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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]

#181

Post by sandworm101 »

This case does not bode well for the CA case.

The general consensus amongst lawyers is that this situation, the unlocking scenario, will require either congress or the supreme court to weigh in. Congress is out to lunch for the next year or so. But to get a ruling from the supreme court one needs a controversy. Ideally, that would be two identical cases with different interpretations by different appellate courts. This judge has taken the first step. I suspect the CA judge will go the opposite way, starting the progress up the system towards the supremes.

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

#182

Post by niels_olson »

zelcon5 wrote: post #134
kevinskii wrote: post #133

Earlier quoted context omitted.

Who would you prefer we cite, if not those who wrote the laws that are being argued?

Time is relevant. It should not be treated like a footnote in considering the importance of certain laws. If Thomas Jefferson were alive today, I think he would have used military force against Apple, or at the very least threatened Tim Cook to a duel. To answer your question, the judges should cite their own judgement.

If you can refactor the US Code, you will either be a billionaire or dead by morning.

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

#184

Post by leemalone1967 »

leemalone1967 wrote: post #183
leemalone1967 wrote: post #147

They can not force Apple to do anything. Period.

They can not force Apple if it implies invading the privacy Of Apple customers.

If they allow it, will be opening a can of worms. The FBI can do as they want. Apple is protecting the pravacy of all its customers. Its a violation of privacy do what FBI is asking.

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

#185

Post by rpgmaker »

hueving wrote: post #114
rpgmaker wrote: post #40

Earlier quoted context omitted.

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?

That's not what I said. I was talking about the "congress should change the law" argument specifically. The FBI order wouldn't suddenly be ok just because congress passed a law but it sure would make it all more convenient for Apple since it would remove their "choice" in the matter and thus sidestepping a protracted legal battle with the government. All of us would be screwed though.

I say this as someone that admire Cook's leadership on this issue but let's not be confused: at the end of the day he doesn't answer to you or me but to Apple's shareholders. I understand he needs to seem reasonable to the average American that may not understand Apple's argument as well as most people on HN but we can't let him sell us out in the process.

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

#186

Post by Amezarak »

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…

Many of the founders were also in the fifth congress, and a founder signed them into law.

My argument is that the premise that the law can't be interpreted according to the governments wishes because the noble founders would have never written a law violating constitutional principles is clearly false, because they did so on more than one occasion.

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

#187

Post by nickodell »

ikeboy wrote: post #174
jessaustin wrote: post #165

Earlier quoted context omitted.

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.

If Congress debates whether they should ban the chemical and decides not to pass anything, does the EPA still have that right? If yes, what's the difference?

When establishing the EPA, Congress wrote a law saying "All dangerous chemicals will be banned. The EPA will define what 'dangerous chemicals' means." (Actually, the first iteration of the EPA just gave grants to local organizations to clean up pollution, but I'm ignoring that for the moment.)

'Is this chemical dangerous?' is a specific question with a specific scientific and medical answer. 'Is this a dangerous use of federal power?' is an inherently subjective question. So, that would be one reason why your example doesn't raise the same constitutional concerns as the FBI's request.

Second, being able to ban chemicals is a power that is much more limited than the power to make arbitrary companies do arbitrary things.

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

#188

Post by ikeboy »

nickodell wrote: post #187
ikeboy wrote: post #174

Earlier quoted context omitted.

If Congress debates whether they should ban the chemical and decides not to pass anything, does the EPA still have that right? If yes, what's the difference?

When establishing the EPA, Congress wrote a law saying "All dangerous chemicals will be banned. The EPA will define what 'dangerous chemicals' means." (Actually, the first iteration of the EPA just gave grants to local organizations to clean up pollution, but I'm ignoring that for the moment.) 'Is this chemical dangerous?' is a specific question with a specific scientific and medical answer. 'Is this a dangerous use…

Where in the Writs act or Constitution is an exception made for "dangerous uses"?

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

#189

Post by nickodell »

ikeboy wrote: post #188
nickodell wrote: post #187

Earlier quoted context omitted.

When establishing the EPA, Congress wrote a law saying "All dangerous chemicals will be banned. The EPA will define what 'dangerous chemicals' means." (Actually, the first iteration of the EPA just gave grants to local organizations to clean up pollution, but I'm ignoring that for the moment.) 'Is this chemical dangerous?' is a specific question with a specific scientific and medical answer. 'Is this a dangerous use…

Where in the Writs act or Constitution is an exception made for "dangerous uses"?

Nowhere. However, the Writs act does require that the writ be, "agreeable to the usages and principles of law."

Orenstien's point is spot on. There's no act of Congress that prevents the government from seeking a writ to provide execution drugs.

If we accept the government's argument that Congress must explicitly deny the request, and the argument that burden must be calculated purely based on financial cost, the only factor that would weigh against a writ for execution drugs is the discretionary factor of closeness.

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

#190

Post by msbarnett »

ikeboy wrote: post #174
jessaustin wrote: post #165

Earlier quoted context omitted.

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.

If Congress debates whether they should ban the chemical and decides not to pass anything, does the EPA still have that right? If yes, what's the difference?

> If Congress debates whether they should ban the chemical and decides not to pass anything, does the EPA still have that right? If yes, what's the difference?

It's a separation of powers thing. The legislative branch has the power to empower a portion of the executive branch (the EPA) to do things like ban chemicals.

What can't happen is the legislative branch empowering another branch to empower other branches. Congress can't pass a law that empowers the judiciary to empower the executive branch. The executive branch has to go to the legislative branch directly. The FBI can't do an end-run around congress declining to extend its powers by going to the judiciary and "finding" those same powers in the AWA.

The argument here is that the FBI's reading of the AWA would mean that the AWA does exactly that, and is therefore unconstitutional.

So, consistent with the idea that a law should always be interpreted in a way that keeps it constitutional and compatible with other laws if at all possible, the FBI's proposed interpretation of the law must be viewed as incorrect.

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