Apple scored a major legal victory in its ongoing battle against the FBI on Monday when a federal magistrate judge in New York rejected the U.S. government’s request as part of a drug case to force the company to help it extract data from a locked iPhone. The ruling from U.S. Magistrate Judge James Orenstein was issued as part of the criminal case against Jun Feng, who pleaded guilty in October to drug charges. It is a significant boost to Apple’s well-publicized campaign to resist the FBI’s similar efforts in the case of the San Bernardino killers.
In the case that gave rise to Monday’s ruling, the Drug Enforcement Administration had seized — but, even after consultation with the FBI, claimed it was unable to access — Feng’s iPhone 5. The DEA and FBI said they could not overcome security measures embedded in Apple’s operating system. The government thus filed a motion seeking an order requiring “Apple to assist” the investigation “under the authority of the All Writs Act” — the same 1789 law the FBI is invoking in the San Bernardino case — by “help[ing] the government bypass the passcode security.” Apple objected, noting that there were nine other cases currently pending in which the government was seeking a similar order.
Judge Orenstein applied previous legal decisions interpreting the AWA and concluded that the law does not “justif[y] imposing on Apple the obligation to assist the government’s investigation against its will.” In a formulation extremely favorable to Apple, the judge wrote that the key question raised by the government’s request is whether the AWA allows a court “to compel Apple — a private party with no alleged involvement in Feng’s criminal activity — to perform work for the government against its will.”
The court ruled that the law permits no such result — both because relevant law contains limits on what companies like Apple are required to do, and because Congress never enacted any such obligations. Moreover, the judge said of the government’s arguments for how the AWA should be applied: “The implications of the government’s position are so far-reaching — both in terms of what it would allow today and what it implies about congressional intent in 1789 — as to produce impermissibly absurd results.”
Perhaps most devastating to the FBI’s case is Orenstein’s recognition that the purpose of the FBI’s request is not simply to obtain evidence in one particular case, but rather to grant the government broad, precedential authority to force Apple and other tech companies to take affirmative technological steps to cooperate with criminal investigations generally. That the FBI is seeking to establish broad precedent is a key argument made by Apple and its supporters in the San Bernardino case. To accept that the U.S. government has this power, ruled the court, is to vest law enforcement agencies with statutory authority that Congress itself never enacted:
The Application before this court is by no means singular: the government has to date successfully invoked the AWA to secure Apple’s compelled assistance in bypassing the passcode security of Apple devices at least 70 times in the past; it has pending litigation in a dozen more cases in which Apple has not yet been forced to provide such assistance; and in its most recent use of the statute it goes so far as to contend that a court — without any legislative authority other than the AWA — can require Apple to create a brand new product that impairs the utility of the products it is in the business of selling.
It is thus clear that the government is relying on the AWA as a source of authority that is legislative in every meaningful way: something that can be cited as a basis for getting the relief it seeks in case after case without any need for adjudication of the particular circumstances of an individual case (as the arguments that the government relies on here to justify entering an AWA order against Apple would apply with equal force to any instance in which it cannot bypass the passcode security of an Apple device it has a warrant to search).
The judge also accused the government of trying to manipulate secret judicial proceedings to obtain powers for itself against Apple that public debate and Congress would never permit. It is, Orenstein wrote, “clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts (in proceedings that had always been, at the time it filed the instant Application, shielded from public scrutiny) rather than taking the chance that open legislative debate might produce a result less to its liking.” Because the government wants the courts rather than Congress to grant this power, the “government’s interpretation of the breadth of authority the AWA confers on courts of limited jurisdiction … raises serious doubts about how such a statute could withstand constitutional scrutiny under the separation-of-powers doctrine.”
Monday’s ruling boosts Apple’s case against the FBI in numerous other ways, as much of it is applicable to the San Bernardino case. To begin with, the judge emphasized that “Apple had no involvement in Feng’s crime, and it has taken no affirmative action to thwart the government’s investigation of that crime” — exactly as is true for San Bernardino. Moreover, “Apple lawfully sold to Feng, as it sells to millions of law-abiding individuals and entities (including the government itself), a product that can effectively secure its stored data for the protection of its owner,” and “Feng used that device for criminal purposes and left it locked” — as is also true for San Bernardino.
Crucially, the ruling emphasized that “Apple is not ‘thwarting’ anything — it is instead merely declining to offer assistance.” While a party may — or may not — have a moral duty to assist the government in criminal investigations, “nothing in [prior case law] suggests that the ‘duty’ … is legal rather than moral.” Particularly since Congress has explicitly authorized companies to produce telecommunications devices with security measures, there is no basis to conclude that Apple has done anything wrong by enabling its customers to lock their devices.
