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

http://blogs.reuters.com/alison-frankel/files/2016/02/applebrooklyn-2.29.16order.pdf

by coloneltcb • 10 years ago

797 188 10 years ago

blogs.reuters.com

The conclusion is pretty clear.

    Ultimately, the question to be answered in this matter,
    and in others like it across the country, is not whether
    the government should be able to force Apple to help it
    unlock a specific device; it is instead whether the All
    Writs Act resolves that issue and many others like it yet
    to come. For the reasons set forth above, I conclude that
    it does not. The government's motion is denied.

It doesn't answer the question that was on my mind ("Can the FBI force Apple to write and cryptographically sign a less-secure version of their operating system?"), but it's nice to know that the AWA doesn't grant them that capability.

y0y• 10 years ago

I've seen a lot of doom and gloom about the current state of the US government all around the internet, but I have to say that this kind of thing helps me remain optimistic. A judge is free to make his or her decision without fear of coercion or some fanciful Tom Clancy-esque story unfolding as some people seem to believe things to work. The system may be flawed, but it's not broken yet.

r00fus• 10 years ago

I would feel a lot more confident about the US's overall state of corruption if the defendant in this case weren't the largest capitalized company in the world.

Would this case have come to the same result (which is likely to be appealed) if it was say UnluckySmallCo. instead of Apple that was on the receiving end of the government's pressure?

andrewjl• 10 years ago

The FBI needs some legal basis for forcing Apple to develop and cryptographically sign a less-secure version of their operating system. This order, assuming it's not overturned by a higher court on appeal, removes one legal avenue the FBI had.

I haven't seen any other avenues. (In fact, Apple cited laws on the books that expressly prohibit the FBI from making this type of request if it concerns a phone manufacturer.)

username2232• 10 years ago

This is one of those times I really wish we had a functioning legislative branch. They could write and pass a law describing companies' obligations and law enforcement's powers when dealing with strong encryption on smartphones. Then people who disagreed could take it to the courts, and a Supreme Court with an odd number of justices could decide whether said law was constitutional.

Unfortunately we do not live in that world, so we get to creatively interpret centuries-old laws written by people who could not have imagined encrypted smartphones. And that interpretation may end up at an evenly-divided Supreme Court.

bmelton• 10 years ago

In the event of a tie, the the lower court is the tie-breaker. Having an even number of justices doesn't break the court, and even if it did, it'd be another long while before this case could be appealed that high anyway.

Even if we're to believe the rhetoric that the Senate isn't going to appoint any candidate, nobody's even been nominated yet, so the idea that the whole system is broken may be true, but not for the reasons speculated.

AnimalMuppet3• 10 years ago

An even number of justices does not necessarily mean a deadlocked Supreme Court. Most cases are not decided 5-4 (though it may be true that the most controversial cases are more likely to be decided that way).

msbarnett6• 10 years ago

Not especially shocking. The Gov'ts proposed theory of the All Writs Act as the legal equivalent of "sudo do whatever I want" was pretty damn tenuous.

taylorwc2• 10 years ago

sudo do whatever I want

What a fantastic way of putting it. Makes the point and good for a chuckle.

gpvos• 10 years ago

Just in case someone doesn't get the reference: https://xkcd.com/149/

paulddraper• 10 years ago

+1 sudo indeed

clamprecht• 10 years ago

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

dragonwriter7• 10 years ago

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.

rtpg• 10 years ago

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 doors to the house.

The controversy here from a legal standpoint is that what's being asked of Apple is too burdensome. I don't really know the constitutional argument against burden (probably the 10th, limiting the power of federal government), but there seems to be some.

GunboatDiplomat• 10 years ago

`sudo rm -rf /privacy`

afarrell• 10 years ago

It is also worth reading Apple's motion in this case: https://www.documentcloud.org/documents/2722199-5-15-MJ-0045...

Actually I just noticed something about the title of the case: USA vs Black Lexus IS300. Is this actually a criminal forfeiture case?

msbarnett6• 10 years ago

That's a motion from a case in California. This ruling is from one in New York.

