

Re: Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf]

#33

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.

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

Re: Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf]

#34
post #33

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.

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?

Re: Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf]

#35

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.

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.

Re: Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf]

#36
post #12

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 juris…

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

Re: Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf]

#37

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.

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.

Re: Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf]

#38
post #36
post #12

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 juris…

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.""

Re: Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf]

#39
post #13

Earlier quoted context omitted.

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?

Re: Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf]

#40
post #16

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 exe…

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