Finally, the ruling recognized that forcing Apple to compromise its own security systems at the behest of the U.S. government would impose a considerable cost far beyond financial expenses:
In considering the burden the requested relief would impose on Apple, it is entirely appropriate to take into account the extent to which the compromise of privacy and data security that Apple promises its customers affects not only its financial bottom line, but also its decisions about the kind of corporation it aspires to be. The fact that the government or a judge might disapprove Apple’s preference to safeguard data security and customer privacy over the stated needs of a law enforcement agency is of no moment: in the absence of any other legal constraint, that choice is Apple’s to make, and I must take into account the fact that an order compelling Apple to abandon that choice would impose a cognizable burden on the corporation that is wholly distinct from any direct or indirect financial cost of compliance.
This cost, Orenstein wrote, is particularly high since — rejecting the FBI’s claim in the public debate that its request is limited to just one phone — “the record of this case makes clear that the burdens the government seeks to impose on Apple under the authority of the AWA are not nearly so limited.” To the contrary, “it clearly intends to continue seeking assistance that is similarly burdensome — if not far more so — for the foreseeable future.”
The judge seemed to find particularly offensive the government’s claim that because Apple is a U.S. company and receives benefits from American society, it has a duty to assist the U.S. government:
Such argument reflects poorly on a government that exists in part to safeguard the freedom of its citizens — acting as individuals or through the organizations they create — to make autonomous choices about how best to balance societal and private interests in going about their lives and their businesses. The same argument could be used to condemn with equal force any citizen’s chosen form of dissent. All American citizens and companies “derive significant legal, infrastructural, and political benefits from [their] status [as such]” — but that cannot mean that they are not burdened in a legally cognizable way when forced unwillingly to comply with what they sincerely believe to be an unlawful government intrusion.
Throughout the opinion, one finds extreme skepticism about the government’s true intentions. In particular, Orenstein repeatedly noted that the government could not demonstrate, or even state, that it would be unable to access the iPhone without Apple’s help, strongly suggesting that its real objective is to vest itself with broad authority for future cases that Congress never decided it should possess.
Apple, for its part, insisted on a conference call Monday that this ruling constituted a major victory. A senior Apple executive noted that the case “is the first opportunity that any court has had to consider … the demands of the All Writs Act on Apple … to facilitate the government’s access to an iPhone,” and that Orenstein “completely sides with Apple.” The Apple executive continued: “The court found that Congress has made a legislative choice to exclude Apple from the assistance requirement”; if the government succeeded, it would be “giving the government power that Congress had considered and rejected.”
The ruling by no means guarantees Apple’s victory in the broader fight against the FBI or even in the San Bernardino case. Orenstein had previously issued rulings making clear that he sympathized with Apple’s position, rendering the ruling somewhat expected. Moreover, as a magistrate judge — the level lower than U.S. district judge — his rulings are binding on no other court. It could conceivably add fuel to the movement to have Congress enact a new statute vesting the FBI with these powers. And there are possible distinctions with the San Bernardino case the FBI could make, such as its diminished ability to access a more advanced phone, as well as the relative importance of that investigation (international terrorism v. drug charges).
On the other hand, because the device at issue in the San Bernardino case uses a more advanced operating system than the one in the New York case, the demands the FBI is making of Apple in California are much greater. The Apple executive made the point this way today: “The difference is fundamental in terms of what we’re being asked to do — to create something that does not exist, which would defeat the protective mechanisms that we’ve built into our operating systems. That’s the issue in New York, but I think it’s incredibly important because in San Bernardino, the burden that the government is trying to impose on Apple is far more onerous.”
Though not binding, Monday’s ruling is almost certainly a major boost for Apple, both because of how categorical it is in its rationale in Apple’s favor, and because it’s the first judicial decision to address these issues directly. In essence, a U.S. judge adopted virtually all of the key arguments Apple has been making against the FBI and, in doing so, ruled that the U.S. government lacks the authority it claims it has to force the company to assist it in criminal investigations by creating new software to help the government break through the company’s own security systems.
Read the ruling:
Surveillance is but the tip of the iceberg … my book will explain some of the reasons for massive surveillance … http://www.amazon.com/gp/product/B014B4YUDS?redirect=true&ref_=docs-os-doi_0
Finally, we are beginning to see some consequences of NSA/FBI overreach.
They made this bed, and now they must lie in it.
rt.com’s Ed Schultz’s interview with John McAfee:
“Unlocking cellphone is trivial, FBI should stop deceiving public & tell truth” —
http://www.rt.com/op-edge/334092-mcafee-iphone-fbi-apple/
On the other front …
Police surveillance powers expanded in new ‘snoopers’ charter’
Published time: 1 Mar, 2016 15:00
Edited time: 1 Mar, 2016 17:18
https://www.rt.com/uk/334123-snoopers-charter-surveillance-powers/
This says it all….the iphone constitution!
https://www.youtube.com/watch?v=YAxAxseQAxE
I find governmental intrusion into privacy an assault on individual freedoms, by I also find the outrage over them forcing apple to do their work for them in exposing private phone calls a bit hypocritical to be hypocritical and shows how far our freedoms have been eroded over the years by using ‘terrorism’ as a catchall to justify illegal intrusion into our lives.