It's confusing because the Goverment has advanced this All Writs theory in 9 different currently ongoing cases to try to get it to stick.

chimeracoder• 10 years ago

It's confusing because the Goverment has advanced this All Writs theory in 9 different currently ongoing cases to try to get it to stick.

The only one I've heard about is the San Bernardino shooter's phone. What are the other eight cases?

caf• 10 years ago

It seems that applications for search warrants are also USA vs <property-to-be-searched> cases.

dmitrygr• 10 years ago

"As explained below, after reviewing the facts in the record and the parties' arguments,I conclude that none of those factors justifies imposing on Apple the obligation to assist the government's investigation against its will. I therefore deny the motion."

nickysielicki• 10 years ago

From the first page, (and the same sentiment is found throughout the whole document)

the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it.

Bingo!

I've said it on HN since the beginning of this case [1,2,3], and I'll continue to say it. This case is about making backdoor legislation palatable. Don't get caught up in the precedent set by this case, it's more or less inapplicable when Apple (etc.) can't flash the device without effectively wiping it, which is where things are headed. [4]

[1] https://news.ycombinator.com/item?id=11139515

[2] https://news.ycombinator.com/item?id=11139497

[3] https://news.ycombinator.com/item?id=11164617

[4] http://www.cnbc.com/2016/02/24/apple-is-said-to-be-working-o...

nikdaheratik• 10 years ago

Except that if the ruling had gone the other way you could say that this is a way of pursuing <nebulous government intrusion> without going through Congress.

The reality is that the people who want to be able to decrypt at will are just pursuing every option available to them.

acqq5• 10 years ago

Note that this is not the San Bernardino shooter case but just the drug case in NY.

Still, Judge Orenstein gave some extremely important arguments regarding the All Writs Act (AWA) that the government tries to use:

"The plain text of the statute thus confers on all federal courts the authority to issue orders where three requirements are satisfied: 1. issuance of the writ must be "in aid of" the issuing court's jurisdiction; 2. the type of writ requested must be "necessary or appropriate" to provide such aid to the issuing court's jurisdiction; and 3. the issuance of the writ must be "agreeable to the usages and principles of law.""

"As set forth below, I conclude that in the circumstances of this case, the government's application does not fully satisfy the statute's threshold requirements: although the government easily satisfies the statute's first two elements, the extraordinary relief it seeks cannot be considered "agreeable to the usages and principles of law." In arguing to the contrary, the government posits a reading of the latter phrase so expansive – and in particular, in such tension with the doctrine of separation of powers – as to cast doubt on the AWA's constitutionality if adopted."

In short, he recognized that "All Writs Act" can't mean "we can order anything we want to" to allow (in this case) DEA not following the laws that already exist (which specifically don't prescribe what DEA demands from Apple).

acqq5• 10 years ago

Also revealing, Apple documented to this judge other AWA-based requests made in the last months:

"Apple identified nine requests filed in federal courts across the country from October 8, 2015 (the date of the instant Application) through February 9, 2016. Id. at 2. In each, Apple has been ordered under the authority of the AWA (or has been told that an order has been requested or entered) to help the government bypass the passcode security of a total of twelve devices;

in each such case in which Apple has actually received a court order, Apple has objected"

Esau• 10 years ago

And this is the way it should be. Otherwise, we are all deputized slaves to the government.

acqq5• 10 years ago

Judge actually wrote that accepting the use of AWA that way

"is a reading that thoroughly undermines" "the more general protection against tyranny that the Founders believed required the careful separation of governmental powers.""

matsur• 10 years ago

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 executive branch any investigative authority Congress has decided to withhold, so long as it has not affirmatively outlawed it – would transform the AWA from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress's superior ability to prohibit or preempt. I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction."

acqq5• 10 years ago

And

"It is wholly implausible to suppose that with so many of the newly-adopted Constitution's drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that document's very first substantive mandate: "All legislative Powers herein granted shall be vested in a Congress of the United States[.]" U.S. Const. Art. I, § 1. And yet that is precisely the reading the government proposes when it insists that a court may empower the executive to exercise power that the legislature has considered yet declined to allow.

