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> Are search warrants oppressive? A search warrant doesn't require me to create a new capability that did not exist before. From the FAQ: The digital world

by panarky 11y ago

> Are search warrants oppressive? A search warrant doesn't require me to create a new capability that did not exist before. From the FAQ: The digital world is very different from the physical world. In the physical world you can destroy something and it’s gone. But in the digital world, the technique, once created, could be used over and over again, on any number of devices... The only way to guarantee that such a powerful tool isn’t abused and doesn’t fall into the wrong hands is to never create it.

hahainternet 11y ago
> A search warrant doesn't require me to create a new capability that did not exist before. I don't see how that's relevant. If I invent a new kind of lock you've never seen before, you'll have to come up with a way to break it. I'm asking for why a search warrant would be oppressive, even if it involved creating new firmware for a safe.
- uxp 11y ago
  > If I invent a new kind of lock you've never seen before, you'll have to come up with a way to break it. Why?
otterley 11y ago
> A search warrant doesn't require me to create a new capability that did not exist before. It might, depending on the analytical outcome of the three-factor test introduced in the _New York Telephone_ case. (This case was decided before compelled pen register assistance was prescribed by Congressional legislation.) The case itself is illustrative and enlightening: https://supreme.justia.com/cases/federal/us/434/159/case.html https://supreme.justia.com/cases/federal/us/434/159/case.htm... "The power conferred by the [All Writs] Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice..." The factors are: (1) whether the third party is "so far removed as a third party from the underlying controversy that its assistance could not permissibly be compelled by the order of the court" (2) Whether the burden placed on the third party is "unreasonable" (3) Whether the assistance is "essential to the fulfillment of the purpose" of the warrant It's unfortunate that Hacker News isn't commented upon by more attorneys, and that most news articles don't link directly to the legal filings in these cases; much confusion and false assumptions about the law could be clarified.
- snowwrestler 11y ago
  Orin Kerr has written about the implications of that case specifically: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/19/preliminary-thoughts-on-the-apple-iphone-order-in-the-san-bernardino-case-part-2-the-all-writs-act/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201... A potentially important factor is that the phone companies used pen registers themselves all the time, whereas Apple has no desire at all to write the software that the FBI wants. It's worth noting that despite the outcome of that case, Congress still had to pass CALEA, which seems to imply there are limits to what can be compelled under All Writs.
  - teacup50 11y ago
    There are very few limits to the power of the All Writs Act -- the act, passed the same week as the fourth amendment, grants the courts (not the FBI) the authority to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law". However, you actually have to get to the courts before the All Writs Act can be applied. CALEA was passed to create a preemptive requirement for standardized wiretap interfaces/equipment, processes, etc, prior to any actual judicial warrant or writ being written. The fourth amendment grants us protection against "unreasonable" search and seizure, but doesn't grant the government an affirmative right to require that future "reasonable" searches be easy, or possible. It also (unfortunately, in my view) doesn't prevent the government from requiring preemptive action to support future searches, and that's what CALEA does.
    - maxerickson 11y ago
      Put * on each side of text you want italicized. More at https://news.ycombinator.com/formatdoc https://news.ycombinator.com/formatdoc
      - teacup50 11y ago
        Edited accordingly, thanks!
    - 11y ago
vectorjohn 11y ago
The FBI or other agencies require things that cost money all the time. In this case, they offered to compensate Apple for they work. And it's disingenuous for Apple to say "create a whole new operating system". That's so absurd as to be pretty much a lie. What the FBI wants is not much more work than unlocking a door, just for more highly paid people. And calling it "creating new technology" (not your words, but others'), is silly too. Doing almost anything with software is creating new software, but calling it new technology makes it sound like they have to go out and do a bunch of R&D and make some significant breakthroughs or something. In reality, it's a trivial thing. To address the quote you posted, it sounds like Apple is probably lying there too. Especially given the vast exaggerations in other parts. I highly doubt they would have a hard time making a modified OS that was device locked. But if it's really true that they can't make a device locked firmware, well, then of course I hope they win this fight.

by panarky 11y ago

hahainternet 11y ago

> A search warrant doesn't require me to create a new capability that did not exist before. I don't see how that's relevant. If I invent a new kind of lock you've never seen before, you'll have to come up with a way to break it. I'm asking for why a search warrant would be oppressive, even if it involved creating new firmware for a safe.

uxp 11y ago
> If I invent a new kind of lock you've never seen before, you'll have to come up with a way to break it. Why?

otterley 11y ago

> A search warrant doesn't require me to create a new capability that did not exist before. It might, depending on the analytical outcome of the three-factor test introduced in the _New York Telephone_ case. (This case was decided before compelled pen register assistance was prescribed by Congressional legislation.) The case itself is illustrative and enlightening: https://supreme.justia.com/cases/federal/us/434/159/case.html https://supreme.justia.com/cases/federal/us/434/159/case.htm... "The power conferred by the [All Writs] Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice..." The factors are: (1) whether the third party is "so far removed as a third party from the underlying controversy that its assistance could not permissibly be compelled by the order of the court" (2) Whether the burden placed on the third party is "unreasonable" (3) Whether the assistance is "essential to the fulfillment of the purpose" of the warrant It's unfortunate that Hacker News isn't commented upon by more attorneys, and that most news articles don't link directly to the legal filings in these cases; much confusion and false assumptions about the law could be clarified.

snowwrestler 11y ago
Orin Kerr has written about the implications of that case specifically: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/19/preliminary-thoughts-on-the-apple-iphone-order-in-the-san-bernardino-case-part-2-the-all-writs-act/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201... A potentially important factor is that the phone companies used pen registers themselves all the time, whereas Apple has no desire at all to write the software that the FBI wants. It's worth noting that despite the outcome of that case, Congress still had to pass CALEA, which seems to imply there are limits to what can be compelled under All Writs.
- teacup50 11y ago
  There are very few limits to the power of the All Writs Act -- the act, passed the same week as the fourth amendment, grants the courts (not the FBI) the authority to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law". However, you actually have to get to the courts before the All Writs Act can be applied. CALEA was passed to create a preemptive requirement for standardized wiretap interfaces/equipment, processes, etc, prior to any actual judicial warrant or writ being written. The fourth amendment grants us protection against "unreasonable" search and seizure, but doesn't grant the government an affirmative right to require that future "reasonable" searches be easy, or possible. It also (unfortunately, in my view) doesn't prevent the government from requiring preemptive action to support future searches, and that's what CALEA does.
  - maxerickson 11y ago
    Put * on each side of text you want italicized. More at https://news.ycombinator.com/formatdoc https://news.ycombinator.com/formatdoc
    - teacup50 11y ago
      Edited accordingly, thanks!
  - 11y ago

vectorjohn 11y ago

The FBI or other agencies require things that cost money all the time. In this case, they offered to compensate Apple for they work. And it's disingenuous for Apple to say "create a whole new operating system". That's so absurd as to be pretty much a lie. What the FBI wants is not much more work than unlocking a door, just for more highly paid people. And calling it "creating new technology" (not your words, but others'), is silly too. Doing almost anything with software is creating new software, but calling it new technology makes it sound like they have to go out and do a bunch of R&D and make some significant breakthroughs or something. In reality, it's a trivial thing. To address the quote you posted, it sounds like Apple is probably lying there too. Especially given the vast exaggerations in other parts. I highly doubt they would have a hard time making a modified OS that was device locked. But if it's really true that they can't make a device locked firmware, well, then of course I hope they win this fight.