Forcing someone to work? The Draft is still available to force millions to go to war and die (although it is not being used at the present time) It seems only the large corporations and their massive legal departments have the money and legal staffs to resist the Government while individuals are forced daily to share their records under penalty of law such as with income and property tax records. Not saying there is any way around it for enforcement of the law, but just pointing out we are all slaves to the powerful in government and the government is not our servant but our master.
You could compare the FBI’s activities to infect software to the CIA’s infiltration of polio vacine programmes. The CIA’s use of fake vaccines as a means of going door to door looking for enemies, brought back the Polio virus in Pakistan, re-establishing the disease. Now, through damaging confidence in software updates, the FBI may leave electronics consumers vulnerable to malware threats. (something that the US government presumably would be happy with, seeing as they are already in the business of introducing malware, if not with Apple’s help, then without it)
Personally I’d be more receptive to Apple finding a way to help the FBI, if I didn’t already know that at the same time Obama was taking the legal route, the US government was already spending years and millions of dollars doing things like splicing into undersea internet cables and hacking into Google servers. It’s just more of the same….pushing the legal track, publicly as far as judges will go, to redefine centuries old laws and common language terms….and on a parallel track….secretly doing what they want regardless of what the court says.
The judges arguments that this use of All Writs is unconstitutional and against the intent of Congress seem persuasive, but it seems quite possible that the government might well find a more easily manipulated court or, failing that, obtain some similar powers from Congress via some midnight amendment to an appropriations bill or some-such. If law enforcement is able to eventually enforce such an order against Apple, it still might not be possible to unlock the phone in question–though devising an operating system that can be flashed to the phone and would allow a brute force attack as the governments order intends might well be expensive but possible. The mere possibility of the cost and the public relations cost of such an order would strongly discourage all manufacturers and software companies–not just apple–from providing strong privacy to consumers in the future. It will be easier to make everything a little easier to crack. And why stop at phones? Why should the lock on the door to your home be so secure as to deny law enforcement the opportunity to secretly let itself in for a look if it wants to. Lock manufacturers could be persuaded they must be of assistance at some point I suppose.
And why stop there? If the FBI can compel a private company in the name of security, then perhaps to combat mass shootings and beheadings in the work place American businesses will be required to install FBI (or some other agency) cameras.
The judge did mention the IoT as an example!
Charles Krauthammer chose Apples as the loser of the week on Bret Bair… Hah! At the closing of the segment he purposefully restated what the U.S. gov. was NOT asking for: [paraphrasing here] when the gov asks for a list of accomplices in a criminal investigation you help them.
They weren’t asking for the data from the phone Charles; and you know or should have known that! Thanks for painting that situation with a petina that makes it look like the U.S. gov was not shitting all over the U.S. Const.
Fuck Fox!
This will come as shock to The Donald: “I agree 100% with the courts,” Trump said on “Fox and Friends” … last week.
Aside from Trump, Fox and Friends penetrating legal analysis, I’m more concerned with the veracity of Apples claim its phones have “unbreakable encryption” … if Apple (or anyone else) can create software that breaks it.
As I understand it, now, Apples claim of “unbreakable encryption” (i.e. that Apple, itself, can not break) applies only to newer i6 phones and that i5 phones have a ‘theoretical’ workaround as the FBI claims Apple can create?
*Obviously, if this true, neither the FBI or the Courts can not compel Apple (or anyone else) to break “unbreakable encryption”… even if they wanted to.
What is curious to me is that the iPhone has been around for a number of years, but just lately law enforcement has been unable to gain access to these devices?
Did Apple stop cooperating with them just recently, or have they only just begun to request this cooperation from Apple?
Or is it something else…
Every new iPhone model and version of iOS has improved upon its predecessor’s security. The latest models have encryption and security features (for some of the stored data) that is unbreakable even by Apple themselves.
“Unbreakable” in this case comes with one disclaimer – Apple could indeed “break” that security system if they chose to release a modified version of their operating system that removed the aforementioned security safeguards, and then “signed” that operating system so that it could be installed on any iPhone, even one that is locked.
This is at the heart of the controversy: that the government is not merely asking Apple to cooperate in accessing data on one of their devices, but are in fact trying to compel Apple to build a new operating system that is insecure and then sign that software so that it can be force installed on any iPhone.
Meanwhile, Apple is no doubt working towards a goal of encrypting all of the data on an iPhone, all of the data stored in cloud-based backups, and preventing even themselves from installing a less secure version of iOS on a locked phone.
Meanwhile, the executive branch of the government (which includes both the president and the FBI) wants to undermine two centuries of constitutional and case law and essentially ban security and encryption on consumer devices.
