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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]

#161

Post by richmarr »

zelcon5 wrote: post #130
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…

Am I the only one who sees how blind it is to continue citing 18th century politicians in 2016? Can we finally deprecate the "founding fathers"?

Considering even just the slice of human history that contained both written history and structured government, the 18th century is very recent. Personally I find it more 'blind' that we don't cite older sources.

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

#162

Post by lern_too_spel »

grey-area wrote: post #159
wildmusings wrote: post #116

Earlier quoted context omitted.

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

It's not exactly the situation as I understand it. Apple, with their current software, do not have a way to access this phone. They'd have to build a special neutered version, update the phone with it, then allow access. That they can do this since they control updates doesn't mean that they have already done it for their own purposes or wish to do it, or should be compelled to build a back door for the government.

That they can do it means they have a backdoor. It doesn't matter if it takes a day to write the code and flash a build to use it — that it is significantly easier for them to access data on the device than it is for anybody else means they have a backdoor.

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

#163

Post by bsbechtel »

jibalt wrote: post #143
euyyn wrote: post #102

Earlier quoted context omitted.

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.

The judge's reasoning was explicitly based on many of the Founders being members of the first Congress, so you have granted that the argument is completely bogus. And the point of the comment you're responding to is that the quoted argument is a non sequitur, which it surely is. The fact that the fifth Congress voted for a bad, self-serving law that violated the principles of the Constitution is completely irrelevant…

Government, and even individual administrations contradict themselves all the time, not unlike the rest of us, but sadly to the detriment of the Rule of Law and the Citizens subject to those laws.

The Obama Administration began with a bailout of the American auto industry, and here seven years later, it is pouring billions of dollars into self-driving vehicles that could disrupt that same industry. I'm sure there are examples to be found in every administration (and Congress) before Obama, all the way to the First Congress.

IMHO, I'm really glad that a judge decided to rule in a way that says the Government cannot contradict itself. I wish it happened more often.

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

#164

Post by fennecfoxen »

zardo wrote: post #148
anaptdemise wrote: post #139

Earlier quoted context omitted.

Although agree, ...with your position, I disagree in your reasoning. Corporations are persons because they are an organized group of people established to carry out the intentions and express the views, i.e. speech, of their members. Citizens United didn't screw campaign finance laws, it affirmed a breakdown of the intention of campaign finance laws. If a company can say, "we make our parts from recycled materials, t…

>Although agree, ...with your position, I disagree in your reasoning. Corporations are persons because they are an organized group of people established to carry out the intentions and express the views, i.e. speech, of their members. Is that why you invest in a company? So it can express your views for you? I do it because I would like to be able to retire some day, not because I support their polital efforts.

> Is that why you invest in a company?

Maybe, and maybe not, but remember that not all corporations are publicly traded on the stock market. Some organizations are incorporated under structures and tax rules like, say... the National Association for the Advancement of Colored People, a 501(c)(3) charity, or the American Federation of Labor and Congress of Industrial Organizations, a 501(c)(5) labor union, or the U.S. Chamber of Commerce, a 501(c)(6) business league, or Swift Boat Veterans For Truth, a 527 organization, or Universal Life Church, a 508(c)(1)(a) religious organization. All of these have engaged in free speech activities, often overtly political ones.

Some corporations are privately held and across the pond, the Crown itself is "a corporation sole that represents the legal embodiment of executive, legislative, and judicial governance" in the King or Queen of England (not relevant to US free speech so much but potentially interesting as a corporate structure).

Personally, I'd hope that a publicly traded for-profit corporation that I (partially) own would spend/invest its money wisely, to increase the value not only of my shares, but my interests in life in general. However, the value of my shares is one particularly compelling and immediate interest, and also much easier to measure results on than the others, and political spending may or may not be in my overall interest, so I agree that skepticism on such spending is warranted.

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

#165

Post by jessaustin »

ikeboy wrote: post #119
acqq wrote: post #66

Earlier quoted context omitted.

> 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.

You're talking about e.g. EPA deciding to regulate a dangerous-but-previously-unregulated chemical. In that case it's reasonable for EPA to declare that it will regulate the chemical. FBI doesn't get to make such declarations with respect to its own investigatory powers.

