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Brooklyn Judge: Feds Can't Use All Writs Act to Force Apple's Hand [pdf]

797 points by coloneltcb 11y ago

msbarnett 11y ago
Not especially shocking. The Gov'ts proposed theory of the All Writs Act as the legal equivalent of "sudo do whatever I want" was pretty damn tenuous.
- taylorwc 11y ago
  > sudo do whatever I want What a fantastic way of putting it. Makes the point and good for a chuckle.
  - gpvos 11y ago
    Just in case someone doesn't get the reference: https://xkcd.com/149/ https://xkcd.com/149/
    - j_koreth 11y ago
      I think this stands without being a reference
      - banku_brougham 11y ago
        Non-tech people read this site too. What % of the general population knows what sudo is? My auto-correct changes 'sudo' to 'Audi'. The real problem is that the xkcd reference doesn't explain what sudo means.
        extesy 11y ago
        There's a site dedicated to explaining various xkcd: https://www.explainxkcd.com/wiki/index.php/149:_Sandwich https://www.explainxkcd.com/wiki/index.php/149:_Sandwich
        thesimpsons1022 11y ago
        we shouldn't be explaining something using the xkcd which doesn't illuminate the topic at all and further needs to be explained.
        techabuse 11y ago
        Oh boy. Turtles all the way down.
        taylorwc 11y ago
        You're right that a tiny portion of the general population would know what sudo is, but surely among HN readers there is a huge base that would understand, or at least grok what it is after a quick search. Not advocating that HN isn't for non-tech-people, just saying that neither the reference nor the xkcd were out of place for this audience.
        crucialfelix 11y ago
        This is tech site. If you are see something you don't understand, you should just google it. As a tech person I encounter things every day that I don't know about, and I google many of them. Why should "non-tech" people be protected from the chore of googling ? Isn't that why people come here – to encounter things that they don't know about ?
        banku_brougham 11y ago
        Not trying to "protect" anyone. Thing is, even googling sudo doesn't give someone who has never sudo'ed the insight behind the comic. So, yep.
    - runholm 11y ago
      It's not really a reference. It's just the same joke. I am pretty sure I have saw "sudo <real life action>" as a joke around the internet long before xkcd did it.
- paulddraper 11y ago
  +1 sudo indeed
- clamprecht 11y ago
  It seems easy to rule out the "do whatever I want interpretation". If this were true, the Constitution becomes unnecessary. This is a contradiction. QED
  - dragonwriter 11y ago
    The government's actual interpretation wasn't quite broad enough to allow that dismissal: the proposed interpretation was essentially that AWA allows courts to order anything so long as neither the Constitution nor laws passed by Congress explicitly forbid it.
    - acqq 11y ago
      > AWA allows courts to order anything so long as neither the Constitution nor laws passed by Congress explicitly forbid it. And that interpretation the judge considers absurd: "the government's construction of the AWA produces absurd results in application. If, for example the President sent to Congress a bill explicitly authorizing a court to issue the kind of order the government seeks here, and if every single member of the House and Senate were to vote against the enactment of such a law citing the kinds of data security and personal privacy concerns that Apple now embraces, the government would nevertheless describe the order sought here as permissible because Congress had merely rejected the bill – however emphatically, and however clear its reasons for doing so – rather than affirmatively passing legislation to prohibit the executive branch's proposal. Yet in such circumstances, it would be absurd to posit that the authority the government sought was anything other than obnoxious to the law." And there's the related law in which Congress explicitly didn't oblige the companies: CALEA.
      - ikeboy 11y ago
        Wouldn't the same argument apply to any time congress delegates authority? I.E. They allow some agency to decree certain things with the force of a law. Whatever that agency decides within the bounds of the constitution is law, even if congress debated that point and didn't expressly permit it.
- GunboatDiplomat 11y ago
  `sudo rm -rf /privacy`
CiPHPerCoder 11y ago
The conclusion is pretty clear. Ultimately, the question to be answered in this matter, and in others like it across the country, is not whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come. For the reasons set forth above, I conclude that it does not. The government's motion is denied. It doesn't answer the question that was on my mind ("Can the FBI force Apple to write and cryptographically sign a less-secure version of their operating system?"), but it's nice to know that the AWA doesn't grant them that capability.
