4 ms·

No tinfoil intended here, but it strikes me as very unfortunate that the Supreme Court Justice most likely to be opposed to this recently passed away last weeke

No tinfoil intended here, but it strikes me as very unfortunate that the Supreme Court Justice most likely to be opposed to this recently passed away last weekend. In my not-a-lawyer opinion, I think that Apple will absolutely take this as far as it can. With only an 8-member court, Anthony Kennedy becomes even more important than ever. We should be lobbying SCOTUS harder now than ever before. We need them to rule against this far more than we need to be calling congress people. We need the Supreme Court to act with the effect of precedent. But I'm not optimistic. We would need Roberts and Thomas to back off their national security platforms, and we need RBG and Kagan to understand the problem better. Kennedy is a wildcard, but if we can explain the issue in plain English to those key people and get them to agree, this is doable. Alito and Sotomayor will fall in line. If we do our jobs as members of the body politic, write amicus briefs, and hound the members of the court, this is doable. Thomas and Roberts can be swayed. So can RBG and Kagan. It would be an easier 5-4 decision with Scalia still around, but this is possible without him, and we need to focus our efforts. I'll be putting my money where my mouth is over the weekend and creating a website that submits comments to the individual justices. I'll also be asking for help/edits on the boilerplate I'm offering as a starting point.