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

#166

Post by [deleted] »

Arnt wrote: post #154
jibalt wrote: post #143

Earlier quoted context omitted.

The judge's reasoning was explicitly based on many of the Founders being members of the first Congress, so you have granted that the argument is completely bogus. And the point of the comment you're responding to is that the quoted argument is a non sequitur, which it surely is. The fact that the fifth Congress voted for a bad, self-serving law that violated the principles of the Constitution is completely irrelevant…

How many members of the 1st were still members of the 5th?

[deleted]

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

#167

Post by jessaustin »

rtpg wrote: post #122
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

This is super dismissive of the actual legal arguments, and basically preaching to the choir. The gov'ts interpretation is that "If the court issues a search warrant, we can coerce third parties into cooperation." A specific usage of the AWA, which basically says "The courts can coerce people to do things to enforce rulings". This leads to relatively non-controversial things like asking apartment landlords to open do…

...asking apartment landlords to open doors to the house.

This is a courtesy extended to likely political donors. If the landlord doesn't open the door, they don't take her to court, they just break it down. This courtesy is not extended to private homeowners.

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

#168

Post by cokernel »

Arnt wrote: post #154
jibalt wrote: post #143

Earlier quoted context omitted.

The judge's reasoning was explicitly based on many of the Founders being members of the first Congress, so you have granted that the argument is completely bogus. And the point of the comment you're responding to is that the quoted argument is a non sequitur, which it surely is. The fact that the fifth Congress voted for a bad, self-serving law that violated the principles of the Constitution is completely irrelevant…

How many members of the 1st were still members of the 5th?

The 1st US Congress had 29 senators and 66 representatives (95 distinct people), not all simultaneously, while the 5th US Congress had 45 senators and 118 representatives (162 distinct people, as Andrew Jackson served as both a representative and a senator during this period)[0].

Of the 95 members of the 1st US Congress, 21 (~22%) of them were members of the 5th US Congress, with the following breakdown:

* 5 senators (~17%) remained senators;

* 9 representatives (~14%) remained representatives; and

* 7 representatives (~11%) became senators.

Notes: John Brown was initially a representative of Virginia, then later became a senator of Kentucky (which was part of Virginia at the time of the 1st US Congress). William Smith (MD; 1st US House), William L. Smith (SC; 1st US House), and William Smith (SC; 5th US House) were all different people.

Method: moderately careful transcription plus grep, perl, sort, uniq, and comm.

EDIT: Thanks for adventured for the correction. I mistranscribed Philip Schuyler's name when copying down the members of the 5th US Congress.

[0] I didn't independently check the lists on Wikipedia[1][2].

[1] https://en.wikipedia.org/wiki/1st_United_States_Congress

[2] https://en.wikipedia.org/wiki/5th_United_States_Congress

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

#169

Post by mineshaftgap »

cpayne wrote: post #48
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 "…

Well written. I know we hear a lot of doom and gloom, but I think it's a fantastic time we live in. Not only do we have the transparency of the courts (which is good, but I don't understand it), we have an article summarising it. We then have the author available for comment. I don't have any questions or feedback, but if I did, I feel confident you would respond appropriately. I know we are far from perfect world bu…

Thank you. Doom and apathy are co-conspirators.

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

#170

Post by adventured »

cokernel wrote: post #168
Arnt wrote: post #154

Earlier quoted context omitted.

How many members of the 1st were still members of the 5th?

The 1st US Congress had 29 senators and 66 representatives (95 distinct people), not all simultaneously, while the 5th US Congress had 45 senators and 118 representatives (162 distinct people, as Andrew Jackson served as both a representative and a senator during this period)[0]. Of the 95 members of the 1st US Congress, 21 (~22%) of them were members of the 5th US Congress, with the following breakdown: * 5 senators…

The only thing I noticed about your data, is it appears there were five senators that were present in both:

James Gunn (GA), John Henry (MD), John Langdon (NH), Philip Schuyler (NY), Theodore Foster (RI)

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