- y0y 11y ago
  I've seen a lot of doom and gloom about the current state of the US government all around the internet, but I have to say that this kind of thing helps me remain optimistic. A judge is free to make his or her decision without fear of coercion or some fanciful Tom Clancy-esque story unfolding as some people seem to believe things to work. The system may be flawed, but it's not broken yet.
  - r00fus 11y ago
    I would feel a lot more confident about the US's overall state of corruption if the defendant in this case weren't the largest capitalized company in the world. Would this case have come to the same result (which is likely to be appealed) if it was say UnluckySmallCo. instead of Apple that was on the receiving end of the government's pressure?
    - AnimalMuppet 11y ago
      If UnluckySmallCo. had created a phone that was used by defendants in nine separate cases, they probably would be big enough to handle it.
      - CiPHPerCoder 11y ago
        Let's look at it from a different angle: What if you were a GNU/Linux distro maintainer and nine defendants had used your OS instead of Windows? Could you be forced to help the FBI?
afarrell 11y ago
It is also worth reading Apple's motion in this case: https://www.documentcloud.org/documents/2722199-5-15-MJ-00451-SP-USA-v-Black-Lexus-IS300.html https://www.documentcloud.org/documents/2722199-5-15-MJ-0045... Actually I just noticed something about the title of the case: USA vs Black Lexus IS300. Is this actually a criminal forfeiture case?
- msbarnett 11y ago
  That's a motion from a case in California. This ruling is from one in New York. It's confusing because the Goverment has advanced this All Writs theory in 9 different currently ongoing cases to try to get it to stick.
  - chimeracoder 11y ago
    > It's confusing because the Goverment has advanced this All Writs theory in 9 different currently ongoing cases to try to get it to stick. The only one I've heard about is the San Bernardino shooter's phone. What are the other eight cases?
    - msbarnett 11y ago
      The New York case this ruling came out of is one of them. This list has all of the ones Apple listed in a filling in this New York case: http://appleinsider.com/articles/16/02/23/in-new-court-filing-apple-cites-9-other-cases-in-which-fbi-asserted-the-all-writs-act http://appleinsider.com/articles/16/02/23/in-new-court-filin...
- caf 11y ago
  It seems that applications for search warrants are also USA vs <property-to-be-searched> cases.
dmitrygr 11y ago
"As explained below, after reviewing the facts in the record and the parties' arguments,I conclude that none of those factors justifies imposing on Apple the obligation to assist the government's investigation against its will. I therefore deny the motion."
deleted 11y ago
[deleted]
nickysielicki 11y ago
From the first page, (and the same sentiment is found throughout the whole document) > the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it. Bingo! I've said it on HN since the beginning of this case [1,2,3], and I'll continue to say it. This case is about making backdoor legislation palatable. Don't get caught up in the precedent set by this case, it's more or less inapplicable when Apple (etc.) can't flash the device without effectively wiping it, which is where things are headed. [4] [1]: https://news.ycombinator.com/item?id=11139515 https://news.ycombinator.com/item?id=11139515 [2]: https://news.ycombinator.com/item?id=11139497 https://news.ycombinator.com/item?id=11139497 [3]: https://news.ycombinator.com/item?id=11164617 https://news.ycombinator.com/item?id=11164617 [4]: http://www.cnbc.com/2016/02/24/apple-is-said-to-be-working-on-an-iphone-even-it-cant-hack.html http://www.cnbc.com/2016/02/24/apple-is-said-to-be-working-o...
