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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]

#61

Post by GigabyteCoin »

avs733 wrote: post #43
GigabyteCoin wrote: post #27

Isn't the All Writs Act just a red herring in this whole debate? What's preventing the Federal Government from issuing Apple a National Security Letter and forcing them to comply in secrecy? I don't understand how all of a sudden the government is publicly and calmly asking permission to do something digitally when they have been so forceful and demanding in the recent past.

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.

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

#62

Post by shkkmo »

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.

Yes, this Judge seems to agree with Cook that an act of congress is required before the FBI has the power to compel Apple's assistance in this instance.

I suspect your down votes are due to the use of the phrase 'cop out'.

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

#63

Post by HelloMcFly »

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…

They'd likely argue that forcing them to sign non-Apple software as if it was their own is compelled speech.

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

#64

Post by ikeboy »

GigabyteCoin wrote: post #60
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…

>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 data,” prosecutors wrote.

http://www.wired.com/2013/10/lavabit_unsealed/

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

#65

Post by HelloMcFly »

joezydeco wrote: post #22
SEJeff wrote: post #18

I'd actually love to see this one make it to the supreme court, where I have pretty much no doubt, they would reach the exact same conclusion.

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.

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

#66

Post by acqq »

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 .

> 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 member of the House and Senate were to vote against the enactment of such a law citing the kinds of data security and personal privacy concerns that Apple now embraces, the government would nevertheless describe the order sought here as permissible because Congress had merely rejected the bill – however emphatically, and however clear its reasons for doing so – rather than affirmatively passing legislation to prohibit the executive branch's proposal. Yet in such circumstances, it would be absurd to posit that the authority the government sought was anything other than obnoxious to the law."

And there's the related law in which Congress explicitly didn't oblige the companies: CALEA.

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

#67

Post by maxander »

rqebmm wrote: post #56
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…

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 law's creators. Its entirely plausible to imagine serious lawmakers making an AWA that was a "mechanism for upending the separation of powers". Only knowing the involvement of these same lawmakers (in part) in the law's creation is this interpretation ruled out- "orginalism" certainly, but here justifiable.

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

#68

Post by studentrob »

rqebmm wrote: post #56
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…

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…

> The context the law was originally written in is just fluff

The magistrate's job is to apply and interpret the law. Lawyers study the circumstances under which laws were created for years before they can practice, and magistrates are on the whole even more educated in law than your average lawyer. His commentary is appropriate and helpful for fully understanding his logic.

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

#69

Post by colinbartlett »

dragonwriter wrote: post #54
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 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.

Who's to say they haven't already tried actually? From what I understand, an NSL could be presented and it's validity argued but it would never be presented in an open court.

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

#70

Post by guelo »

rqebmm wrote: post #56
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…

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…

Your point is obviously part of a much bigger legal philosophy debate, but one problem with your pov is that legal code is not that precise. It's much less precise than computer code for example, and even computer code produces tons of bugs due to the programmer not being precise enough. So the legal text by itself is often ambiguous and judges have to guess what the legislators meant to write.
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