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Iphone Cellphones Crime Government The Courts United States Your Rights Online

Judge Favors Apple In iPhone Unlocking Case In New York (google.com) 114

The Washington Post reports that Apple has prevailed for the moment in its fight with the FBI over the agency's demand that Apple help them break the security of an iPhone — but not in the California case about the phone belonging to San Bernadino shooter Syed Rizwan Farook -- that more famous case, as we mentioned the other day, is of course not the only case with a phone the FBI would like to peek into. New York federal judge James Orenstein scoffs in his 50-page decision at government arguments that Apple should be compelled to produce a software solution that would give them full access to content of the phone belonging to a drug dealer's phone. [Orenstein] found that the All Writs Act does not apply in instances where Congress had the opportunity but failed to create an authority for the government to get the type of help it was seeking, such as having firms ensure they have a way to obtain data from encrypted phones.

He also found that ordering Apple to help the government by extracting data from the iPhone- which belonged to a drug dealer --would place an unreasonable burden on the company....

He also expressed concern about conferring too much authority in the government. "Nothing in the government's arguments suggests any principled limit on how far a court may go in requiring a person or company to violate the most deeply-rooted values to provide assistance to the government the court deems necessary," he said.
Whether the same logic will prevail in California is yet unclear; the New York decision is not binding on any other court.
This discussion has been archived. No new comments can be posted.

Judge Favors Apple In iPhone Unlocking Case In New York

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  • Doesn't look like Apple's making any big after-hours moves in the wake of the announcement.

    • by creimer ( 824291 )
      Why would it? Apple isn't going to go bankrupt if a judge rules one way or another.
    • by Anonymous Coward

      Because not enough consumers care (look at number of people on Facebook).

      When there is an iPhone Pro, then this "marketing position" will become measurably valuable.

  • by turkeydance ( 1266624 ) on Monday February 29, 2016 @08:52PM (#51611933)
    and 43 other countries.
  • by BrendaEM ( 871664 ) on Monday February 29, 2016 @08:53PM (#51611945) Homepage

    Everyone who stands to gain power will surly opt for totalitarian control.

  • by Anonymous Coward

    he had a supreme judge bumped off just so he could ensure the majority vote on this issue.

    • he had a supreme judge bumped off just so he could ensure the majority vote on this issue.

      . . . and I thought that Obama was was going to nominate himself for the empty seat on the Supreme Court . . . maybe now, Obama might nominate Tim Cook as on of the Chief Justices . . . ?

  • EDNY (Score:5, Informative)

    by Etherwalk ( 681268 ) on Monday February 29, 2016 @08:58PM (#51611963)

    To be clear, this was a decision from a Federal Magistrate Judge in the Eastern District of NY. (E.g. Long Island and Staten Island). It is not binding on any other court, but it is a Federal Court Decision, which gives it more weight than most equivalent state court decisions, and it is from a fairly well-respected District. (For example, they are responsible for some of the classic electronic discovery cases). They are not the Southern District of New York, which is the rock star of District Courts--but it has enough persuasive weight that most other courts will take it at least a little seriously. They just aren't required to follow it.

    • Re:EDNY (Score:5, Interesting)

      by Anonymous Coward on Monday February 29, 2016 @09:55PM (#51612225)

      From what I can see, this Brooklyn decision was argued by both Apple and the relevant Law enforcement.
      This has allowed the judge to hear both sides and probably make a more considered judgement.

      The San Bernardino case was ex-parte, so Apple was never able to make any submission before the order was made.

      If nothing else, it proves that ex-parte orders of this magnitude should not be permitted.

  • by KGIII ( 973947 ) <uninvolved@outlook.com> on Monday February 29, 2016 @08:58PM (#51611965) Journal

    Feel free to scroll through my post history. Under what authority does the judge issue these orders? Nobody has been able to cite where this authority is coming from. Lots of people have told me that I'm wrong, in lots of ways. Nobody has actually answered the damned question or shown where the authority comes from. The judge doesn't have this kind of power.

    An example, albeit not a good one, is that even though there's litter on the ground, a judge can't just order a random person to pick it up. There's nobody even charged in this case. There has been no indictment, no arraignment, nothing... There's nobody charged AND if there were, I'm still not sure that the judge has authority to issue this order.

    People are still running around calling it a warrant. It's not a warrant. It was never a warrant.