- nikdaheratik 11y ago
  Except that if the ruling had gone the other way you could say that this is a way of pursuing <nebulous government intrusion> without going through Congress. The reality is that the people who want to be able to decrypt at will are just pursuing every option available to them.
acqq 11y ago
Note that this is not the San Bernardino shooter case but just the drug case in NY. Still, Judge Orenstein gave some extremely important arguments regarding the All Writs Act (AWA) that the government tries to use: "The plain text of the statute thus confers on all federal courts the authority to issue orders where three requirements are satisfied: 1. issuance of the writ must be "in aid of" the issuing court's jurisdiction; 2. the type of writ requested must be "necessary or appropriate" to provide such aid to the issuing court's jurisdiction; and 3. the issuance of the writ must be "agreeable to the usages and principles of law."" "As set forth below, I conclude that in the circumstances of this case, the government's application does not fully satisfy the statute's threshold requirements: although the government easily satisfies the statute's first two elements, the extraordinary relief it seeks cannot be considered "agreeable to the usages and principles of law." In arguing to the contrary, the government posits a reading of the latter phrase so expansive – and in particular, in such tension with the doctrine of separation of powers – as to cast doubt on the AWA's constitutionality if adopted." In short, he recognized that "All Writs Act" can't mean "we can order anything we want to" to allow (in this case) DEA not following the laws that already exist (which specifically don't prescribe what DEA demands from Apple).
- acqq 11y ago
  Also revealing, Apple documented to this judge other AWA-based requests made in the last months: "Apple identified nine requests filed in federal courts across the country from October 8, 2015 (the date of the instant Application) through February 9, 2016. Id. at 2. In each, Apple has been ordered under the authority of the AWA (or has been told that an order has been requested or entered) to help the government bypass the passcode security of a total of twelve devices; in each such case in which Apple has actually received a court order, Apple has objected"
- Esau 11y ago
  And this is the way it should be. Otherwise, we are all deputized slaves to the government.
  - acqq 11y ago
deleted 11y ago
[deleted]
matsur 11y ago
This seems to be the core point here — the US Code is a whitelist, not a blacklist: "The government's position also produces a wholly different kind of absurdity: the idea that the First Congress might so thoroughly undermine fundamental principles of the Constitution that many of its members had personally just helped to write or to ratify. Its preferred reading of the law – which allows a court to confer on the executive branch any investigative authority Congress has decided to withhold, so long as it has not affirmatively outlawed it – would transform the AWA from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress's superior ability to prohibit or preempt. I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction."
- acqq 11y ago
  And "It is wholly implausible to suppose that with so many of the newly-adopted Constitution's drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that document's very first substantive mandate: "All legislative Powers herein granted shall be vested in a Congress of the United States[.]" U.S. Const. Art. I, § 1. And yet that is precisely the reading the government proposes when it insists that a court may empower the executive to exercise power that the legislature has considered yet declined to allow. It is a reading that thoroughly undermines both the legislature's own prerogative to reject a legislative proposal effectively and efficiently (without the need to affirmatively ban the proposed authority) and the more general protection against tyranny that the Founders believed required the careful separation of governmental powers." -- As the power that the legislature "considered yet declined to allow" the judge refers to the existing law, CALEA (Communications Assistance for Law Enforcement Act): -- "it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also" "even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe." -- Another side, according to Reuters: http://www.reuters.com/article/us-apple-encryption-deny-idUSKCN0W22Q0 http://www.reuters.com/article/us-apple-encryption-deny-idUS... "The Justice Department is "disappointed" in Orenstein's ruling and plans to ask a higher judge within the same federal district to review the matter in coming days, a department representative said."
SEJeff 11y ago
I'd actually love to see this one make it to the supreme court, where I have pretty much no doubt, they would reach the exact same conclusion.
- joezydeco 11y ago
  Or, the SCOTUS (currently down to 8 Justices) would deadlock and the ruling would fall back to the lesser court's decision in favor of the government. Forever.
  - Rylinks 11y ago
    A tie in SCOTUS does not create binding precedent. Other circuit courts would be free to disagree, and a later SCOTUS could rule against the government.
  - DrScump 11y ago
    ... for that Circuit only.
  - dragonwriter 11y ago
    > Or, the SCOTUS (currently down to 8 Justices) would deadlock and the ruling would fall back to the lesser court's decision in favor of the government. Forever. No, a Supreme Court deadlock has essentially the same effect as if the case had not been appealed to the Supreme Court; the Court of Appeals decision stands, but no binding precedent (other than the local precedent already created by the Court of Appeals decision) is created. So, its not "forever", even in the limited sense that a Supreme Court decision is "forever".
