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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]

#81

Post by [deleted] »

acqq wrote: post #31
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…

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 whe…

[deleted]

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

#82

Post by thephyber »

dragonwriter wrote: post #54
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 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.

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

#83

Post by studentrob »

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?

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

#84

Post by lern_too_spel »

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

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.

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

#85

Post by thephyber »

sumedh wrote: post #47
hsod wrote: post #44

Earlier quoted context omitted.

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.

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

#86

Post by chris_wot »

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…

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.

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

#88

Post by banku_brougham »

j_koreth wrote: post #53
gpvos wrote: post #45

Earlier quoted context omitted.

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.

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

#90

Post by an_account »

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.

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