    • by Earthquake Retrofit ( 1372207 ) on Monday February 29, 2016 @09:03PM (#51612005) Journal
      Back when dinosaurs roamed the internet, there was a guy here with some authority who could make sense of things like this named New York Country Lawyer.
    • There isn't a set of rules that say where judges authority starts and ends. There is precedent that can guide their decisions, but if a judge makes an order it stands unless another judge says so. Life isn't black and white.
    • Re: (Score:2, Informative)

      by Darinbob ( 1142669 )

      You mean the authority to make decisions, or the authority to grant warrants, or what?

      Basically it boils down to two parties unable to reach an agreement, so they consult a third party to make the decision and resolve the dispute. That's a court. Just because one of those two parties happens to be the US executive branch should not make a difference. In this particular case, the government wants a very special type of search warrant, and the courts most certainly have the power to tell the executive bran

      • by KGIII ( 973947 ) <uninvolved@outlook.com> on Monday February 29, 2016 @10:06PM (#51612273) Journal

        The authority to issue this order (a writ) in this particular case. This is not a warrant. You need to understand that if you want to have this conversation.

        Compound that with there *is* no party being charged (at this time). This is *not* a warrant and there's nobody who has been charged or indicted or arraigned or anything. That last part can be easily changed but, for now, there's nobody charged - they can charge one or both of the dead people posthumously.

        • A warrant by the way is a writ. Not all writs are warrants though. No one needs to be charged to have a warrant either. The difference in this case is somewhat slight, but I'll admit to getting off track based on not understanding what question you were really asking, or whether it was just rhetoric.

          What gives the judge the authority to give "these orders". What does "these orders" refer to that's obscure enough that it's not already answered? If you're asking about the writ for Apple to unlock the iPho

        • Well, given the iPhone 5c in question is property of the San Bernardino County, I don't really think both cases are similar in any way. There is no need to charge anyone, the iPhone is government property, there shouldn't be any personal and/or private data on it. It ends up with the government asking Apple to unlock a government property.
          • Well, given the iPhone 5c in question is property of the San Bernardino County, I don't really think both cases are similar in any way. There is no need to charge anyone, the iPhone is government property, there shouldn't be any personal and/or private data on it. It ends up with the government asking Apple to unlock a government property.

            Why should a company be forced to get information off a phone in a very complicated way when the owners together with the FBI by malice or incompetence voided the option to restore it easily? Even more to the point: why should any government entity be allowed to operate phones without mobile device management software on it, that would allow them to access any of their phones no matter what passcode their employee has set?

            Especially when almost everybody with experience believes there's not a thing of inte

          • by KGIII ( 973947 )

            Asking, yes. They can ask. They are not asking, they are ordering. They can ask anything they want and Apple can comply or not. That's what a request is. This is not a request. This is an order. I've read almost all the replies - I've been in and out all day. I'm still not seeing where, in this case, the authority to issue this order comes from.

            As near as I know (and I can find no evidence contrary) the All Writs Act is only usable in a matter before the judge. This is not before the judge - there's nobody

        • Law enforcement gets court orders for investigatory probes all the time: subpoenas for records, court orders for telephonic surveillance, etc. Those aren't warrants either, and nobody has been indicted, charged, or much else for those. This is how the system works - law enforcement proves to a judge that standard methods of surveillance and information gathering don't work (exhaustion) and that judge then allows law enforcement to commence with further investigatory means that require a legal order.

        • by bitingduck ( 810730 ) on Tuesday March 01, 2016 @01:52AM (#51612981) Homepage

          The judge actually lays it out pretty well in the order.

          DOJ went to the court to have them issue a writ to order Apple to break into the phone around when the guy in NY was charged. They did this because they thought it had evidence that would be useful in getting a conviction. The guy later plead guilty, which you might think would render the writ moot, but DOJ wanted to continue investigating to see if there was data on the phone to implicate collaborators of the guy who plead guilty. The courts normally defer to the discretion of the investigators and say "yes, while it looks moot, I understand you want to do a thorough investigation and see if there's evidence of criminal behavior of other people, so I'll go ahead and approve this writ". So far so good. Judge Orenstein even explains it more or less that way.

