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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]

#111

Post by grumio »

chris_wot wrote: post #86
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…

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.

More like making a locksmith create a tool that could alter a pick-proof lock and turn it into a pickable lock, and give that tool to the gov't. But as others here have said, there are some key differences between the physical and digital worlds, so there are complications afterwards.

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

#112

Post by belovedeagle »

jim-greer wrote: post #106

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."

Interesting... I thought that was the worst bit, at least in terms of substance. The government had raised the point that Apple [claims to?] own the software on the iPhone, and that they had to take the ill effects of that ownership along with the beneficial. I'm not so sure about that legal argument, but Orenstein decided to ignore it completely and offer humor instead. It was a blemish on an otherwise-excellent analysis, although I can't help but feel that he's put rather a lot of his personal views into this order.

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

#113

Post by taylorwc »

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.

You're right that a tiny portion of the general population would know what sudo is, but surely among HN readers there is a huge base that would understand, or at least grok what it is after a quick search.

Not advocating that HN isn't for non-tech-people, just saying that neither the reference nor the xkcd were out of place for this audience.

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

#114

Post by hueving »

rpgmaker wrote: post #40
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…

Thanks for highlighting this, given that "congress should change the law" is Cook's favorite cop out strategy at the moment.

Can you explain why you think him pointing out that he thinks the FBI has stepped out of bounds is a cop out? Isn't that the entire argument?

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

#115

Post by lmitchell »

maxander wrote: post #67
rqebmm wrote: post #56

Earlier quoted context omitted.

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…

Read much about legal cases and you'll quickly realize how little "the letter" of a law (or any other collection of words) really, unambiguously conveys. Context is a necessary fallback in the interpretation of law just as it is in day-to-day conversation. I haven't read this document in detail, but from what's quoted here it seems pretty obvious that the judge's argument isn't strong enough without reference to the…

This is the one thing I really took away from (way too much) recent reading about Scalia and textual originalism - in my opinion, it's almost downright foolish to obey 'the letter' of the original law, and it's completely right of anyone asked to judge based on the law to do just that. I think it'd be kind of stupid in this case in particular and in all cases in general to ignore the context surrounding the law, both at the time it was written and in the present day.

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

#116

Post by wildmusings »

lern_too_spel wrote: post #84
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 backdo…

It's a shame that you're being downvoted. This is exactly what the situation is.

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

#118

Post by studentrob »

This is not the end. The San Bernardino case will be appealed, and somewhere in the midst of that we're going to see new bills from the legislature.

One bill, set for release in March, could require encrypted devices to be able to give un-encrypted data to law enforcement. Feinstein says the bill is "coming along ... some people are making it a lot harder than we think it needs to be". An alternate proposal is also on the table from McCaul and Warner,

http://www.politico.com/tipsheets/morning-cybersecurity/2016...

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

#119

Post by ikeboy »

acqq wrote: post #66
dragonwriter wrote: post #59

Earlier quoted context omitted.

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 .

> AWA allows courts to order anything so long as neither the Constitution nor laws passed by Congress explicitly forbid it. And that interpretation the judge considers absurd: "the government's construction of the AWA produces absurd results in application. If, for example the President sent to Congress a bill explicitly authorizing a court to issue the kind of order the government seeks here, and if every single mem…

Wouldn't the same argument apply to any time congress delegates authority? I.E. They allow some agency to decree certain things with the force of a law. Whatever that agency decides within the bounds of the constitution is law, even if congress debated that point and didn't expressly permit it.

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

#120

Post by GigabyteCoin »

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.

>forcing them to sign non-Apple software as if it was their own is compelled speech.

That may be. However, simply forcing them to hand over the key wouldn't imho.

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