4 ms·

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

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?
- schismsubv 11y ago
  It's possible that I missed any concern the judge may have had for precedent when I read the ruling. If you know of any (or any other document I may have missed), I'd appreciate a pointer. I think you're applying some fairly strict high-mindedness to the US legal system while others (myself included) worry that creative extension of intent appears rampant in cases that touch on technology or terrorism and therefore fall into your second form. Many of us don't, as a general rule, trust the courts, law enforcement, or our government to do anything but what is politically expedient and beneficial to them at the moment. While the wording of this ruling is about one phone and a particular method the FBI has laid out, it appears to set precedent that law enforcement can compel a product company create a non-existent product (no matter how trivial) in order to exploit a known security vulnerability in one of their products. This is what concerns me and many others, because it brings us very short steps away from "make us a version that works against the Secure Enclave" to "make it work as an OTA update over WiFi" to then "make it work as an OTA update over cellular" and subsequently "make a version we can incorporate into a StingRay" and forward. None of these would be illogical steps to take in abject pursuit of stamping out terrorism and might even applauded by parts of society, but taken as what some perceive as an inevitable whole they paint a dim picture for personal privacy. It's an improbable coincidence that the FBI has elected this particular charged case in which to stake their flag. Given their pleas with technology companies for cooperation over bypassing cryptography in recent months, this appears to be a logical continuation of that campaign. In conclusion, we likely disagree, specifically due to my cynicism and your seeming lack thereof.
  - ikeboy 11y ago
    >I think you're applying some fairly strict high-mindedness to the US legal system while others (myself included) worry that creative extension of intent appears rampant in cases that touch on technology or terrorism and therefore fall into your second form. My main point related to this was above: >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. To argue against that, you'd need to claim that precedent makes it easier for the later court to fail. Do you have examples, where it should have been clear that precedent didn't apply, yet the court reached the conclusion that it did, incorrectly? (Preferably in important cases.) >While the wording of this ruling is about one phone and a particular method the FBI has laid out, it appears to set precedent that law enforcement can compel a product company create a non-existent product (no matter how trivial) in order to exploit a known security vulnerability in one of their products. I've said elsewhere that this argument seems to be useless. If Apple says it's "unreasonable" to expect them to do this, then they might be forced to hand over the source code, and the FBI will create it themself. The problem is 1. iOS is closed source and 2. iPhone requires a signature from Apple If Apple doesn't help them, they could conceivably be forced to simply hand the keys and code over. It's a benefit to Apple to be able to create it themselves and maintain control over the keys. >This is what concerns me and many others, because it brings us very short steps away from "make us a version that works against the Secure Enclave" to "make it work as an OTA update over WiFi" to then "make it work as an OTA update over cellular" All of these seem fine, assuming that Apple is not modifying the phones to make it easier to hack. In other words, I agree that they follow as direct precedent from this case. (Although they can decide to only update a phone after a proper warrant.) >make a version we can incorporate into a StingRay This is the part that doesn't follow from precedent. Giving over control of the tool to the FBI who could use it without a warrant is novel, and would require a judge to justify it. >In conclusion, we likely disagree, specifically due to my cynicism and your seeming lack thereof. Maybe I'm just more cynical than you. You worry about a future court doing the wrong thing because they're misled by precedent here, I'm worried about a future court doing the wrong thing just because. I don't think the risk goes up significantly based on this precedent, because I think it could happen anyway. >It's an improbable coincidence that the FBI has elected this particular charged case in which to stake their flag. Given their pleas with technology companies for cooperation over bypassing cryptography in recent months, this appears to be a logical continuation of that campaign. Pure tinfoil material here. Do you know of any cases where the FBI had a phone but didn't try to unlock it, that could be said to be as urgent as this? This isn't the only court case with Apple going on, it's merely the one that got a lot of attention, and certainly much of that attention is Apple's fault (not all, but a lot).

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?

schismsubv 11y ago
It's possible that I missed any concern the judge may have had for precedent when I read the ruling. If you know of any (or any other document I may have missed), I'd appreciate a pointer. I think you're applying some fairly strict high-mindedness to the US legal system while others (myself included) worry that creative extension of intent appears rampant in cases that touch on technology or terrorism and therefore fall into your second form. Many of us don't, as a general rule, trust the courts, law enforcement, or our government to do anything but what is politically expedient and beneficial to them at the moment. While the wording of this ruling is about one phone and a particular method the FBI has laid out, it appears to set precedent that law enforcement can compel a product company create a non-existent product (no matter how trivial) in order to exploit a known security vulnerability in one of their products. This is what concerns me and many others, because it brings us very short steps away from "make us a version that works against the Secure Enclave" to "make it work as an OTA update over WiFi" to then "make it work as an OTA update over cellular" and subsequently "make a version we can incorporate into a StingRay" and forward. None of these would be illogical steps to take in abject pursuit of stamping out terrorism and might even applauded by parts of society, but taken as what some perceive as an inevitable whole they paint a dim picture for personal privacy. It's an improbable coincidence that the FBI has elected this particular charged case in which to stake their flag. Given their pleas with technology companies for cooperation over bypassing cryptography in recent months, this appears to be a logical continuation of that campaign. In conclusion, we likely disagree, specifically due to my cynicism and your seeming lack thereof.
- ikeboy 11y ago
  >I think you're applying some fairly strict high-mindedness to the US legal system while others (myself included) worry that creative extension of intent appears rampant in cases that touch on technology or terrorism and therefore fall into your second form. My main point related to this was above: >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. To argue against that, you'd need to claim that precedent makes it easier for the later court to fail. Do you have examples, where it should have been clear that precedent didn't apply, yet the court reached the conclusion that it did, incorrectly? (Preferably in important cases.) >While the wording of this ruling is about one phone and a particular method the FBI has laid out, it appears to set precedent that law enforcement can compel a product company create a non-existent product (no matter how trivial) in order to exploit a known security vulnerability in one of their products. I've said elsewhere that this argument seems to be useless. If Apple says it's "unreasonable" to expect them to do this, then they might be forced to hand over the source code, and the FBI will create it themself. The problem is 1. iOS is closed source and 2. iPhone requires a signature from Apple If Apple doesn't help them, they could conceivably be forced to simply hand the keys and code over. It's a benefit to Apple to be able to create it themselves and maintain control over the keys. >This is what concerns me and many others, because it brings us very short steps away from "make us a version that works against the Secure Enclave" to "make it work as an OTA update over WiFi" to then "make it work as an OTA update over cellular" All of these seem fine, assuming that Apple is not modifying the phones to make it easier to hack. In other words, I agree that they follow as direct precedent from this case. (Although they can decide to only update a phone after a proper warrant.) >make a version we can incorporate into a StingRay This is the part that doesn't follow from precedent. Giving over control of the tool to the FBI who could use it without a warrant is novel, and would require a judge to justify it. >In conclusion, we likely disagree, specifically due to my cynicism and your seeming lack thereof. Maybe I'm just more cynical than you. You worry about a future court doing the wrong thing because they're misled by precedent here, I'm worried about a future court doing the wrong thing just because. I don't think the risk goes up significantly based on this precedent, because I think it could happen anyway. >It's an improbable coincidence that the FBI has elected this particular charged case in which to stake their flag. Given their pleas with technology companies for cooperation over bypassing cryptography in recent months, this appears to be a logical continuation of that campaign. Pure tinfoil material here. Do you know of any cases where the FBI had a phone but didn't try to unlock it, that could be said to be as urgent as this? This isn't the only court case with Apple going on, it's merely the one that got a lot of attention, and certainly much of that attention is Apple's fault (not all, but a lot).