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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]

#71

Post by dragonwriter »

colinbartlett wrote: post #69
dragonwriter wrote: post #54

Earlier quoted context omitted.

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.

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.

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

#72

Post by gregshap »

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

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

#73

Post by dragonwriter »

rqebmm wrote: post #56
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…

> 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.

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

#74

Post by jsmthrowaway »

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.

> 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.

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

#75

Post by AnimalMuppet »

CiPHPerCoder wrote: post #39
AnimalMuppet wrote: post #30

Earlier quoted context omitted.

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...

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

#76

Post by joering2 »

HelloMcFly wrote: post #63
thesimon wrote: post #52

Earlier quoted context omitted.

>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'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...

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

#77

Post by mmanfrin »

rqebmm wrote: post #56
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…

  The context the law was originally written in is just fluff.
You have never actually studied law, have you?

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

#78

Post by Amezarak »

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…

> 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

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

#79

Post by phkahler »

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.

>> 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?

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

#80

Post by swyman »

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.

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