          Until Apple say's "hey, this is putting a burden on us, and we're not a party to any of it, and we're not in the software breaking business. We don't even have tools to break our own after OS7, and while we've previously cooperated a few dozen times on earlier OS versions, this is getting to be both a lot of work and y'all are starting to ask us to make things from scratch that we think are dangerous to make even once. We think you're pushing this AWA thing too far, and here's why." (and they submit their briefs)

          The judge reads it all, has hearings, etc and then says "Yes, Apple, you're correct, the AWA doesn't give me the authority to order you to do what DOJ asks, and all these other laws and precedents back them up, too. Have a nice day. DOJ, you guys are way overreaching, and your attempts to bypass the legislative process are transparent. You lose this way, and that way, and this other way, too. None of your arguments claiming I have that authority are any good. Go away. kthxbye."

          And then the DOJ has the option to appeal to the circuit court, but they'll probably wait to see what they get in California. If they lose about the same way in both places, they might back off. If they get conflicting orders, they'll probably appeal the one they don't like and try to get an appellate court to agree with them, but Apple will be doing the same thing with the order that *they* don't like. If two circuits then come up with different resolutions to the interpretation of the AWA (or other law in the case) then the supreme court will probably take it when it gets appealed to there.

          • by KGIII ( 973947 )

            I must not be articulating this clearly...

            > DOJ went to the court to have them issue a writ

            Stop. Right there.

            I know that. Under what authority does the judge issue this order? Namely, procedural-wise. Who has been charged? A writ is, if I understand correctly, basically a fancy name for motion for discovery which means that someone must have been charged at the point of issue.

            Once we get past that, we can debate the merits. We can then argue that it is overreach. We can then argue that it is an undue bur

            • by Agripa ( 139780 )

              I know that. Under what authority does the judge issue this order? Namely, procedural-wise. Who has been charged? A writ is, if I understand correctly, basically a fancy name for motion for discovery which means that someone must have been charged at the point of issue.

              Once we get past that, we can debate the merits. We can then argue that it is overreach. We can then argue that it is an undue burden. But, more important (to me - and seemingly to this judge, if I'm understanding) is where hell do they get o

            • read my post carefully.

              the DOJ thinks the AWA gives the judge the authority. The judge explained that he thinks he doesn't have the authority to issue a writ in this case.

    • by BitterOak ( 537666 ) on Monday February 29, 2016 @09:43PM (#51612183)

      Under what authority does the judge issue these orders?

      Under the All Writs Act [wikipedia.org]. I'm not saying it necessarily applies in this case, but it is the authority judges cite. (At least the judge in California did. In NY, the Justice Department asked the judge to use it.)

      • by KGIII ( 973947 )

        Oh, I understand that. What I don't get is how does it apply in this case? Right now, nobody has been charged. There are lots of other problems but the first and most pressing is, to me, where does this authority come from in *this* case? Who has been indicted? Who has been formally charged. Until someone has been charged then the judge doesn't have the authority to demand all writs (all papers) associated in a wide-sweeping matter of discovery. At least not historically - I looked and was unable to find an

        • The vast majority of warrants are actually issued prior to charges being sent down, because charges are what you do after you've got your investigative ducks in a row, not when you're in the middle of looking for evidence. Writs follow the same pattern. This one could actually be part of an investigation where charges have been filed, because their the shooter's neighbor [reuters.com] has been charged with supporting terrorism.

          But even without that looking into potential contacts of a guy who murdered a dozen-odd people

          • The All Writs Act is quite broad, and says the Courts have the authority to issue any order you can imagine that is "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." So the Court has the authority to use the All Writs Act to aid the investigation, and get info off the phone. There really isn't any way for Apple to dispute that bit.

            Yes there is - because the AWA specifically is not applicable when there is legislation regarding the issue at hand. In this case it's the Communications Assistance for Law Enforcement Act

            • The All Writs Act is quite broad, and says the Courts have the authority to issue any order you can imagine that is "necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." So the Court has the authority to use the All Writs Act to aid the investigation, and get info off the phone. There really isn't any way for Apple to dispute that bit.

              Yes there is - because the AWA specifically is not applicable when there is legislation regarding the issue at hand. In this case it's the Communications Assistance for Law Enforcement Act

              Technically, that's not disputing whether the Courts have the authority to use the All Writs Act to at this point in the investigation of this particular crime (which is what KGIII is wondering about), it's a dispute over whether the All Writs Act gives the Courts the authority to issue this particular Writ. And they'd be disputing on the basis that it is "not agreeable to the principles of law" because they'd be alleging the law says some other act regulates getting data off cell phones.

