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

blogs.reuters.com

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

#41

Post by guelo »

GigabyteCoin wrote: post #27

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.

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

#42

Post by wooter »

AnimalMuppet wrote: post #30
r00fus wrote: 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.

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.

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

#43

Post by avs733 »

GigabyteCoin wrote: post #27

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.

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

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

#44

Post by hsod »

GigabyteCoin wrote: post #27

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.

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

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

#45

Post by gpvos »

taylorwc wrote: post #20
msbarnett wrote: post #3

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/

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

#46

Post by dragonwriter »

joezydeco wrote: post #22
SEJeff wrote: post #18

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".

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

#47

Post by sumedh »

hsod wrote: post #44
GigabyteCoin wrote: post #27

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.

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

or maybe Apple is powerful

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

#48

Post by cpayne »

alblue wrote: post #28

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 "…

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!

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

#49

Post by username223 »

AnimalMuppet wrote: post #29
username223 wrote: post #9

Earlier quoted context omitted.

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 tha…

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.

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

#50

Post by dragonwriter »

GigabyteCoin wrote: post #27

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.

> 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.

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