It is a reading that thoroughly undermines both the legislature's own prerogative to reject a legislative proposal effectively and efficiently (without the need to affirmatively ban the proposed authority) and the more general protection against tyranny that the Founders believed required the careful separation of governmental powers."

As the power that the legislature "considered yet declined to allow" the judge refers to the existing law, CALEA (Communications Assistance for Law Enforcement Act):

"it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also" "even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe."

Another side, according to Reuters:

http://www.reuters.com/article/us-apple-encryption-deny-idUS...

"The Justice Department is "disappointed" in Orenstein's ruling and plans to ask a higher judge within the same federal district to review the matter in coming days, a department representative said."

rpgmaker2• 10 years ago

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

shkkmo• 10 years ago

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'.

hueving• 10 years ago

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?

rqebmm• 10 years ago

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 conscience (which is checked by appeals). The context the law was originally written in is just fluff.

maxander• 10 years ago

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.

studentrob3• 10 years ago

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.

guelo2• 10 years ago

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.

dragonwriter7• 10 years ago

What's important is the letter of the law, the relevant preceding decisions, and the judge's reason and conscience (which is checked by appeals). The context the law was originally written in is just fluff.

The "relevant preceding decisions" include decisions specifying what canons of construction are used to interpret the meaning of law, and those decisions do hold out that legislative intent is a factor to consider when resolving the correct interpretation of words that can reasonably interpreted in different ways before considering that intent.

mmanfrin• 10 years ago

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

You have never actually studied law, have you?

swyman3• 10 years ago

Well that's just like, your opinion, man.

jibalt7• 10 years ago

"What's important is the letter of the law, the relevant preceding decisions, and the judge's reason and conscience (which is checked by appeals). The context the law was originally written in is just fluff."

Fascinating how you contradict yourself. The judge's reason and conscience demand that he interpret the law as it was intended by those who wrote it. The notion that "the letter of the law" should prevail is completely lacking in a reasoned understanding of what language is and how it works, and the notion that judges should make decisions based on their personal prejudices is completely lacking in conscience.

Amezarak3• 10 years ago

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 the government. [1] I don't think that's absurd at all. They weren't saints and they didn't have precedent to stop them from doing things like that.

https://en.wikipedia.org/wiki/Alien_and_Sedition_Acts

poof131• 10 years ago

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.

BurningFrog• 10 years ago

It's not hard to imagine that the founders intended certain principles to be respected, but later broke those principles when it benefitted them.

That's aside from that congress in 1798 probably didn't have a majority of founders etc.

zelcon52• 10 years ago

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"?

kevinskii• 10 years ago

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

dragonwriter7• 10 years ago

It's a fairly basic principle that, while a law can be written in such a way that changing context is relevant to its application, it's meaning doesn't change unless a legislative act changes the law itself. So, no, when it comes to laws passed in 1789, we can't stop looking to what it meant in 1789.

jibalt7• 10 years ago

Being the only one who sees something is an almost certain indication of being in error. In this case, your errors are remarkably numerous for such a short comment.

richmarr• 10 years ago

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.

mmmmmjjjjjj2• 10 years ago

mmmmmmmmmmmmmmmmmmmmmmmm

SEJeff2• 10 years ago

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.

joezydeco• 10 years ago

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.

Rylinks• 10 years ago

A tie in SCOTUS does not create binding precedent. Other circuit courts would be free to disagree, and a later SCOTUS could rule against the government.

DrScump• 10 years ago

... for that Circuit only.

dragonwriter7• 10 years ago

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.

No, a Supreme Court deadlock has essentially the same effect as if the case had not been appealed to the Supreme Court; the Court of Appeals decision stands, but no binding precedent (other than the local precedent already created by the Court of Appeals decision) is created. So, its not "forever", even in the limited sense that a Supreme Court decision is "forever".

HelloMcFly2• 10 years ago

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.

swyman3• 10 years ago

Wouldn't that be this decision? And thus unfavorable to the government?

kirykl• 10 years ago

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

msbarnett6• 10 years ago

In the extreme, the Government's proposed interpretation could be used to require safe manufacturers to build tools for the government to break into safes with, paper shredder manufacturers to build devices to stick shredding back together, drug companies to manufacture lethal injection drugs they did not wish to, or anybody to do anything that a DA thinks will help advance a case, provided that the legislature has not specifically passed a law prohibiting them from doing so.