    • by raymorris ( 2726007 ) on Monday February 29, 2016 @10:00PM (#51612251) Journal

      The authority the FBI points to is the All Writs Act, passed in 1789. It's a law which probably should be repealed, but hasn't been. It says the following:

      (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

      (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

      By the text of the law, a court may render any order which is EITHER necessary OR appropriate in aid of a case under their jurisdiction, provided it is consistent with other law. To be clear, I'm not saying that SHOULD be the law; I don't like it, but that IS the text of the law, and it has been for 227 years.

      Subsequent court decisions have held that when Congress passes a law providing more detail about a certain type of order, the more specific law controls. This is how they interpret the phrase "agreeable to the usages and principles of law". In other words, courts can issue any order they want, under the All Writs Act, unless there is some other law saying otherwise. So the legal question is, "is there some other act of Congress which overrides in this case?"

      So by law, the question comes back to you (and Apple): "by what law is the authority granted by the All Writs Acts removed?"

      Apple points out that Congress did make a law requiring telecommunications manufacturers and carriers to allow for phone taps, the Communications Assistance for Law Enforcement Act, but chose not to address decryption of past communications in that particular law. They made other laws in this general area, but none (other than the All Writs Act) that would allow for this type of order. Recently, Congress debated making a law that would require decryption. Congress didn't end up passing any law. The FBI says "because there is no law to the contrary, the All Writs Act applies". Apple says "because Congress chose not to make a law requiring decryption, that's the same as Congress making a law forbidding an order to decrypt, and the All Writs Act should not apply".

      As much as I'd prefer Apple to win, their argument that Congress NOT passing a law is the same as Congress passing the opposite law is a bit silly. The fact that Congress didn't pass a law making cardboard legal is NOT the same as Congress passing a law making cardboard illegal.

      The All Writs Act should be repealed, but it hasn't been. Courts have "interpreted" in such a way to trim it down to Constitutional scope. It FEELS like this use of it SHOULD be unconstitutional, but how so? The Constitution basically says the police have to get a warrant before they can search the phone. They did get the warrant.

      Is this a taking of Apple's property (resources) without due process? We're watching the due process, so I don't see any specific clause of the Constitution which forbids it. In my analysis, the All Writs Act, though a bad law, is law and does give the court the authority.

      • by KGIII ( 973947 )

        Right, but that requires someone to have been charged, yes? It's about procedure, more than anything else, in my head. (Due process.) As I've said, the procedure's lacking in that nobody has been charged. Thus, under what authority is this order being given?

        As I've said, nobody has been arraigned, charged formally, indicted, or anything. There is no due process here - there's no charges made. This is not a warrant but a writ. It comes from the All Writs Act. The All Writs Act applies (if it does even apply

        • by Ixokai ( 443555 ) on Monday February 29, 2016 @10:49PM (#51612413)

          Why do you think someone has to be charged first? You seem to have this very firm idea that its an absolute requirement that someone has to be charged before a court has jurisdiction over them.

          They don't.

          Search warrants happen all the time before someone is charged, they rely on a judge determining there's probable cause -- these happen BEFORE charges because they're how the initial evidence of the crime is gathered.

          This is similar, though its not a search warrant and Apple is not a party to the actual criminal investigation (which makes this all a little bit weird). The authority for this order comes from the All Writ's Act. Its practically a blanket authorization of judicial orders covering anything that's not specifically covered by another area of law.

          Its a horrible law, but was passed when the country was young and it hadn't fully developed all of its body of law yet, but whenever there's something novel that happens, the All Writ's Act gets invoked.

          Its established in other law that third party companies have a responsibility to assist the executive in exercising its authority -- wire tapping, for example -- provided several tests are passed, such as it not being an undue burden. Apple argues, among other things, that this is an undue burden (and no talking about how rich they are matters: undue burden is a legal distinction that doesn't go away just because you can afford it). But, as with a telecom company and wire taps, no one has to be charged before the judicial order is made requiring the telecom to assist the executive in the wire tapping.

          The thing is, that 'established in other law' is not only being stretched by the FBI here, but Congress specifically forbade the executive from mandating certain technological decisions that would lead to them being able to break digital encryption. So the FBI is citing the All Writ's Act to get the order, instead of relying on the CALEA, which specifically addresses what is legally required of companies in the form of assistance provided, and under what limitations such assistance operates under.