lifeisstillgood 11y ago
I don't think you can lobby SCOTUS. Theoretically you could present an amicus brief but I think the bar is very high It's probably a good thing we can't lobby them
- ianamartin 11y ago
  You absolutely can write letters to the members individually. Perhaps lobby was a bad word for it. Perhaps my idea is broken on the face of it. But an amicus brief put together by the HN community doesn't seem completely unreasonable. My point here is that there are things we are capable of doing that might affect the outcome of such a court case. For those of us who care--in either direction--it seems reasonable to try. What I'm going to try to research and build this weekend is the most effective way of contacting the court and sharing your opinions. It could very well fail to be effective, but that's not going to stop me from trying.
  - lifeisstillgood 11y ago
    I would be very interested in hearing your research - good luck
    - ianamartin 11y ago
      I will share what I come up with over the next couple of days. Hell even if it doesn't turn out well, it will be an interesting thing to put up on github to help me get a job.
  - tamana 11y ago
    You can invite them to a weekend party at your branch, and bend their ear.
rtpg 11y ago
What is the ruling that prevents this exactly? There needs to be some basis, and considering the circumstances (individual warrant, not even property of the terrorist) I have a hard time seeing the constitutional argument here that is related to any right to privacy. Based off of the ruling handed down by the judge, it sounds like you could only rule that the work demanded of Apple is too onerous... I feel like that won't accomplish much though. I feel like this situation is pretty orthogonal to a ruling against any "Mandatory Backdoor" laws (which is the holy grail for us at this point)
- acqq 11y ago
  The question is, is this act (the whole text follows): https://en.wikipedia.org/wiki/All_Writs_Act https://en.wikipedia.org/wiki/All_Writs_Act "(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." a reasonable legal ground in this case to demand from a company to develop anything, in this case a special version of the operating system? Does this act mean "we can order anything to anybody"? Especially when there is "the Communications Assistance for Law Enforcement Act of 1992." If anything goes, as "All Writs" is tried to be used by the FBI now, we don't need any other laws. "All Writs" rules.
nkurz 11y ago
Did you see Robert Cringely's article where he comes to a very similar conclusion? Ironically, although he sees the same gambit, the two of you seem to be interpreting the situation completely opposite. If I'm reading you both right, you believe Scalia was the most likely to side with Apple, whereas he thinks Scalia was a sure vote for the FBI? What’s going on is Justice Antonin Scalia is dead. Had Justice Scalia not died unexpectedly a few days ago (notably before the Apple/FBI dustup) and had the FBI pursued the case with it landing finally in the Supreme Court, well the FBI would have probably won the case 5-4. Maybe not, but probably. With Justice Scalia dead and any possible replacement locked in a Republican-induced coma, the now eight-member Supreme Court has nominally four liberal and four conservative justices but at least 1.5 of those conservatives (Justice Kennedy and sometimes Chief Justice Roberts) have been known to turn moderate on certain decisions. This smaller court, which will apparently judge all cases for the next couple years, is likely to be more moderate than the Scalia Court ever was. So if you are a President who is a lawyer and former teacher of constitutional law and you’ve come over time to see that this idea of secret backdoors into encrypted devices is not really a good idea, but one that’s going to come up again and again pushed by nearly everyone from the other political party (and even a few from your own) wouldn’t right now be the best of all possible times to kinda-sorta fight this fight all the way to the Supreme Court and lose? If it doesn’t go all the way to the Supremes, there’s no chance to set a strong legal precedent and this issue will come back again and again and again. That’s what I am pretty sure is happening. http://www.cringely.com/2016/02/19/the-fbi-v-apple-isnt-at-all-the-way-you-think-it-is/ http://www.cringely.com/2016/02/19/the-fbi-v-apple-isnt-at-a...
- ianamartin 11y ago
  I did see that, and I think that Cringley is--like many other people who haven't paid attention--seriously misinterpreting Scalia's history on the court. My own, admittedly amateur, interpretation is that he's largely internally consistent with his ideas of protecting person freedoms and advocating in favor of judicial restraint. I see citizens united as an exanpsion of Scalia's attitude about protecting personal freedoms (and this is an expansion I disagree with, btw). His logic in Bergofell was that the court doesn't have the authority to meddle further in religious matters than it already has and needs to exercise restraint. In my opinion, the argument is stronger in Bergofell than it is in Citizens United, even though I agree with the result of the former and disagree with the latter. I could be incredibly wrong, but I think that over 30 years, Scalia has been a champion of individual rights and protections more often than not. Much to various people's chagrin at different times. That has sometimes led to good results and sometimes led to bad. I feel comfortable in this case making the assertion that Scalia would have definitively come down on the side of Apple, and done so in the heavy-handed manner that he was known for and probably persuaded a fence justice like Kennedy to side with him in this case. But possibly also bringing RBG in with him at the same time. Yes, it's all prognostication at this point, and I know that. But in my opinion, the bigger picture of Scalia outside of Citizens United and Obergefell are the history of someone who would have opposed the order against Apple. Cringley is just being Cringely: bigoted, hateful, and wrong. As usual. But then again, I could be really wrong. It does happen sometimes.
nickysielicki 11y ago
Maybe we want Apple to lose this case. If Apple wins, DOJ gets to turn around and push legislation mandating backdoors on the basis that terrorists are winning in their courts. The public will eat it up, because who the hell wants to side with some guy that murdered 20+ people in San Bernardino? Conversely, if Apple loses, there are no real lasting effects. Encrypted phones are the new norm, and the 5C is weaker than its successors. If Apple actually can't undermine the encryption (ie: like the newer iPhones), the courts can't force them to do anything. The precedent of being able to force them to undermine underminable phones is meaningless. The thing to fear is legislation.
- Zafira 11y ago
  You know, there's this thing called judicial review too.
notthegov 11y ago
I don't need the Supreme Court to tell me what my natural rights are regarding privacy. The answer is to reject this perverse notion of Judicial Review. This is what we should be lobbying for. I do not care what SCOTUS or a private corporation does or says. If you attempt to diminish natural rights you should be forwarned; I am coming after you directly to either alter or abolish the policies and government you have unjustly imposed over me and society. I don't care about these silly irrelevant constructs. My rights to privacy preexisted government, Apple, encryption and the Bill of Rights. If the DoJ ot FBI disagrees, then we should abolish them. I am no fan of the FBI and their fascist organization built by an oppressive corrupt criminal named Hoover. One day they will no longer exist and neither will this idea that little men in robes need to tell people what their obvious natural rights are.
- sadyourright 11y ago
  Completely right. Sad HN down votes truth.
draw_down 11y ago
I am not an expert on this stuff but hardcore conservatives are falling in line with law enforcement on this issue. I'm not so sure he would have sided with Apple here.
discardorama 11y ago
> No tinfoil intended here, but it strikes me as very unfortunate that the Supreme Court Justice most likely to be opposed to this recently passed away last weekend. I know Scalia fans like to believe this, but you are dead wrong. It would all depend on how the Republican/Conservative establishment feels. If the Republicans agreed with the Feds, you can bet your ass Scalia would side with them. The man had no principles, he was just an anti-Democrat and anti-Liberal.
- vsl 11y ago
  Your rant is the very definition of bigotry. People tend to be more nuanced than your B/W view of them.

