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It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before. We shouldn’t drift to a place—or be

It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before. We shouldn’t drift to a place—or be pushed to a place by the loudest voices—because finding the right place, the right balance, will matter to every American for a very long time. So why are they asking the courts to stretch the 1789 All Writs Act beyond its breaking point, instead of going to Congress for a new law? The magistrate that signed off on this isn't even an Article III judge.

wyldfire 11y ago
> ... instead of going to Congress for a new law I hate to be in the position of defending the FBI, but this new law would be irrelevant if it's ex post facto, yeah?
- bradleyjg 11y ago
  No. The ex post facto clause of the constitution only forbids certain types of retroactive criminal laws. See Calder v. Bull for the details.
mhays 11y ago
Except he did go to Congress, and came back with nothing, forcing him to use the AWA. So who is pushing who exactly? And who has a louder voice in criminal justice matters than the FBI?
- BWStearns 11y ago
  Hadn't thought about it this way before, but he might be turning to the AWA because a reasonable piece of legislation can't make it through congress.
  - snowwrestler 11y ago
    Reasonable according to whom? And Congress passed a ton of stuff last year, it's not like it is totally deadlocked. The FBI would love a federal law that forces Apple to crack phones for them. Since they don't have one, they are trying to get a court to invent one by stretching the All Writs Act.
  - justin_vanw 11y ago
    Reasonable according to whom? This is why we have Rule of Law. There is no "we follow the law when it seems reasonable". Whatever the law is, it should be followed, and it does not matter at all what anyone's personal opinion is regarding what the law should be. Perhaps it is more complex than this, for example in cases of civil disobedience. However, civil disobedience is for cases of conscience when you cannot personally participate in something that is immoral, so you refuse to participate or you protest it. The key here is that this is ignoring the law to resist immoral uses of power, not ignoring the law to remove intentional restrictions to the application of allocated authority. This applies doubly to the legal system itself. An appeal to the inability of legislatures to "get things done" has been the argument of every tyrant since Caesar.
    - BWStearns 11y ago
      I was suggesting following the rule of law. Congress passes laws when they get around to it. I'm not in any way advancing that we should ban encryption or support backdoors (effectively banning encryption). I will not however pretend that I have exhaustively considered all legislation that would allow the FBI to open this phone without setting dangerous precedents. I can't think of any at the moment but I don't think anyone in a position to do anything with an answer is trying. The issue is too good a political bludgeon to bother even seeking some creative solution to the problem (again, not that I am 100% sure there even is a legislative solution that wouldn't be a vastly undesirable and possibly unconstitutional blow to encryption). It is not a good starting presumption that no reasonable answer can be reached, especially when the topic under discussion isn't a core issue like "backdoor all encryption" but rather "is it possible to pass reasonable and generally acceptable legislation such that Apple can legally be compelled to aid this decryption effort without setting a terrible precedent?" There may be no solution to that problem, which is fine, but don't suggest that I was endorsing some vaguely Orwellian shit because I don't presume as a given that our opponents on the general issue of encryption have malicious aspirations of tyranny.
      - ltbarcly3 11y ago