The executive branch also seeks to usurp Congressional prerogatives by having the courts take on a legislative function, which is one of the main points in the decision.
It might be hard to see because it’s cloaked in legal language, but this is quite a strong rebuke of the government’s arguments. Phrases like “particularly unconvincing” is the judge’s way of saying the DOJ’s argument is complete B.S.
I believe the real debate will come when Apple finally produces an iPhone that even they can not hack and then the congress will need to decide if they want to impose a calea like obligation on Apple that their technology must be capable of providing government assistance when so order through valid judicial orders. It was some time ago that the government imposed this obligation on telecom operators, without this law telecom operators could easily have implemented technologies such as end-to-end encryption which would have made it impossible for the government to use standard wiretap procedures.
This case is very bad proxy for that debate since Apple built a backdoor into the existing iPhones, even if that backdoor can only be realistically exploited by Apple it is never the less a backdoor so the calea type issue is not really relevant. A good calea analogy would be a telecom operator who installed wiretap equipment in a locked room and then claimed the government couldn’t use that room to do wiretaps because they destroyed the key after locking the room and the government can’t compel them to make a new key.
I know everyone would love to have the real debate but this case is just not it and stretching the facts to try to force the debate makes the whole thing senseless.
Which ‘law’ would that be?
*also, iirc, Apple has claimed its i6 phones (w/ properly constituted ‘password’) have unbreakable encryption “that even they can not hack”.
I was referencing CALEA … which imposes this requirement on telecom operators.. this is what wikipedia says..note especially the part about requiring …modify and design equipment …
The Communications Assistance for Law Enforcement Act (CALEA) is a United States wiretapping law passed in 1994, during the presidency of Bill Clinton (Pub. L. No. 103-414, 108 Stat. 4279, codified at 47 USC 1001-1010).
CALEA’s purpose is to enhance the ability of law enforcement agencies to conduct electronic surveillance by requiring that telecommunications carriers and manufacturers of telecommunications equipment modify and design their equipment, facilities, and services to ensure that they have built-in surveillance capabilities, allowing federal agencies to wiretap any telephone traffic; it has since been extended to cover broadband Internet and VoIP traffic. Some government agencies argue that it covers monitoring communications rather than just tapping specific lines and that not all CALEA-based access requires a warrant.
What you wrote is not the case. CALEA specifically denies the government the right to order the design or modification of telecom equipment by manufacturers. That’s what the law actually says. However, in the SB County filing, the government omits this part.
“This case is very bad proxy for that debate since Apple built a backdoor into the existing iPhones…”
That is incorrect. A backdoor is an intentional security vulnerability included in a product with the intention of granting the creator access to that product without the knowledge or consent of the end user. Apple has created no such thing.
There are some security gaps in the iPhone, but these cannot be referred to as “backdoors” since they are not intentional, and Apple has been clearly working towards eliminating those gaps with each revision of their product line.
Those gaps include the following:
1) The Operating System Itself – Apple has the power to create a new, less secure, operating system and then force it onto any of their devices. Of course this is something they never intend to do, and something they are vigorously fighting against in court.
2) Not All Data Is Secure – Not all of the data on an iPhone is completely secure, depending on the settings selected by the user. For example, if the user elects to back up their data to the cloud, then Apple has the ability to access that data and make it available to the government in case of a valid warrant. Also, any emails stored in IMAP servers is not encrypted (and it is well established that email is not secure.) But if the user instead only backs up their iPhone data to a local computer via an encrypted iTunes backup, even Apple can’t access that data.
Regardless of where one stands in the debate between law enforcement and privacy, the fact remains that there are numerous security and encryption products widely available to criminals and terrorists that are beyond the reach of any US law. Therefore, if Apple were compelled by the US government to disable the security features on their products, this would only affect law-abiding since the criminals and terrorists would have plenty of alternatives to choose from. The government is clearly aware of this, which means that terrorism is merely a red herring in their attempt to expand surveillance powers over US citizens.
You’ve correctly identified the type of intentionally designed backdoor the government wants to impose on manufacturers, but there is also unintentional backdoors, where a vulnerability is discovered and an exploit to that vulnerability is created.
One of the interesting things about the spectator debate surrounding the FBI v. Apple case is whether the iPhone contains an unintentional vulnerability (that the FBI is compelling Apple to exploit). The “vulnerability” is that it is possible for Apple to load a modified version of the OS onto the phone. This is also a basic feature; updates would not be possible otherwise. A current side argument (we geeks love to argue tangential issues) is whether or not a potential vulnerability constitutes a backdoor. Now we are getting into semantics, and who doesn’t love to argue semantics?
However, it’s not a purely semantical debate. It hinges in how we are looking at the situation. What the government is essentially ordering Apple to do is create an operating system (including the bootware) without the security safeguards. If we are only looking at the OS, I’m not so sure that the mere ability to create another OS with a backdoor or other intentional vulnerability really meets any reasonable definition of a backdoor. Once created, then yes, but not before.