lifeisstillgood 11y ago

I don't think you can lobby SCOTUS. Theoretically you could present an amicus brief but I think the bar is very high It's probably a good thing we can't lobby them

ianamartin 11y ago
You absolutely can write letters to the members individually. Perhaps lobby was a bad word for it. Perhaps my idea is broken on the face of it. But an amicus brief put together by the HN community doesn't seem completely unreasonable. My point here is that there are things we are capable of doing that might affect the outcome of such a court case. For those of us who care--in either direction--it seems reasonable to try. What I'm going to try to research and build this weekend is the most effective way of contacting the court and sharing your opinions. It could very well fail to be effective, but that's not going to stop me from trying.
- lifeisstillgood 11y ago
  I would be very interested in hearing your research - good luck
  - ianamartin 11y ago
    I will share what I come up with over the next couple of days. Hell even if it doesn't turn out well, it will be an interesting thing to put up on github to help me get a job.
- tamana 11y ago
  You can invite them to a weekend party at your branch, and bend their ear.

rtpg 11y ago

What is the ruling that prevents this exactly? There needs to be some basis, and considering the circumstances (individual warrant, not even property of the terrorist) I have a hard time seeing the constitutional argument here that is related to any right to privacy. Based off of the ruling handed down by the judge, it sounds like you could only rule that the work demanded of Apple is too onerous... I feel like that won't accomplish much though. I feel like this situation is pretty orthogonal to a ruling against any "Mandatory Backdoor" laws (which is the holy grail for us at this point)

acqq 11y ago
The question is, is this act (the whole text follows): https://en.wikipedia.org/wiki/All_Writs_Act https://en.wikipedia.org/wiki/All_Writs_Act "(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." a reasonable legal ground in this case to demand from a company to develop anything, in this case a special version of the operating system? Does this act mean "we can order anything to anybody"? Especially when there is "the Communications Assistance for Law Enforcement Act of 1992." If anything goes, as "All Writs" is tried to be used by the FBI now, we don't need any other laws. "All Writs" rules.

nkurz 11y ago

Did you see Robert Cringely's article where he comes to a very similar conclusion? Ironically, although he sees the same gambit, the two of you seem to be interpreting the situation completely opposite. If I'm reading you both right, you believe Scalia was the most likely to side with Apple, whereas he thinks Scalia was a sure vote for the FBI? What’s going on is Justice Antonin Scalia is dead. Had Justice Scalia not died unexpectedly a few days ago (notably before the Apple/FBI dustup) and had the FBI pursued the case with it landing finally in the Supreme Court, well the FBI would have probably won the case 5-4. Maybe not, but probably. With Justice Scalia dead and any possible replacement locked in a Republican-induced coma, the now eight-member Supreme Court has nominally four liberal and four conservative justices but at least 1.5 of those conservatives (Justice Kennedy and sometimes Chief Justice Roberts) have been known to turn moderate on certain decisions. This smaller court, which will apparently judge all cases for the next couple years, is likely to be more moderate than the Scalia Court ever was. So if you are a President who is a lawyer and former teacher of constitutional law and you’ve come over time to see that this idea of secret backdoors into encrypted devices is not really a good idea, but one that’s going to come up again and again pushed by nearly everyone from the other political party (and even a few from your own) wouldn’t right now be the best of all possible times to kinda-sorta fight this fight all the way to the Supreme Court and lose? If it doesn’t go all the way to the Supremes, there’s no chance to set a strong legal precedent and this issue will come back again and again and again. That’s what I am pretty sure is happening. http://www.cringely.com/2016/02/19/the-fbi-v-apple-isnt-at-all-the-way-you-think-it-is/ http://www.cringely.com/2016/02/19/the-fbi-v-apple-isnt-at-a...

