Slashdot Mirror
Judge Favors Apple In iPhone Unlocking Case In New York (google.com)
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.
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.
and 43 other countries.
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.
Fifty years of Yippie! 1968-2018
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.
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.
"So long and thanks for all the fish."
Everyone knows the Feds already have it. Apple knows they have it. The Feds want presidence so every other company will willingly step in line.