This ruling notes any number of absurdities that this would entail. For instance, if congress passed a law requiring companies to provide aid X, and then unanimously repealed that law, the Government could go right on requiring aid X unless congress explicitly passed a law forbidding aid X.

lern_too_spel2• 10 years ago

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 backdoor for the San Bernardino and Brooklyn cases.

wildmusings• 10 years ago

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

GigabyteCoin5• 10 years ago

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.

CPLX• 10 years ago

That might be (arguably) relevant in San Bernadino, but would be a serious stretch in a methamphetamine distribution case.

GigabyteCoin5• 10 years ago

serious stretch

How can anyone be sure of that when the issuance and nature of every single NSL remains secret to this day?

kabdib• 10 years ago

That's an incredibly interesting question. Why doesn't the USGov just spam Apple with NSLs?

I'm guessing that the USG has done this, and they want to move the "debate" into a more public arena so they can get political muscle into a crypto ban. Yadda yadda terrorism leading to fake compromises and "balance". In an election year.

Cynical me expects false flag operations to prop this up further. I hope I'm just being jaded and negative.

hospes• 10 years ago

Perhaps the reason is that they cannot issue NS letters every time they need an access to someone's iPhone, so they are trying to make Apple create for them a tool that they can re-use in all other cases.

Edited typo.

guelo2• 10 years ago

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.

thesimon• 10 years ago

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 seems like using an NSL makes no sense.

jsmthrowaway• 10 years ago

A NSL is a subpoena, meaning an order to produce information.

Well, yes and no. They do not come from a court (I've heard), so they are not a subpoena in the court sense, nor a court order. But they are an order to produce information, so I assume calling one a "subpoena" is correct, and I'm not arguing with you there. Just want to make clear for those reading without a law background that NSLs do not involve a court, which "subpoena" might imply.

An NSL (I've heard, hypothetical, yadda yadda) basically amounts to the FBI citing statute authority to demand information about a suspect and does not rest on, nor require, a court case. Indeed, the whole point the government makes about the nondisclosure aspect of an NSL is to keep a matter discreet from the investigated party for reasons of national security or imminent death (which a court case, on which to issue court-ordered subpoenas, would make far more difficult).

U.S. law specifically discusses upgrading an NSL to a court order in district court, for reasons of noncompliance.

phkahler• 10 years ago

> Apple does not have the information being sought

But the guy who owned the phone can unlock it. Why not have a judge force him to unlock it? Why Apple?

an_account• 10 years ago

Could the government subpoena Apple's signing keys and use that to build, sign and install their own iOS modification?

avs7332• 10 years ago

I would suspect that they are worried Apple would challenge and potentially win against the NSL...

GigabyteCoin5• 10 years ago

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.

hsod• 10 years ago

Maybe NSLs aren't as powerful or as easy to produce as we think

sumedh• 10 years ago

or maybe Apple is powerful

dragonwriter7• 10 years ago

Isn't the All Writs Act just a red herring in this whole debate?

No, since it is the actual legal authority that the government is actually seeking to use.

What's preventing the Federal Government from issuing Apple a National Security Letter and forcing them to comply in secrecy?

There are legal bounds on NSLs, and NSLs are judicially reviewable and may be altered or voided by the courts if they are "unreasonable, oppressive, or otherwise unlawful".

Further, the nondisclosure orders that can be tied to NSLs (the "comply in secrecy" part) are limited (by Congressional action after the earlier broad use was struck down as unconstitutional) and are themselves judicially reviewable, so NSLs aren't a "get out of judicial review free" card, nor are they a "get secrecy without review free" card.

alblue4• 10 years ago

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 "in other cases in the country" and had an explicit callback to the founding fathers and the constitution, suggesting that if the All Writs Act allowed the government to compel any American company to do anything it wanted that wasn't explicitly illegal, and therefore any American citizen, could be compelled to do almost anything.