On the other hand, maybe we shouldn’t look at the OS in isolation. It’s a necessary component of a system that also includes the hardware: in this case the handset itself. Apple’s safeguards (erase after 10 tries and wait between tries) are designed to protect not just the software and data, but the device as a whole. In that sense, the common practice of making a phone upgradable (something we take for granted) is the vulnerability. If we take this POV, then yes, there is an unintended backdoor.
I probably should have stated that all this involves a bit of simplification. I didn’t mention the role of Apple’s private signing key in the process, nor did I get into some of more technical aspects. I think I am still covering the main issues of this side issue, but others might disagree.
One thing Apple can do in a future iPhone is to move the safeguards from programmable bootware into the hardware, but only the safeguards. This would allow the rest of the system to remain upgradable at the cost of the safeguards not being upgradeable. That does mean that if vulnerabilities are discovered in the hard wired safeguards that they cannot be patched. (If the hard wired safeguards can be overruled by a security update, we’re back at square one.)
As I said, this is a side argument, but thinking about it might illuminate some aspects of the case.
From the Guardian article:
Wow! There are thousands of companies who have security for their customers as good as Apple, and they all have received similar orders to write software for the government, and they are all doing it? No, I think the AG is a liar, or an idiot, or both.
If those ‘thousands’ of companies have the real-deal ‘unbreakable’ encryption (that the companies can not break) … i’m going idiot.
Perhaps Congress could enact a new statute vesting the DOJ / FBI with some actual tangible integrity, and also eliminate that complete waste of resources DEA while they’re at it.
Big Brother’s motives are about controlling dissent and continuing their insane war on drugs (people), not about fighting an in-house manufactured terrorism.
I’m sure Congress will resolve these fundamental rights and powers issues with no hyperbole whatsoever.
(not)
@ Glenn
I haven’t thought to much about these lines of cases being brought by the FBI against Apple, and I’m certain not familiar with the jurisprudence surrounding the AWA.
But a couple of things struck me as odd. First, how could Congress, even if it wanted to and assuming it could get it passed legislatively and signed by the President, create a law that passes Constitutional muster that essentially forces an individual or company to engage in work creating a product or computer code or an algorithm that it doesn’t want to create? Doesn’t it create a 5th Amendment takings clause problem–and possibly an insurmountable one? I didn’t read the decision but did the government attempt to argue that it was willing to pay the “fair market value” of such a product, line of code or algorithm if it obtained a ruling in its favor? I mean what they want to do strikes me as totally unlike an eminent domain claim or a sustained physical invasion of property where compensation must be paid in the difference (or diminution of value to the property) in value of the property before the invasion vs. at present?
And why wouldn’t it run afoul of the 13th Amendment. Apple has committed no crime so how can it be forced to engage in involuntary servitude to the government absent payment of full market value for the development of the product, code or algorithm that the government wants them to produce?
And finally, I thought I’ve read in multiple places, including here, that even if Apple wanted to comply and create such a product it is technologically infeasible if not impossible to do so notwithstanding the fact that if it could and did, it would put all encryption at risk if not render it exploitable by anyone and everyone and/or render it useless as a security technology?
I guess I just can’t get my mind wrapped around how Congress could pass a law forcing Apple to do what the FBI wants it to do without running afoul of the Constitution in all sorts of ways.
Hell given the way the First Amendment has been construed, it might be Constitutionally highly problematic from that perspective as well.
“too” not “to, “certainly” not “certain” and apologies for any other typos–it’s late and I need sleep.
Wait a minute. Even if payed full market value, is it still not involuntary servitude? Since when do the Feds get to decide what products a private company produces.? This is not a (safety) regulation, or whatever, but something totally different.
To my mind, that is the main argument against the order to compel. The logic of compelling a company to invent and produce a new product (a modified OS that will serve as a forensic tool) leads us to some absurd results. A company so ordered could still disobey by delaying completion of the project in a variety of ways. The court would have to appoint a project manager from outside the company. That manager would have to directly supervise employees to make sure they are not slacking. The manager would need access to – and control of – HR to insure that the best engineers are assigned to the project. They would have authority to hire and fire. How is this not the government seizing control of a company? This goes beyond indentured servitude into at least the doorway of totalitarianism.
A secondary consideration is “just compensation”. Should that be calculated only on the cost of creating the product, or on the basis of lost sales and damage to the brand? I’d argue that if there is legal justification to compel, then compensation must be based on the later.
A company so ordered could still disobey by delaying completion of the project in a variety of ways.