    - SEJeff 11y ago
      ^ This is the correct answer
  - HelloMcFly 11y ago
    I have a most difficult time believing SCOTUS would deadlock on this issue as it should scratch the "personal property, limited government, narrow interpretation" itch of the conservative justices and the civil rights itch of the liberal justices.
kirykl 11y ago
Why would this stop at smartphones? If the FBI's arguments would be upheld, couldn't the FBI require home manufacturers to build in literal back doors for use only by the government
- msbarnett 11y ago
  In the extreme, the Government's proposed interpretation could be used to require safe manufacturers to build tools for the government to break into safes with, paper shredder manufacturers to build devices to stick shredding back together, drug companies to manufacture lethal injection drugs they did not wish to, or anybody to do anything that a DA thinks will help advance a case, provided that the legislature has not specifically passed a law prohibiting them from doing so. This ruling notes any number of absurdities that this would entail. For instance, if congress passed a law requiring companies to provide aid X, and then unanimously repealed that law, the Government could go right on requiring aid X unless congress explicitly passed a law forbidding aid X.
- lern_too_spel 11y ago
  No, if it's upheld and home manufacturers already have a literal backdoor for use only by themselves, a court can force the home manufacturers to allow the FBI to use them as well for specific investigations. The AWA power to compel an action only works when the party being compelled has some special ability to help on a specific case with probable cause (not future cases), as Apple does with its system update backdoor for the San Bernardino and Brooklyn cases.
  - marcoperaza 11y ago
    It's a shame that you're being downvoted. This is exactly what the situation is.
    - grey-area 11y ago
      It's not exactly the situation as I understand it. Apple, with their current software, do not have a way to access this phone. They'd have to build a special neutered version, update the phone with it, then allow access. That they can do this since they control updates doesn't mean that they have already done it for their own purposes or wish to do it, or should be compelled to build a back door for the government.
GigabyteCoin 11y ago
Isn't the All Writs Act just a red herring in this whole debate? What's preventing the Federal Government from issuing Apple a National Security Letter and forcing them to comply in secrecy? I don't understand how all of a sudden the government is publicly and calmly asking permission to do something digitally when they have been so forceful and demanding in the recent past.
- CPLX 11y ago
  That might be (arguably) relevant in San Bernadino, but would be a serious stretch in a methamphetamine distribution case.
  - GigabyteCoin 11y ago
    >serious stretch How can anyone be sure of that when the issuance and nature of every single NSL remains secret to this day?
- kabdib 11y ago
  That's an incredibly interesting question. Why doesn't the USGov just spam Apple with NSLs? I'm guessing that the USG has done this, and they want to move the "debate" into a more public arena so they can get political muscle into a crypto ban. Yadda yadda terrorism leading to fake compromises and "balance". In an election year. Cynical me expects false flag operations to prop this up further. I hope I'm just being jaded and negative.
- hospes 11y ago
  Perhaps the reason is that they cannot issue NS letters every time they need an access to someone's iPhone, so they are trying to make Apple create for them a tool that they can re-use in all other cases. Edited typo.
- guelo 11y ago
  A NSL is a subpoena, meaning an order to produce information. In these cases Apple does not have the information being sought because it is encrypted on the phones and they don't have the key. The government is trying to use a dubious legal tactic to force Apple to create a hacking tool that does not exist. It's not an order to produce information, it's an order to do forced work.
alblue 11y ago
I've written up the piece for InfoQ here: http://www.infoq.com/news/2016/02/all-writs-denied http://www.infoq.com/news/2016/02/all-writs-denied Basically, the motions in the piece indicate that the relationship with the All Writs Act that was successfully used before are not relevant; because in the prior case, the business property was being used to commit the crime, but in this case, the property was the owner of the accused, not Apple. The Judge also highlighted "in other cases in the country" and had an explicit callback to the founding fathers and the constitution, suggesting that if the All Writs Act allowed the government to compel any American company to do anything it wanted that wasn't explicitly illegal, and therefore any American citizen, could be compelled to do almost anything. Reuters are now reporting this directly, rather than just a link to the court order: http://www.reuters.com/article/us-apple-encryption-deny-idUSKCN0W22Q0 http://www.reuters.com/article/us-apple-encryption-deny-idUS...