Reuters are now reporting this directly, rather than just a link to the court order:

http://www.reuters.com/article/us-apple-encryption-deny-idUS...

cpayne• 10 years ago

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 but the one we have is pretty dam awesome!

alblue4• 10 years ago

Thanks for the kind words :-) I'm happy to answer things as I understand them, but I am not a lawyer.

swyman3• 10 years ago

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

alblue4• 10 years ago

Thanks for the suggestion. Will do.

alblue4• 10 years ago

I've written a follow up piece covering the hearings held today before the house judicial committee which may be of interest to those reading this thread

http://www.infoq.com/news/2016/03/apple-fbi-congress

gregshap2• 10 years ago

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

jlgaddis• 10 years ago

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

gregshap2• 10 years ago

risky!

studentrob3• 10 years ago

It seems likely to me that this case would be referenced in the upcoming San Bernardino decision, but I am not a lawyer.

Does anyone know? Does this prop up the chances of that judge ruling in favor of Apple?

Could the DOJ try to bring the Brooklyn case in front of the supreme court? What are the next steps we're likely to see?

uxp• 10 years ago

Generally, current litigation doesn't reference other current litigation (mostly because current litigation has not established enough of a "fact" to be referenced), but you can read this statement and see that Orenstein allowed Apple to submit a brief while this case seemed to be going stale in-between the guilty plea of the defendant and his sentencing, precisely because it was being held up in 9 other cases of the "government" (whether that be the FBI in the San Bernardino case, or the DEA in this case, to the plain Chicago PD in another) leveraging the AWA to compel Apple to open this and other phones by some means.

I'm also not a lawyer, but I can see how this helps Apple in fighting the AWA used to compel them to unlock or decrypt phones seized as evidence in part of some crime where Apple was not alleged as a perpetrator or coconspirator of the crime.

rdl• 10 years ago

What happens next -- US DOJ appeals?

ChuckMcM• 10 years ago

Very nice, and one for the "good guys". Lets hope we can continue in this vein.

jim-greer• 10 years ago

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."

belovedeagle• 10 years ago

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.

aagha2• 10 years ago

It's times like this that my waning faith in our system is somewhat restored

studentrob3• 10 years ago

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...

brandeis• 10 years ago

I think the technicality in the current case will hinge on the definition of "necessary" and "appropriate" if this Judge's opinion of that drug case is correct. Both from the AWA and then CALEA Id. § 1002(b)(2). "...and the carrier possesses the information necessary to decrypt the communication." To my understanding the way in which the government wants Apple to hinder the security on the iphone is not by breaking the decryption, but by eliminating the limit on entering the code, so that they can then brute force it. This in my opinion falls outside of the strictest sense interpretation of the second statute's definition of necessary. Therefore it also falls outside of the "appropriate" in the AWA. I feel that an issue this large falling under a distinction so small is a bit scary.

aagha2• 10 years ago

It's times like this that my waning confidence in our system is reinforced.

leemalone19674• 10 years ago

Nobody can force Apple to do what FBI want to. Period.

leemalone19674• 10 years ago

They can not force Apple to do anything. Period.

jibalt7• 10 years ago

Yes, actually, they can. In any case, Apple has said that they will follow what the courts decide, however reluctantly.

leemalone19674• 10 years ago

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

leemalone19674• 10 years ago

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.

beams_of_light• 10 years ago

What if the government and Apple (and/or other tech companies) have colluded on this issue, and ARE providing the FBI with the information they need, but publicly fighting what appears to be a winning battle, all so that criminals and terrorists will believe their iPhones are secure while plotting evil?

jibalt7• 10 years ago

Sorry, but nothing of any interest would follow from that harebrained speculation being true.

Chefkoochooloo• 10 years ago

While Apple should assist with the unlocking of iPhones to assist in prosecution of suspected criminals, the idea that the Feds want Apple to make a backdoor program to every single iPhone is terrifying, even if they are required to gain a warrant before using the program. The entire notion of one government agency holding so much data and power is absurd and coercing a company to make the program shouldn't be allowed.

sandworm101• 10 years ago

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.

mmmmmjjjjjj2• 10 years ago

mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm

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

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