I believe Snowden’s email carrier, Lavabit, did just that. And it worked for a while. After being stymied in his pursuit of legal remedies for denying the government the SSL keys for all of it’s users – as opposed to a specific user accused of a specific crime, a very different situation – Lavar Ledison ended up convicted of contempt after turning over a printout of the key which was rendered in an illegible font in extremely tiny print. When that wasn’t well received by the government, and after considerable persecution by same, he decided he’d rather go out of business than let the government rummage through the private communications of all his users.
https://en.wikipedia.org/wiki/Lavabit
Of course the fight with Apple is on a bit more of an even basis, at least in terms of starting resources, which may be the only reason we are finally hearing about this after 70+ other applications of “compelled assistance” via abuse of a law written at a time when horses and buggies were yet to become popular means of transportation.
quote”Though not binding, Monday’s ruling is almost certainly a major boost for Apple, both because of how categorical it is in its rationale in Apple’s favor, and because it’s the first judicial decision to address these issues directly.”unquote
Not binding? WTF????? Binding on who? I’m not a lawyer, or even versed in judicial meanings, but this would appear to make a laughing stock of the point of the proceedings, regardless of it’s affect on future decisions. I mean..someone please explain to me, exactly what is the point of this if a judges ruling isn’t…ahem…”binding”? If the ruling is not “binding” on the FBI…then what the fuck does it do?
hmmm, my cognitive dissonance meter is redlining.
The court’s ruling is binding on that specific case and within that court’s specific jurisdiction. But a case can be appealed to a higher court, and a higher court can overturn a lower court’s ruling. Also, a similar case might go to trial in a different court and jurisdiction, with the possibility of a different outcome.
It is likely that the FBI vs Apple case will go all the way to the Supreme Court, unless a) the government passes a new law compelling Apple to create software for law enforcement and/or banning secure encryption, or b) Bernie Sanders gets elected as president and immediately puts a stop to all this nonsense.
“…or b) Bernie Sanders gets elected as president and immediately puts a stop to all this nonsense.”unquote
While I hope option b would come to pass, I don’t see how any president could do anything on his own. He can’t create law. Although..brow beating the Director of the FBI might work.
#StandWithApple Microsoft, Google, Twitter, Yahoo, WhatsApp, and others on this issue.
Add your name to the White House petition >>> http://1.usa.gov/1R9A4cM
The judge’s ruling leaves me feeling that the actions of the FBI, in addition to being lame and ineffectual, are flirting with being genuinely corrupt. Is there anything that the FBI can’t fuck up or exploit? Will they ever get a damn thing right? They must not even give a crap that people think the Bureau is an abusive joke.
Meanwhile, not a single Wall Street executive has been indicted for the massive fraud that led to the 2008 financial crisis. The FBI is more concerned with easy wins then with actual justice.
Correction: The FBI is more concerned with the President’s agenda than with actual justice. The same applies to the Justice [sic] department.
Seems odd that the government would go to the AWA card as a hammer to pound Apple. It sort of suggests their legal counsel is really grasping for ANY tool of intimidation. It is a fairly obscure and dated Act. I mean, other than Apple, has the AWA been utilized as a prosecutorial tool for other corporations or individuals in the twenty first century?
Yes, it has both explicitly and explicitly been used in case law. It’s obscure to us, the non-lawyer public, but it’s a foundational law, as the judge notes in his decision. It’s 50 pages, including footnotes. I found it worth reading, but it’s probably not most people’s cup of tea. There is a certain amount of entertainment value if you know that phrases like “the government’s argument was particularly unconvincing” translates into “the government’s argument is complete and utter B.S.”
Thanks Marcos. I would still like to know who was on the receiving end of the AWA and to what degree was it successful (if at all).
It’s not obscure and dated, although it might seem obscure to us laymen. The judge notes that it’s a foundational law, but also notes that it is illogical that the intention of Congress was to subvert the Comstitution or recently ratified Bill of rights. The AWA has been used directly in some cases, but mostly indirectly as the foundation for frequently cited case law. The fact that it is old is irrelevant, as is the fact that laymen haven’t heard of it before.
Your first point does have a lot of merit, however. I wouldn’t call it desperation, though. It’s overweening institutional ambition that makes the AWA their weapon of choice because the act is designed to be somewhat open ended. Maybe it’s ironic that the government is exploiting that open-endless as a “Comstitutional backdoor”.
When will you see in jail the sabotagers and subverters of the usa-constitution. This california courts are the epitome of worst than all the kosher hitlerianism, kosher stalinism, kosher bolchevism regime combined mandating total access and thus subverting and putting aside the constitutional rule of law.
The ziomasonsatanists and their puppets must begin the PRECEDENT OF calling things by its name. why?
~Torture=enhancement interrogations techniques?
~encryption=know it all to store it all & use it to harm you covertly.
~the land of the free= worst than all the kosher stalinist, kosher bolchevist, kosher hitlerianism, kosher satanjewhoo combined.
– natural and organic= monsanto toxic false seed and poisonous wanna be food and toxic lethal disease producing poison of herbicides.
– Alejandro Grace Ararat.
