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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]

#101

Post by swyman »

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 "…

Great article! Friendly suggestion: in the following sentence, I'd remove "explicitly" because the judge reasons that congressional rejection can take more forms than an explicit legislative ban (ie the comprehensiveness of CALEA combined with no explicit direction on this specific issue would be an implicit rejection).

> The Judge disagreed, saying that the All Writs Act cannot be used to compel companies to do things that congress has explicitly rejected

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

#102

Post by euyyn »

poof131 wrote: post #94
Amezarak wrote: post #78

Earlier quoted context omitted.

> 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referenced describes how the law helped propel the Jeffersonian Democratic-Republicans to power at which point it was repealed.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.

The judge's point is "It's absurd to think the AWA was intended to be usable in this way, because it'll mean the first Congress was undermining the principles of the Constitution that they themselves wrote".

You parent's point is "The fifth Congress did in fact undermine those principles in another case, so it's not so absurd to think that the AWA was intended as the government now claims".

Granted, first vs fifth.

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

#103

Post by kevin_thibedeau »

HelloMcFly wrote: post #65
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.

I have a most difficult time believing SCOTUS would deadlock on this issue as it should scratch the "personal property, limited government, narrow interpretation" itch of the conservative justices and the civil rights itch of the liberal justices.

Those same conservative justices who have no problem with eminent domain being used to enrich private entities.

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

#104

Post by kelnos »

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…

This modification would require having iOS source to modify, which certainly the FBI does not have.

And even if they did, it would take them months from receiving the source code to be even remotely prepared to do a custom iOS build to present to Apple to be signed. Domain expertise, familiarity with a code base, and just "simple" stuff like build/release engineering and QA aren't things you put together overnight.

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

#105

Post by kahirsch »

thephyber wrote: post #82
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.

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.

> the NSL comes with a gag order which prevents even the council of the recipient from knowing about the issue.

That was changed with the USA PATRIOT Reauthorization Act of 2005.

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

#106

Post by jim-greer »

Best quote from the ruling:

"As far as I can discern from the record, Feng did not at any time 'rent, lend, lease, sell, redistribute or sublicense' Apple's software; what he did 'sell' or 'redistribute' was methamphetamine - a course of conduct in which Apple was not involved."

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

#107

Post by baddox »

poof131 wrote: post #94
Amezarak wrote: post #78

Earlier quoted context omitted.

> 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.

It may show that the process "works" (never mind how much it sucked for the actual humans threatened by the law while it was in place), but it still weakens the argument about the intent of the founding fathers.

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

#108

Post by jlgaddis »

gregshap wrote: post #72

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

What happens if you aren't successful at #3 and the vote passes?

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

#109

Post by extesy »

banku_brougham wrote: post #88
j_koreth wrote: post #53

Earlier quoted context omitted.

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.

There's a site dedicated to explaining various xkcd: https://www.explainxkcd.com/wiki/index.php/149:_Sandwich

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

#110

Post by kenshaw »

dragonwriter wrote: post #59
clamprecht wrote: post #57

Earlier quoted context omitted.

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 .

Great, so we end up with another executive branch of the government that also has judicial oversight and the ability to prosecute?

Rhetoric aside, if the Supreme Court rules in favor of the FBI in this matter, we, the people, have created a branch of government that is both Judge and Jury. How long before they seek to also be Executioner?

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