ianamartin 11y ago
I did see that, and I think that Cringley is--like many other people who haven't paid attention--seriously misinterpreting Scalia's history on the court. My own, admittedly amateur, interpretation is that he's largely internally consistent with his ideas of protecting person freedoms and advocating in favor of judicial restraint. I see citizens united as an exanpsion of Scalia's attitude about protecting personal freedoms (and this is an expansion I disagree with, btw). His logic in Bergofell was that the court doesn't have the authority to meddle further in religious matters than it already has and needs to exercise restraint. In my opinion, the argument is stronger in Bergofell than it is in Citizens United, even though I agree with the result of the former and disagree with the latter. I could be incredibly wrong, but I think that over 30 years, Scalia has been a champion of individual rights and protections more often than not. Much to various people's chagrin at different times. That has sometimes led to good results and sometimes led to bad. I feel comfortable in this case making the assertion that Scalia would have definitively come down on the side of Apple, and done so in the heavy-handed manner that he was known for and probably persuaded a fence justice like Kennedy to side with him in this case. But possibly also bringing RBG in with him at the same time. Yes, it's all prognostication at this point, and I know that. But in my opinion, the bigger picture of Scalia outside of Citizens United and Obergefell are the history of someone who would have opposed the order against Apple. Cringley is just being Cringely: bigoted, hateful, and wrong. As usual. But then again, I could be really wrong. It does happen sometimes.

nickysielicki 11y ago

Maybe we want Apple to lose this case. If Apple wins, DOJ gets to turn around and push legislation mandating backdoors on the basis that terrorists are winning in their courts. The public will eat it up, because who the hell wants to side with some guy that murdered 20+ people in San Bernardino? Conversely, if Apple loses, there are no real lasting effects. Encrypted phones are the new norm, and the 5C is weaker than its successors. If Apple actually can't undermine the encryption (ie: like the newer iPhones), the courts can't force them to do anything. The precedent of being able to force them to undermine underminable phones is meaningless. The thing to fear is legislation.

Zafira 11y ago
You know, there's this thing called judicial review too.

notthegov 11y ago

I don't need the Supreme Court to tell me what my natural rights are regarding privacy. The answer is to reject this perverse notion of Judicial Review. This is what we should be lobbying for. I do not care what SCOTUS or a private corporation does or says. If you attempt to diminish natural rights you should be forwarned; I am coming after you directly to either alter or abolish the policies and government you have unjustly imposed over me and society. I don't care about these silly irrelevant constructs. My rights to privacy preexisted government, Apple, encryption and the Bill of Rights. If the DoJ ot FBI disagrees, then we should abolish them. I am no fan of the FBI and their fascist organization built by an oppressive corrupt criminal named Hoover. One day they will no longer exist and neither will this idea that little men in robes need to tell people what their obvious natural rights are.

sadyourright 11y ago
Completely right. Sad HN down votes truth.

draw_down 11y ago

I am not an expert on this stuff but hardcore conservatives are falling in line with law enforcement on this issue. I'm not so sure he would have sided with Apple here.

discardorama 11y ago

> No tinfoil intended here, but it strikes me as very unfortunate that the Supreme Court Justice most likely to be opposed to this recently passed away last weekend. I know Scalia fans like to believe this, but you are dead wrong. It would all depend on how the Republican/Conservative establishment feels. If the Republicans agreed with the Feds, you can bet your ass Scalia would side with them. The man had no principles, he was just an anti-Democrat and anti-Liberal.

vsl 11y ago
Your rant is the very definition of bigotry. People tend to be more nuanced than your B/W view of them.