“Is this something that’s truly necessary?” Snowden asked. “Or is it a measure of convenience?”
would those supportive of compelling Apple to harm their product by providing access to the encryption keys similarly support compelling doctors to harm a patient?
[And reporters, if you talk to DOJ or the FBI about Apple, please ask them why the FBI hasn’t sought the NSA’s help nor mentioned anything about it?]
Snowden told the crowd he would return if U.S. authorities guaranteed a fair trial. “They responded with a letter from the attorney general that promised I would not be tortured,” he said. The crowd laughed.
“So let’s say that’s still a work in progress.”
Thank you Russia for standing for what is right and keeping people who stand for what is right safe and sound because the kosher won’t do it nor the usa would do it because they would make Snowden discapacitated by making it look like an accident and render snowden INCOMUNICADO.
The land of the free? are you still singing that?
Please explain why you felt it necessary to comment on a story about Apple vs US government using the word kosher nine times as well as the phrases ziomasonsatanists and their puppets and satanjewhoo.
None of that anti-semitic bullshit has anything to do with this story. It’s just gratuitous garbage.
Actually breaking the security of Apple’s product would lower the value of that product. That would fit the definition of a taking.
TAKING, UNJUST
When the government acquires private property and fails to compensate an owner fairly. A taking can occur even without the actual physical seizure of property, such as when a government regulation has substantially devalued a property.
The FBI is asking to devalue Apple’s property even without adequate government regulation.
This is great. So glad the judge sees beyond the immediate threat:
“Perhaps most devastating to the FBI’s case is Orenstein’s recognition that the purpose of the FBI’s request is not simply to obtain evidence in one particular case, but rather to grant the government broad, precedential authority to force Apple and other tech companies to take affirmative technological steps to cooperate with criminal investigations generally.”
Or should I say, YOU LOVE APPLE, GREENBALLS AND MCLAUGHLIN, YOU CORPORATE SHILLS!
This is probably what is called career suicide-bombing. Judge Orenstein can say goodbye to any further judicial appointments of consequence.
Aha. The differences in the judgements were so striking i had wondered if magistrate judge sheri pym falsified her resume. But i surmise now that she is probably just another lazy or mindless or patronizing or gutless or ambitious career sucking self-righteous sadist who puts tyranny over common sense. unbelievable.
“You made the wrong decision, we’re going to move it higher up and put severe career pressure on the judge to make a better decision”
…and they wonder why we cant trust the government.
Thank you for a clear and accessible explanation of some very obscure legal maneuverings.
Comey/FBI exploits the notoriety and infamy of Milak and Farook to reach for a precedent. Not by happenstance, not by clumsiness, not by earnest though flawed intents but with clear strategic intent.
Backing up all the way to 911 (even before), the State has repeatedly shown a hidden agenda while selectively addressing legal issues.
For instance, at the time of Jose Padilla’s arrest, Attorney General John Ashcroft — while in Russia — announced Padilla’s intent of making a dirty bomb. Yet after years of solitary confinement, torture, and legal machinations, Padilla was transferred from military jurisdiction to civilian jurisdiction where he was convicted of conspiracy.
In short, no mention of a dirty bomb.
The DoJ is a thoroughly political institution often promoting institutional objectives (therefore secret or at least unstated objectives), sometimes in complete contradiction to express Constitutional restraints.
“Backing up all the way to 911 (even before), the State has repeatedly shown a hidden agenda while selectively addressing legal issues. ”
interesting. That along with wallstreet executives who rob America never go to jail. One might get the idea that somehow the two might be working together. Sort of a wallstreet vs mainstreet conflict. Wallstreet owns, Mainstreet does. Maybe the owner’s club has the notion that if they don’t keep the muzzle on their dog it might bite back.
It is obvious in reading this court opinion the U.S. government is more of an authoritarian national surveillance state than a democratic one with respect to the natural law treatment of our civil liberties.
The real problem is that despite all we’ve been through, there is still NO shared intelligence between the branches of Intelligence. I know because a few of these guys are my friends, and we’ve had very long talks about what is really going on. The problem is an internal dilemma at these agencies, not Apple. Apple did not create terrorism and the solution to the big issue is not what’s inside an iPhone. I respect the law, when the law respects the people. It’s an earned respect thing.
So I spent the weekend writing a piece for Medium that explains why the San Bernadino case (“FBIvsApple”) would be decided on less-than-sexy AWA precedent, separation of powers, and the limits of inherent judicial authority when it comes to conscription–and not on the much debated technology or privacy issues. Then Orenstein bursts my bubble and publishes his opinion out of the blue. After nothing since October! Orenstein realized he had an opportunity and he took it. Ah well, still good to know my instincts are sharp.