        • Right, but that requires someone to have been charged, yes? It's about procedure, more than anything else, in my head. (Due process.) As I've said, the procedure's lacking in that nobody has been charged. ... As I've said, nobody has been arraigned

          The surviving conspirator, Enrique Marquez, HAS been charged. Apparently he bought the guns used in the attack and otherwise assisted in this attack and previously planned attacks.

          • The surviving conspirator, Enrique Marquez, HAS been charged. Apparently he bought the guns used in the attack and otherwise assisted in this attack and previously planned attacks.

            So has anything else the shooter used at his work been declared evidence in the case against Enrique Marquez? I guess his stapler could have been used as a weapon...

      • As much as I'd prefer Apple to win, their argument that Congress NOT passing a law is the same as Congress passing the opposite law is a bit silly. The fact that Congress didn't pass a law making cardboard legal is NOT the same as Congress passing a law making cardboard illegal.

        Bad analogy or strawman. Congress has never had a bill brought before it to legalize cardboard that I know of, and on the very off chance it has, it was killed for being a joke, not on the merits. This means there is no information about how Congress feels about the legality of cardboard, and certainly nothing to indicate Congress feels cardboard should be illegal. Also, the default is for such things to be legal for citizens, so by not passing a law to prohibit it, it defaults to legal.

        On the other hand

      • by Wovel ( 964431 )

        Apple is also making first amendment arguments: code has been ruled to speech, speech can not be compelled by the government, corporations are protected by the first amendment.

        Further down you said we are seeing due process. You would certainly agree then that the the original ex-parte ruling unconstitutional.

        Tell me why the 9th and 10th amendments did not invalidate the all writs act when they were enacted. Put that question in front of any rational jurist and it should be self-evident. Unfortunately,

        • Apple is also making first amendment arguments: code has been ruled to speech, speech can not be compelled by the government, corporations are protected by the first amendment.

          It doesn't look like they made that argument in NY, or the order would probably have addressed it. The phone in the NY case runs iOS 7, which doesn't require them to produce new tools to get the information off of.

          The All Writs Act is an unconstitutional law. The fact that it has stood for more than 200 years since the bill of rights just proves how rare this magistrate is.

          We don't need a law to give judges power to fill in gaps in the law. As far as the federal government is concerned, the law is explicit.

          The AWA doesn't appear on its face to be unconstitutional, just the application of it that the DOJ was asking for. Orenstein's order gives a nice history, pointing out that the AWA was passed by the first congress that included many of the writers of the constitution and many of the state delega

        • > Tell me why the 9th and 10th amendments did not invalidate the all writs act when they were enacted.

          The 10th amendment says that powers NOT given to the feds are reserved to the states and the people. It doesn't remove powers that ARE Constitutionally granted to the federal government. Article 3 of the Constitution vest "the judicial power" in the courts and enumerates their jurisdiction. The All Writs Act specifically limits itself to the jurisdiction of the court - the same limit applied by article

      • The All Writs Act should be repealed, but it hasn't been. Courts have "interpreted" in such a way to trim it down to Constitutional scope. It FEELS like this use of it SHOULD be unconstitutional, but how so? The Constitution basically says the police have to get a warrant before they can search the phone. They did get the warrant.

        I don't think anyone is arguing that this use of the AWA invokes a 4th amendment violation. I think that the arguments are that:
        1. The constitution doesn't give the government

      • by phorm ( 591458 )

        When this law was made, George Washington was literally still president, the US Supreme court had not yet convened for the first time, and Vermont wasn't even a state yet.

        Courts have "interpreted" in such a way to trim it down to Constitutional scope.It FEELS like this use of it SHOULD be unconstitutional, but how so?

        In 1789, the constitution hadn't even been ratified yet (that didn't occur until May, 1790)

        Hell, during this time the US government was still fighting Native Indians with the help of the bloody

        • As you pointed out, the All Writs Act is as old as the Constitution, and written by many of the same people.

          You then seem to say that BECAUSE it's old, it should be ignored. By your logic, the Constitution, since it is also old, should be ignored.

          The All Writs Act should be repealed because it's a BAD law, not because it's an OLD law.

          The All Writs Act and Bernie Sanders are both old and deserving of contempt, but they aren't deserving of contempt BECAUSE they are old.

          • by phorm ( 591458 )

            Not that it's an OLD law, but an outdated law. They're not necessarily the same.

            Some things covered by old laws don't change much. Murder, for example, is murder, regardless of whether you use a rock, a gun, or a drone. There are some nuances around intent etc but overall it's much the same.

