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.

Comments

Good to hear.

[jellomizer]

The problem with this whole debate, is assuming making a system that is secure is beyond the means of mortal men. And will need a big organization to make such a system.

The truth is. If Apple are shown to be insecure, the bad guys will not use apple, they may make their own OS, which doesn't have the back doors. It may not be a fancy but secure for what is needed.

So Apple is loosing business, and the bad guys are still going under the radar.

Re:Good to hear.

[Anonymous Coward]

For all the disappointments the Obama administration has brought, the most disappointing has been its lawlessness.

Let's address this claim one point at a time.

Re-writing laws through the EPA,

The *laws* in question specifically delegate the creation of the regulations *to* the EPA. They are acting *fully* within the bounds of those laws when they create their regulations.

refusing to enforce others,

The Executive has *always* had discretion on how to allocate its resources for enforcement of the law. This is true at the federal, state, and local level, and always has been.

using EOs as a fig leaf for outright lawbreaking,

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. Additionally, he's used *fewer* EOs (per term) than any of his predecessors back as far as Grover Cleveland.

re-writing Obamacare on the fly as if there were no separation of powers at all...

There was no 're-writing' of Obama care. This is just a duplicate of the prior two, and equally empty. He has, as he is legally empowered to do, declined to enforce certain aspects of the law (pertaining to the timeline by which small businesses must comply with those certain aspects of the law), thereby preventing fines and penalties being levied on innocent actors simply because they were unable to adjust their business practices and software (at the mercy of third parties) to comply with a new law in the initial timeline. This is (again) a *COMMON* occurrence at the Federal, State, and local levels, because sane people don't want good actors penalized for things beyond their control, or for failing while acting in good faith.

Ninth Amendment

[Tokolosh]

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."

Re:Barack "Executive Order" Obama...

[Zak3056]

I'm not jumping into the middle of this fight (I'm not educated enough on the subject) but I will say that there is nothing inherently wrong with an executive order. Many laws that congress writes delegate various powers to the executive--this is why we have a Code of Federal Regulations to go along with US code (USC enables the executive branch to do something, and the CFR is the details of that something... at least in theory). An executive order is a reasonable way for the President (the head of the executive branch) to direct HOW the executive branch does something. The problem arises when executive orders purport to enable or forbid something the executive branch has no power to enable or forbid.

Simply counting how many executive orders a president issues is meaningless in a vacuum. One has to actually ANALYZE those orders to determine if "screw the laws and precedents" is accurate with regard to a particular president.

Re:She is so smart

[Anubis IV]

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.