The 9th Cir. precedent cited in Apple’s brief (Plum Creek) will only add authority to Judge Pym’s eventual order to vacate. In that case, the 9th Cir. held that AWA could not be used to conscript a lumber manufacturer’s employees to wearing sound and contaminant detectors like some kind of investigative interns for OSHA. The court’s reason was that the employer might be exposed to liability for injuries. (!) A bit of a silly rationale, if ultimately the right conclusion about the limits of the court’s powers against an unwilling participant.
In this San Bernardino case, Apple really has no concern about liability to San Bernardino, to the dead terrorists, and very tenuous concern about personal liability for cracking other customer phones for police. (They would not be liable to anyone for complying with a court order.) So the Plum Creek rationale (ie, exposure to liability) fails, but the repugnant idea of conscripting unwilling people to do your work for you does apply. And unlike NYTelephone, Apple isn’t granting access to its carrier network, or anything of Apple’s. FBI wants to force Apple to be its investigator against its will.
People should not get the wrong idea about Apple’s ability to stand up to valid warrants, to inspections of its code when probable cause applies, or to court orders with claims of complexity, or expense, or even privacy. A court order is a court order. But the All Writs Act is merely to aid a court in carrying out its inherent jurisdictional powers when there is a gap in authority not otherwise specified. In its history, it is mainly used by prisoners to seek orders they can’t otherwise get. It’s not for forcing private parties to do what they don’t want to do; it’s for forcing people not to impede its other orders.
Thanks Orenstein.
You should still publish. Maybe it needs a little rewrite or an update at the bottom regarding Ornstein’s decision, but your essay still sounds like a worthwhile read.
And if I may interject some opinion, these cases in their wider context are not about privacy vs security. The real issue is more security vs. less security. The FBI/DOJ seeks to diminish our individual and collective rights to secure ourselves in exchange for their very limited ability to protect us (a duty that they are not even constitutionally obligated to fulfill, according to the Supreme Court). I might go even further and say it’s about Security vs. Security Theater. Security Theater is taking various actions intended to make the public feel safer while not effectively providing security.
No matter how often and how hard they lay the fear mongering on me I do not check my trunk, look in my back seat, or under my covers for a Muslim.
We lose 33,000 people a year due to our gun culture, but we don’t take away everyone’s guns.
We lose 30,000 people a year because they don’t have access to health care, but we don’t give everyone health care.
We lose 30,800 people every year to highway fatalities, but we don’t change the speed limit to 12 mph.
We lose about 48 people a year to lightning strikes, but we do not make it mandatory for everyone to stay indoors.
We have lost 45 people since 9/11 to mostly home base Islamic terrorism, and for that we shred our Constitutional rights like grossly violating the right of our citizens to privacy and even giving up our right to Habeas Corpus; by allowing this we therefore eviscerate the essence of our democracy.
Actually, while this is a victory for Apple, it is a particularly narrow one. This court ruled that the warrant exceeded the authority granted by the All Writs Act, but it crucially does not offer any opinion on whether such an order would be unconstitutional per se.
Yes, but no. The judge is explicit that, between two competing plausible interpretations of a statute, if one raises constitutional problems, the other must prevail. Clearly, the government’s interpretation raises such problems. The judge cites Clark v. Martinez, 543 U.S. at 371, 381 and 380-81 (2005). (Yes, I took notes!)
Thanks for this early report.
There must be some misunderstanding. If this ruling is allowed to stand, then the FBI would be forced to solve their own cases. That is obviously absurd.
The root problem seems to have been the appointment of a skeptical judge. Judges are supposed to accept the government’s claims at face value, which obviously didn’t happen here. So I believe the decision will be overturned on appeal.
Still, it’s necessary to prevent such a travesty of justice from happening again. Congress should immediately pass a law that all US citizens have a duty to obey the FBI. In the past, the FBI has successfully relied on threats and intimidation to coerce third parties into assisting their investigations. Companies like Apple, however, have such significant resources that they are able to defend their rights using lawyers. This obviously makes for an uneven playing field, and Congress needs to right the balance.
;)
That….doesn’t sound Orwellian at all.
The Great Vizzini!!
I think The Great Vizzini comments elsewhere, but I don’t want to interfere with your fanboy love for Il Duce!
“You made the wrong decision, we’re going to move it higher up and put severe career pressure on the judge to make a better decision”
…and you wonder how we can trust the government?
It’s is absolutely disgusting, they should not have a right to everything, especially a right to peoples privacy.
“It is better to live one day as a lion than 100 years as a sheep.”
Says the master illusionist hired by the USG to perform his proprietary form of propaganda through the brilliant use of satire. Unfortunately, no matter how he tries, he fails to hide the telltale fascist stench.
>”There must be some misunderstanding.”
To encrypt or not to encrypt; that is the question.
“In the past, the FBI has successfully relied on threats and intimidation to coerce third parties into assisting their investigations. ”
To threats and intimidation you might add manipulation and deception: https://www.youtube.com/watch?v=jgDsbjAYXcQ
Thanks Glenn , superb, we are indebted to you and people like you.