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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]

#91

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?

Generally, current litigation doesn't reference other current litigation (mostly because current litigation has not established enough of a "fact" to be referenced), but you can read this statement and see that Orenstein allowed Apple to submit a brief while this case seemed to be going stale in-between the guilty plea of the defendant and his sentencing, precisely because it was being held up in 9 other cases of the "government" (whether that be the FBI in the San Bernardino case, or the DEA in this case, to the plain Chicago PD in another) leveraging the AWA to compel Apple to open this and other phones by some means.

I'm also not a lawyer, but I can see how this helps Apple in fighting the AWA used to compel them to unlock or decrypt phones seized as evidence in part of some crime where Apple was not alleged as a perpetrator or coconspirator of the crime.

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

#93
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.

>> 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?

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

#94
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…

I’m not sure what your point is or how it contradicts the part of the opinion you quoted. Sure, the founding fathers weren’t perfect and the sedition act seems downright deplorable, but the wiki article you referenced describes how the law helped propel the Jeffersonian Democratic-Republicans to power at which point it was repealed. Seems like the process worked pretty well.

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

#95
post #64

Earlier quoted context omitted.

>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

>In an interesting work-around, Levison complied the next day by turning over the private SSL keys as an 11 page printout in 4-point type. The government, not unreasonably, called the printout “illegible.” >“To make use of these keys, the FBI would have to manually input all 2,560 characters, and one incorrect keystroke in this laborious process would render the FBI collection system incapable of collecting decrypted…

This never made much sense to me. Even the capital letter W at 12 point repeated 2,560 times fills up 1 page plus another 10 lines. Maybe 2,560 bytes printed out as ones and zeros? That still seems like it would only work out to 11 pages at 12 point.

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

#96
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.

>> 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?

Because you have a right not to incriminate yourself.

Fingerprints can be used to unlock phones because your fingerprint is part of evidence.

Passcodes cannot be used to unlock phones because your passcode is information that's gained through testimony, and the 5th Amendment protects you from self-incrimination.

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

#97
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.

>> 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?

Because you have a right not to incriminate yourself.

Fingerprints can be used to unlock phones because your fingerprint is part of evidence.

Passcodes cannot be used to unlock phones because your passcode is information that's gained through testimony, and the 5th Amendment protects you from self-incrimination.

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

#98
post #43

Earlier quoted context omitted.

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

Has anyone ever successfully done so? I thought the sheer nature of an NSL (not even being allowed to tell your wife or lawyer about it) made that route impossible.

Yes people have, and they won [1]. The Patriot Act tried really hard to walk the line between disallowing counsel and making the retaining of counsel extremely difficult...

[1] https://www.eff.org/cases/re-matter-2011-national-security-l...

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

#99
post #56
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…

Well that's just like, your opinion, man.

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

#100
post #64

Earlier quoted context omitted.

>In an interesting work-around, Levison complied the next day by turning over the private SSL keys as an 11 page printout in 4-point type. The government, not unreasonably, called the printout “illegible.” >“To make use of these keys, the FBI would have to manually input all 2,560 characters, and one incorrect keystroke in this laborious process would render the FBI collection system incapable of collecting decrypted…

This never made much sense to me. Even the capital letter W at 12 point repeated 2,560 times fills up 1 page plus another 10 lines. Maybe 2,560 bytes printed out as ones and zeros? That still seems like it would only work out to 11 pages at 12 point.

[deleted]
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