        It's not vaguely Orwellian. Given an ability to disregard the rule of law, and sufficient charisma, and some hard times, any country can become a dictatorship in 5 years. We can't kill every charismatic person, and we can't prevent hard times. We can insist on the rule of law.
  - mtgx 11y ago
    I think that was his point. If he can't pass a law through the People's representatives, then he shouldn't be using mental gymnastics with one of US's oldest laws in existence to force a company to hack its own device... And no, "Congress gridlock" is not a good response to abusing existing laws.
    - BWStearns 11y ago
      It's not a good excuse to abuse existing law but it seems like a likely explanation.
- bradleyjg 11y ago
  Forcing him how? If he came back with nothing, that's his answer. The answer of the American people. Perhaps he should learn what no means.
  - AndrewKemendo 11y ago
    Except the American People also gave him the job to following any and every possible lead. There is a fundamental conflict with how law enforcement and intelligence does it's job and the way people communicate today. Period. If people want more secure communications they are going to have to tell the FBI in no uncertain terms "we are ok with you dropping leads." Apparently in this specific case that has happened as a mother of the slain said: “This is what separates us from communism, isn’t it? The fact we have the right to privacy,” Adams said to the Post. “This is what makes America great to begin with, that we abide by a constitution that gives us the right of privacy, the right to bear arms, and the right to vote.” Now, is it up to this mother to make that case? Yea, if the director is to be listened to. After all that is who he invokes when appealing his reasoning. So based on this statement it seems like they should back off, say shit happens, lets mourn our dead and move on. We need more of the victims to speak out and tell investigations their true thoughts. [1]http://fortune.com/2016/02/19/victim-apple-fbi/ http://fortune.com/2016/02/19/victim-apple-fbi/
    - rl3 11y ago
      >So based on this statement it seems like they should back off, say shit happens, lets mourn our dead and move on. Agreed. It's not like the investigators are totally in the dark here, either. In addition to the rest of the FBI investigation, given the terrorist/national security nature of the case, it's likely that anything the shooters did online during the past few years was pulled and analyzed—including internet history, e-mail, chat and phone conversations—rendering a pretty good picture of both their interests and associations. If the FBI didn't do this (they can if it's a national security case), then the intelligence community certainly did.
    - studentrob 11y ago
      Some victims are being represented pro-bono in a case against Apple [1] [1] http://www.reuters.com/article/us-apple-encryption-victims-exclusive-idUSKCN0VV00B http://www.reuters.com/article/us-apple-encryption-victims-e... There should be more discussion. Tech companies should seek to understand the government's job to keep people safe, and the government needs to understand that this is a game of whack-a-mole they can't win
- mtgx 11y ago
  Exactly. From the public and its representatives' view, the matter is settled. But the FBI keeps saying "we need more debates on this" because it didn't go the way it wanted it to go.
IBM 11y ago
The high profile nature of this court case will ultimately be leveraged into getting Congress to take it up if they lose. I think Apple has a very good case for arguing under AWA that the order is too burdensome, and if the court doesn't agree I think they've got a good case to argue that it infringes their First Amendment right.
rtpg 11y ago
For the lazy: "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." This law is basically "The courts can enable discovery and describe implementation of rulings." Setting up the rules of the game. Could you share why you think that this is a stretch of the AWA? Is it because of the amount of work asked ?

