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

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

#51

Post by alblue »

cpayne wrote: post #48
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 bu…

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

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

#52

Post by thesimon »

guelo wrote: post #41
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.

>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.

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

#53

Post by j_koreth »

gpvos wrote: post #45
taylorwc wrote: post #20

Earlier quoted context omitted.

> 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

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

#54

Post by dragonwriter »

thesimon wrote: post #52
guelo wrote: post #41

Earlier quoted context omitted.

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 s…

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.

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

#55

Post by msbarnett »

kirykl wrote: post #24

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.

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

#56

Post by rqebmm »

matsur wrote: 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…

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.

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

#57

Post by clamprecht »

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.

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

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

#58

Post by SEJeff »

dragonwriter wrote: post #46
joezydeco wrote: post #22

Earlier quoted context omitted.

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 dec…

^ This is the correct answer

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

#59

Post by dragonwriter »

clamprecht wrote: post #57
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.

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.

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

#60

Post by GigabyteCoin »

thesimon wrote: post #52
guelo wrote: post #41

Earlier quoted context omitted.

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 s…

>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

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