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I'm pretty certain you and rtpg don't understand stare decisis. This isn't about this specific phone, or even the methodology. This is about the FBI cherry-pi

I'm pretty certain you and rtpg don't understand stare decisis. This isn't about this specific phone, or even the methodology. This is about the FBI cherry-picking a nearly throwaway (in terms of probable data value) case to set precedent in what is obvious to practitioners as a continuation of their War on Cryptography. The US legal system and education pertaining to it is largely composed of studying prior case law and its applications. Few cases (including this one) involve truly new decisions, and even those are usually novel applications of former decisions. That is what those who can see past their nose are concerned about. There is every probability that, in the near future, one or both of Apple or the judicial system will tire of the farce of one-phone-per-case firmware and request a new application of the law (because there would now be precedent). To take any laywer-moderated statement (including Apple's) at face value belies credulity that does not become the HN audience. As others have pointed out, Comey's appeals to emotion and terrorism should be enough, but the idea that an FBI lawyer would advise pursuing this particular case in this particular manner without expecting to set precedent? Positively silly. This is what they do.

ikeboy 11y ago
All I did was give some technical information. How did you conclude that I'm ignorant of law? If a new case is not similar to this case, then this case doesn't count as precedent. If a new case is similar to this case, then the arguments put forward for this case apply to the new case, and we shouldn't care about precedent setting. If the new case is similar but different in important ways, then when that new case is fought, the lawyers point ou the substantive differences, and it doesn't count as precedent. The only concern would seem to be if the future court fails to analyse a case properly. But they can fail regardless of what precedent is or is not set. I don't think individual cases should be ruled improperly because of concern about the precedent effect. You might want meta-level rules (e.g. Bill of Rights, free speech), but the individual actors should not be taking them into account except insofar as they have been legislated (although the Supreme Court perhaps should). TL;DR argue the damn object level.
- schismsubv 11y ago
  I conclude that you potentially misunderstand what is perhaps the core governing doctrine of US law because you keep re-presenting the same tired argument that this is about a single firmware tied to a single phone. If you truly believe it's about one phone, we don't have much to discuss. Whatever you think they should do, judges absolutely consider the precedent effect when ruling on accepting arguments, and lawyers most certainly consider precedent and setting it when presenting those arguments. There may be some intentional offloading of those decisions from lower courts to the appeals process, but no judge makes their decision in a vacuum. Nor should they.
  - ikeboy 11y ago
    > you keep re-presenting the same tired argument that this is about a single firmware tied to a single phone I mention that only when people assert incorrect facts about the case. Correcting someone when they're wrong about a matter of fact does not imply any legal opinions. About your point: there's a difference between "If I agree with argument X in this case, I should agree with it in that case; however, X shouldn't apply in that case, and I can make no principled distinction between the two. Therefore, X can't apply even in this case" and "I agree with argument X in this case, but not in that case; here's a principled distinction between the two; however, since it might lead to someone misinterpreting it down the line, I'm going to rule against X." The first is a concern for precedent that I'm fine with, the second is not. My understanding is that judges will lay out the reason X applies here but wouldn't apply in the other hypothetical, which makes the concern about it being used as precedent later unwarranted. The form of the argument here seems to be the second. "Yeah, this one is mostly fine, but we're fighting because of precedent. If they can force us to sign software and install it on a single phone, who's to stop them from forcing us to put software on every device we sell?" And the clear distinction between the two is that one is only being put on phones that have a warrant (and belong to the government, to boot), and the other would also harm innocents. So the proper response should be "comply with this order, but specifically because of the fact that no innocents are being caught up", and that way it doesn't set any harmful precedents. Or if you think there's a different reason why this case is fine but the general case isn't, then that itself is a reason for the general case not to have this case as precedent. Whatever those reasons are, make them explicit. If Apple puts those arguments into the court record, and the judge explicitly says "it's ok for X but not for Y",that defeats the harmful precedent. Am I misunderstanding anything, or do we just disagree?

ikeboy 11y ago

All I did was give some technical information. How did you conclude that I'm ignorant of law? If a new case is not similar to this case, then this case doesn't count as precedent. If a new case is similar to this case, then the arguments put forward for this case apply to the new case, and we shouldn't care about precedent setting. If the new case is similar but different in important ways, then when that new case is fought, the lawyers point ou the substantive differences, and it doesn't count as precedent. The only concern would seem to be if the future court fails to analyse a case properly. But they can fail regardless of what precedent is or is not set. I don't think individual cases should be ruled improperly because of concern about the precedent effect. You might want meta-level rules (e.g. Bill of Rights, free speech), but the individual actors should not be taking them into account except insofar as they have been legislated (although the Supreme Court perhaps should). TL;DR argue the damn object level.

schismsubv 11y ago
I conclude that you potentially misunderstand what is perhaps the core governing doctrine of US law because you keep re-presenting the same tired argument that this is about a single firmware tied to a single phone. If you truly believe it's about one phone, we don't have much to discuss. Whatever you think they should do, judges absolutely consider the precedent effect when ruling on accepting arguments, and lawyers most certainly consider precedent and setting it when presenting those arguments. There may be some intentional offloading of those decisions from lower courts to the appeals process, but no judge makes their decision in a vacuum. Nor should they.
- ikeboy 11y ago
  > you keep re-presenting the same tired argument that this is about a single firmware tied to a single phone I mention that only when people assert incorrect facts about the case. Correcting someone when they're wrong about a matter of fact does not imply any legal opinions. About your point: there's a difference between "If I agree with argument X in this case, I should agree with it in that case; however, X shouldn't apply in that case, and I can make no principled distinction between the two. Therefore, X can't apply even in this case" and "I agree with argument X in this case, but not in that case; here's a principled distinction between the two; however, since it might lead to someone misinterpreting it down the line, I'm going to rule against X." The first is a concern for precedent that I'm fine with, the second is not. My understanding is that judges will lay out the reason X applies here but wouldn't apply in the other hypothetical, which makes the concern about it being used as precedent later unwarranted. The form of the argument here seems to be the second. "Yeah, this one is mostly fine, but we're fighting because of precedent. If they can force us to sign software and install it on a single phone, who's to stop them from forcing us to put software on every device we sell?" And the clear distinction between the two is that one is only being put on phones that have a warrant (and belong to the government, to boot), and the other would also harm innocents. So the proper response should be "comply with this order, but specifically because of the fact that no innocents are being caught up", and that way it doesn't set any harmful precedents. Or if you think there's a different reason why this case is fine but the general case isn't, then that itself is a reason for the general case not to have this case as precedent. Whatever those reasons are, make them explicit. If Apple puts those arguments into the court record, and the judge explicitly says "it's ok for X but not for Y",that defeats the harmful precedent. Am I misunderstanding anything, or do we just disagree?