wyldfire 11y ago

> ... instead of going to Congress for a new law I hate to be in the position of defending the FBI, but this new law would be irrelevant if it's ex post facto, yeah?

bradleyjg 11y ago
No. The ex post facto clause of the constitution only forbids certain types of retroactive criminal laws. See Calder v. Bull for the details.

mhays 11y ago

Except he did go to Congress, and came back with nothing, forcing him to use the AWA. So who is pushing who exactly? And who has a louder voice in criminal justice matters than the FBI?

BWStearns 11y ago
Hadn't thought about it this way before, but he might be turning to the AWA because a reasonable piece of legislation can't make it through congress.
- snowwrestler 11y ago
  Reasonable according to whom? And Congress passed a ton of stuff last year, it's not like it is totally deadlocked. The FBI would love a federal law that forces Apple to crack phones for them. Since they don't have one, they are trying to get a court to invent one by stretching the All Writs Act.
- justin_vanw 11y ago
  Reasonable according to whom? This is why we have Rule of Law. There is no "we follow the law when it seems reasonable". Whatever the law is, it should be followed, and it does not matter at all what anyone's personal opinion is regarding what the law should be. Perhaps it is more complex than this, for example in cases of civil disobedience. However, civil disobedience is for cases of conscience when you cannot personally participate in something that is immoral, so you refuse to participate or you protest it. The key here is that this is ignoring the law to resist immoral uses of power, not ignoring the law to remove intentional restrictions to the application of allocated authority. This applies doubly to the legal system itself. An appeal to the inability of legislatures to "get things done" has been the argument of every tyrant since Caesar.
  - BWStearns 11y ago
    I was suggesting following the rule of law. Congress passes laws when they get around to it. I'm not in any way advancing that we should ban encryption or support backdoors (effectively banning encryption). I will not however pretend that I have exhaustively considered all legislation that would allow the FBI to open this phone without setting dangerous precedents. I can't think of any at the moment but I don't think anyone in a position to do anything with an answer is trying. The issue is too good a political bludgeon to bother even seeking some creative solution to the problem (again, not that I am 100% sure there even is a legislative solution that wouldn't be a vastly undesirable and possibly unconstitutional blow to encryption). It is not a good starting presumption that no reasonable answer can be reached, especially when the topic under discussion isn't a core issue like "backdoor all encryption" but rather "is it possible to pass reasonable and generally acceptable legislation such that Apple can legally be compelled to aid this decryption effort without setting a terrible precedent?" There may be no solution to that problem, which is fine, but don't suggest that I was endorsing some vaguely Orwellian shit because I don't presume as a given that our opponents on the general issue of encryption have malicious aspirations of tyranny.
    - ltbarcly3 11y ago
      It's not vaguely Orwellian. Given an ability to disregard the rule of law, and sufficient charisma, and some hard times, any country can become a dictatorship in 5 years. We can't kill every charismatic person, and we can't prevent hard times. We can insist on the rule of law.
- mtgx 11y ago
  I think that was his point. If he can't pass a law through the People's representatives, then he shouldn't be using mental gymnastics with one of US's oldest laws in existence to force a company to hack its own device... And no, "Congress gridlock" is not a good response to abusing existing laws.
  - BWStearns 11y ago
    It's not a good excuse to abuse existing law but it seems like a likely explanation.
bradleyjg 11y ago
Forcing him how? If he came back with nothing, that's his answer. The answer of the American people. Perhaps he should learn what no means.
- AndrewKemendo 11y ago
  Except the American People also gave him the job to following any and every possible lead. There is a fundamental conflict with how law enforcement and intelligence does it's job and the way people communicate today. Period. If people want more secure communications they are going to have to tell the FBI in no uncertain terms "we are ok with you dropping leads." Apparently in this specific case that has happened as a mother of the slain said: “This is what separates us from communism, isn’t it? The fact we have the right to privacy,” Adams said to the Post. “This is what makes America great to begin with, that we abide by a constitution that gives us the right of privacy, the right to bear arms, and the right to vote.” Now, is it up to this mother to make that case? Yea, if the director is to be listened to. After all that is who he invokes when appealing his reasoning. So based on this statement it seems like they should back off, say shit happens, lets mourn our dead and move on. We need more of the victims to speak out and tell investigations their true thoughts. [1]http://fortune.com/2016/02/19/victim-apple-fbi/ http://fortune.com/2016/02/19/victim-apple-fbi/
  - rl3 11y ago
    >So based on this statement it seems like they should back off, say shit happens, lets mourn our dead and move on. Agreed. It's not like the investigators are totally in the dark here, either. In addition to the rest of the FBI investigation, given the terrorist/national security nature of the case, it's likely that anything the shooters did online during the past few years was pulled and analyzed—including internet history, e-mail, chat and phone conversations—rendering a pretty good picture of both their interests and associations. If the FBI didn't do this (they can if it's a national security case), then the intelligence community certainly did.
  - studentrob 11y ago
    Some victims are being represented pro-bono in a case against Apple [1] [1] http://www.reuters.com/article/us-apple-encryption-victims-exclusive-idUSKCN0VV00B http://www.reuters.com/article/us-apple-encryption-victims-e... There should be more discussion. Tech companies should seek to understand the government's job to keep people safe, and the government needs to understand that this is a game of whack-a-mole they can't win
mtgx 11y ago
Exactly. From the public and its representatives' view, the matter is settled. But the FBI keeps saying "we need more debates on this" because it didn't go the way it wanted it to go.

IBM 11y ago

The high profile nature of this court case will ultimately be leveraged into getting Congress to take it up if they lose. I think Apple has a very good case for arguing under AWA that the order is too burdensome, and if the court doesn't agree I think they've got a good case to argue that it infringes their First Amendment right.

rtpg 11y ago

For the lazy: "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." This law is basically "The courts can enable discovery and describe implementation of rulings." Setting up the rules of the game. Could you share why you think that this is a stretch of the AWA? Is it because of the amount of work asked ?