            In this case though, this law itself is somewhat nuanced, dated, and was created before some of the most important factors of US law and government even existed.

      • Justice Stevens' dissenting opinion [cornell.edu] on the 1977 United States, Petitioner, v. New York Telephone Company case is as insightful and applicable to smartphone backdoors today as it was in 1977 when the court ordered a telephone company to provide technical assistance with installing a pen register. In particular:

        If the All Writs Act confers authority to order persons to aid the Government in the performance of its duties, and is no longer to be confined to orders which must be entered to enable the court to carry out its functions, it provides a sweeping grant of authority entirely without precedent in our Nation's history. Of course, there is precedent for such authority in the common law the writ of assistance. The use of that writ by the judges appointed by King George III was one British practice that the Revolution was specifically intended to terminate. ... I can understand why the Court today does not seek to support its holding by reference to that writ, but I cannot understand its disregard of the statutory requirement that the writ be "agreeable to the usages and principles of law."

        (The rest of the dissent is also well worth reading.) Even without an actual repeal of the All Writs Act, the Act should never have been interpreted so broadly as to cover what the court is demanding f

    • a judge can't just order a random person to pick it up.

      But a judge can approve a request from a member of the Executive Branch if it's publicly documented and is part of an investigation. It takes multiple parties, that's the checks and balances.

    • While I am still reading, it would seem to be the 'All Writs Act', at least in the governments interpretation, gives them the authority. Also, the case is United States v. Jun Feng, No. 14-CR-387 and it explicitly states a an "Apple iPhone 5s" was seized while executing a search warrant of Jun's residence. I am still googling for the warrant issued under that particular case.

      Granted, IAMNAL so perhaps I am getting mired down in all the jargon. Jargon examples:

      "Third, orders issued under the All Writs Act mu
  • by Trepidity ( 597 ) <`delirium-slashdot' `at' `hackish.org'> on Monday February 29, 2016 @09:00PM (#51611981)

    When courts are encountering an issue that's been decided before in another court, they often at least consider the other court's rationale, even if it's not binding precedent for them. That's termed "persuasive precedent" [wikipedia.org]. It's especially useful when several decisions going the same way pile up; then a party in a subsequent case can say, "every previous court to consider this issue has decided [x]", putting the onus on the other side to explain why the case here should go differently.

    • ...I guess it's time for Apple to update its law enforcement compliance guide [apple.com]:

      I. Extracting Data from Passcode Locked iOS Devices

      [...]

      For iOS devices running iOS versions earlier than iOS 8.0, upon receipt of a valid search warrant issued upon a showing of probable cause, Apple can extract certain categories of active data from passcode locked iOS devices. Specifically, the user generated active files on an iOS device that are contained in Appleâ(TM)s native apps and for which the data is not encrypted

    • by Anonymous Coward

      This is VERY useful in one specific way. If a Federal judge in California rules differently and upholds the California lower judges order to Apple then there is almost a 100% guarantee that an appeal must be heard by the Supreme Court. It's one thing to have 2 federal districts having different judgements about 'effectively' or even 'virtually' the same question...it is entirely another when the two judgements impact the same defendant...

      The thing that has always struck me a bit odd is that the Supreme Cour

      • This is VERY useful in one specific way. If a Federal judge in California rules differently and upholds the California lower judges order to Apple then there is almost a 100% guarantee that an appeal must be heard by the Supreme Court.

        The district judge (who is a federal judge) in California can still rescind the order based on Apple's filing. If she does, then it will depend on whether DOJ decides to appeal one or both of the cases.

  • http://www.y42k.com/2016/02/29/when-apple-settles-with-the-fbi/
  • All Writs in danger (Score:5, Interesting)

    by v1 ( 525388 ) on Monday February 29, 2016 @09:31PM (#51612123) Homepage Journal

    If this goes far enough and it looks like it's going to get put up to SCOTUS, it's very likely the feds wil back down. Because then All Writs goes under the supreme microscope and may itself get ruled unconstitutional. THAT is something the FBI doesn't want to happen, because it's too useful of a law to lose. They're playing a dangerous game of chicken here. That NYC judge spelled it out, All Writs is a blank check. It's not even a matter of "inadequate protections against abuse"... it has essentially NO limits at all. The law just has to say "we need you to cooperate", and you have to do what they tell you to do, unless you can prove that it's clearly too much effort to demand. So if they can make a case that it's not too difficult for you to do, you have to do it, yours or anyone else's rights be damned. That'll make it a tough sell to keep on the books if SCOTUS gets involved.

