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The Law Is Clear: the FBI Cannot Make Apple Rewrite Its OS (backchannel.com)
An anonymous reader cites a post by Susan Crawford, Harvard Law Professor and former Obama Special Assistant: From her column at Backchannel, "Barack Obama has a fine legal mind. But he may not have been using it when he talked about encryption last week. [...] The problem for the president is that when it comes to the specific battle going on right now between Apple and the FBI, the law is clear: twenty years ago, Congress passed a statute, the Communications Assistance for Law Enforcement Act (CALEA) that does not allow the government to tell manufacturers how to design or configure a phone or software used by that phone -- including security software used by that phone.
While I am concerned about this possibility as well, there is some evidence it may not happen. The FBI director certainly didn't get the warm, supportive welcome he expected when he went in front of Congress after this mess started. In fact, CALEA got thrown right in his face.
#DeleteChrome
...can do what ever the hell he pleases. It isn't the first time he basically said screw the laws and precedents and tried to ram rod his way down everyone's throats.
So is it Obama or EO's that you have a problem with? Because in recent history the high scores currently are:
Ronnie 381
Bill 364
George W 291
Barack 224 (with 1 year to go)
George H 166
I am Slashdot. Are you Slashdot as well?
Well, Susan Crawford is a Harvard Law Professor, and former Obama Special Assistant, so she both knows the law, and Obama. I would count that as evidence in favour of the proposition. All this is right up there in the summary, by the way.
Meanwhile you're some random dude on Slashdot with a clear and very specific ax to grind against Obama. So really you're only questioning this because you wanted to make a completely unrelated point. In fact Obama can both have a fine legal mind and be the "activist" you claim. So this is not evidence against the proposition.
On balance, then, the proposition stands, and your rant is irrelevant.
The default status is that the people have the right to do, or not to do, anything. The government has no rights, except as stated in the Constitution.
Therefore, passing a law preventing the government from doing something is oxymoronic. The government cannot force Apple to do anything - no legislation required. Any attempt to compel Apple must pass constitutional muster.
I get annoyed when the media reports something like "a law to legalize marijuana", or "a law to legalize abortion", or " a law to legalize gun ownership." The correct framing is "a law prohibiting...has been repealed/found unconstitutional."
Prove anything by multiplying Huge Number times Tiny Number
You haven't been reading the news. The FBI says that it wants certain security measures removed from one particular phone. It wants Apple to write a modified version of iOS to be used only by the FBI in a secured environment to flash the iOS of this one phone, so the FBI can brute force the password (and use software to assist) without risking the encryption key being destroyed (there is a possibility that a feature on the phone is turned on that would disable unlocking of the phone altogether after 10 wrong guesses (though there are methods around this as well, but still it would be slow)).
That is what the DOJ said anyway. But then other district attorneys said that they are in the same situation with something like 112 other iPhones. They said this to support the DOJ's need for the modified software, but obviously it damaged the government's argument that this is a one time thing.
This is very different from Apple's earlier assistance to the government because this is the first time the DOJ has demanded that Apple actually create a modified, inherently less secure version of iOS. Apple would have to actually pay engineers to write code to create a version of iOS that must, must, must not ever be released to the public. It would have to be used only in a contained environment on Apple's campus not connected to the outside world--which Apple would have to build just for this purpose. Otherwise it would have to rely on the government to not accidentally release the modified iOS to bad actors.
The government is trying to use something called the "All Writs Act" to say that it can basically force anyone to do anything.
You packed a lot of wrong into such a small post.
Unfortunately Apple isn't a 'communications carrier'.
The CALEA subchapter in question that prohibits the feds from mandating a particular design explicitly mentions manufacturers (quoting the relevant bit: "This subchapter does not authorize any law enforcement agency [...] to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by [...] any manufacturer of telecommunications equipment [...]"), which would refer to Apple in this case, since cell phones are considered telecommunications devices. Neither the summary nor the article mention anything about CALEA being limited to just carriers, nor is that the case, since it applies to manufacturers, support service providers, and communications service providers, among others, so I have no clue where you got the incorrect notion that it only applied to carriers.
If this was a viable out then Apple would have used it. It isn't.
You are talking out of your ass, since this is exactly the line of argumentation Apple has been using in its briefs for the last several weeks. Here's Apple's latest brief, where they explicitly mention CALEA and its relevance to applying the All Writs Act. Where do you think this law professor got the idea? It's been the core of Apple's argument ever since their initial appeal of the order in February, since it undermines the very foundation on which the FBI is basing its demand. There have been multiple discussions here at Slashdot over this exact topic in the last few weeks alone. Apple has been arguing that the All Writs Act, which the FBI is using in order to conscript Apple's assistance, is inapplicable in situations where Congress has passed laws that provide more specificity. 200 years of legal precedent agree with that understanding. And, contrary to your assertions, CALEA clearly provides a higher degree of specificity that's directly applicable in this case, since it explicitly states that law enforcement cannot make these sorts of demands of manufacturers.
How your comment got +5 Insightful when it is such utter and complete rubbish is beyond me.
Executive Orders are legal. That is a long-established fact. They cannot change the law, nor have any of his EOs purported to do so
Ordering USCIS to provide Employment Authorization Documents to illegal immigrants who are not eligible by Congress enacted law is not a de-facto change of the law?
Deferring deportation would be fine, that's within the executive scope. Handing out documents to people without valid presence is not.
I'm sure this won't get much visibility, but for what it's worth...
Apple has smart lawyers, which made it odd for me to read when they were basing their primary objection on first amendment grounds, rather than the more obvious undue burden defense (and/or reference to this law, and the lack of statute which would compel them to rewrite the OS). But more recently, the government made their real strategy more clear (ie: rewrite it, or give us the code), which made Apple's strategy make more sense. Although the government cannot necessarily compel Apple to rewrite the OS code, they have much better legal footing to compel Apple to give them the OS code, and presumably could write GovOS themselves fairly trivially.
That's where the freedom of speech argument comes in: although the government can, in effect, steal Apple's code (legally), it's much more clearly established that they cannot compel Apple to "say" that it's coming from Apple (in technical terms, sign the code). Without the code signature, GovOS cannot be pushed onto, or run on, iOS devices. In essence, Apple was countering the more legally persuasive argument that the DOJ was holding back as their would-be trump card, if Apple fought the initial ruling. Well played, indeed.
For the sake of everyone in the US (and not to mention all the principles the country is founded on), I sincerely hope Apple prevails. Their forethought in legal argument gives me some hope that all is not lost, privacy-wise.