    Go look up "writ of assistance". In theory it was a "you can't interfere with my doing my govt job", but in practice it was typically applied as a "you are required to cooperate with and assist me in performing my government job, otherwise you're interfering with me". (it was a similar blank check, and was often used as a perpetual univeral search warrant for customs) That's one of a handful of principle complaints we had a few hundred years ago while living under England. I have NO idea how All Writs got on OUR books after we so clearly despised its grandfather, and it needs to go away. So I'm all for Apple talking this to the top.

  • "The ruling is not binding in any other court"

    "Orenstein found that the All Writs Act does not apply in instances where Congress had the opportunity but failed to create an authority for the government to get the type of help it was seeking, such as having firms ensure they have a way to obtain data from encrypted phones."

    So he is saying, OK if you want it, put it in law explicitly and see how the voters react to it. Seems to be conformation of what I pointed out the other day, this "issue" is confected with the aim of getting it into the lime light and making it a current political diving point.
    • ...making it a current political dividing point.
    • "The ruling is not binding in any other court" "Orenstein found that the All Writs Act does not apply in instances where Congress had the opportunity but failed to create an authority for the government to get the type of help it was seeking, such as having firms ensure they have a way to obtain data from encrypted phones." So he is saying, OK if you want it, put it in law explicitly and see how the voters react to it.

      More like "change the law that says you can't".

      In the section of CALEA entitled “Design of features and systems configurations,” 47 U.S.C. 1002(b)(1), the statute says that it “does not authorize any law enforcement agency or officer —

      (1) to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.

  • http://www.reuters.com/article... [reuters.com] So maybe this is a better story ;)
    • FBI's boss supports FBI is not a story.

    • Your link says nothing regarding ANY judge. It says the US Attorney General, i.e. the federal government's chief prosecutor, supports the FBI, which isn't at all surprising, since aside from being at the federal level, it's no different than a local District Attorney coming out in support of their local police. The two work together and go hand in hand, one enforcing and the other prosecuting. Neither is a judge.

      In contrast to your assertion, in fact, the California judge's initial court order was made ex p

  • give them full access to content of the phone belonging to a drug dealer's phone.

    Yo dawg, I herd ur phone likes phones, so I gave ur phone a phone ...

  • The US government has sided with Samsung and is banning iPhone sales for patent violation, at least until Apple "sees reason".

    (I am kidding, btw, before someone takes this seriously and tries to ask for a reference...)
  • The FBI has said that what they're asking of Apple, is something which Apple has done 70 times before for them. So it's not really burdensome.

    • by Anonymous Coward

      Apple is explicitly denying they ever wrote a custom OS to compromise the security for government access. The FBI is saying "you gave us data from over 70 phones previously" doesn't contradict that.

      On easier iPhones, it was pretty easy to access the data and brute force the passcode , and thats what Apple did - likely exactly the same tools as the rest of the jailbreak & forensics communities

      On recent iPhones, Apple would have to pull a team of engineers off other stuff, to do a custom OS build to do t

    • The FBI has said that what they're asking of Apple, is something which Apple has done 70 times before for them. So it's not really burdensome.

      So you claim the FBI is as much a liar as you are? Fuck, even the EFF says you are a liar, and they claimed Apple build DRM into their headphones.

  • I cannot get rid of an impression that this is a PR campaign to create an illusion that our data on smartphones is not easily available to agencies anytime anywhere, as an information at one's fingertips.

    We may remember what E.Snowden said about how it really works, but an optical-cognitive illusion is a powerful thing. For example, the Müller-Lyer illusion persists even one is aware that it is an illusion: https://en.wikipedia.org/wiki/... [wikipedia.org]
  • by AndyCanfield ( 700565 ) <andycanfield AT yandex DOT com> on Tuesday March 01, 2016 @03:30AM (#51613203) Homepage

    If the FBI wins, everyone in the USA will be insecure, and everyone else in the world will buy an iOrange phone from China.

    The constitution says "We the people,,,". not "We the paranoid cops...".

    I'd rather be free than safe.

  • Apple's got unbreakable encryption and won over the FBI for the right to protect it. That's a historic moment, I am impressed. I might switch to Apple afterall.

Top Ten Things Overheard At The ANSI C Draft Committee Meetings: (8) I'm on the committee and I *still* don't know what the hell #pragma is for.

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