- cpayne 11y ago
  Well written. I know we hear a lot of doom and gloom, but I think it's a fantastic time we live in. Not only do we have the transparency of the courts (which is good, but I don't understand it), we have an article summarising it. We then have the author available for comment. I don't have any questions or feedback, but if I did, I feel confident you would respond appropriately. I know we are far from perfect world but the one we have is pretty dam awesome!
  - alblue 11y ago
    Thanks for the kind words :-) I'm happy to answer things as I understand them, but I am not a lawyer.
  - mineshaftgap 11y ago
    Thank you. Doom and apathy are co-conspirators.
- swyman 11y ago
  Great article! Friendly suggestion: in the following sentence, I'd remove "explicitly" because the judge reasons that congressional rejection can take more forms than an explicit legislative ban (ie the comprehensiveness of CALEA combined with no explicit direction on this specific issue would be an implicit rejection). > The Judge disagreed, saying that the All Writs Act cannot be used to compel companies to do things that congress has explicitly rejected
gregshap 11y ago
So if this interpretation sticks, seems like there's a risky but effective new anti-surveillance method in town: 1) Draft law expanding surveillance for criminal cases 2) bring the law for a congressional vote 3) make sure the vote fails -> now you've shut the FBI and others off from access through judiciary writs
- jlgaddis 11y ago
  What happens if you aren't successful at #3 and the vote passes?
  - gregshap 11y ago
    risky!
studentrob 11y ago
It seems likely to me that this case would be referenced in the upcoming San Bernardino decision, but I am not a lawyer. Does anyone know? Does this prop up the chances of that judge ruling in favor of Apple? Could the DOJ try to bring the Brooklyn case in front of the supreme court? What are the next steps we're likely to see?
- uxp 11y ago
  Generally, current litigation doesn't reference other current litigation (mostly because current litigation has not established enough of a "fact" to be referenced), but you can read this statement and see that Orenstein allowed Apple to submit a brief while this case seemed to be going stale in-between the guilty plea of the defendant and his sentencing, precisely because it was being held up in 9 other cases of the "government" (whether that be the FBI in the San Bernardino case, or the DEA in this case, to the plain Chicago PD in another) leveraging the AWA to compel Apple to open this and other phones by some means. I'm also not a lawyer, but I can see how this helps Apple in fighting the AWA used to compel them to unlock or decrypt phones seized as evidence in part of some crime where Apple was not alleged as a perpetrator or coconspirator of the crime.
rdl 11y ago
What happens next -- US DOJ appeals?
ChuckMcM 11y ago
Very nice, and one for the "good guys". Lets hope we can continue in this vein.
jim-greer 11y ago
Best quote from the ruling: "As far as I can discern from the record, Feng did not at any time 'rent, lend, lease, sell, redistribute or sublicense' Apple's software; what he did 'sell' or 'redistribute' was methamphetamine - a course of conduct in which Apple was not involved."
- belovedeagle 11y ago
  Interesting... I thought that was the worst bit, at least in terms of substance. The government had raised the point that Apple [claims to?] own the software on the iPhone, and that they had to take the ill effects of that ownership along with the beneficial. I'm not so sure about that legal argument, but Orenstein decided to ignore it completely and offer humor instead. It was a blemish on an otherwise-excellent analysis, although I can't help but feel that he's put rather a lot of his personal views into this order.
aagha 11y ago
It's times like this that my waning faith in our system is somewhat restored
studentrob 11y ago
This is not the end. The San Bernardino case will be appealed, and somewhere in the midst of that we're going to see new bills from the legislature. One bill, set for release in March, could require encrypted devices to be able to give un-encrypted data to law enforcement. Feinstein says the bill is "coming along ... some people are making it a lot harder than we think it needs to be". An alternate proposal is also on the table from McCaul and Warner, http://www.politico.com/tipsheets/morning-cybersecurity/2016/02/march-is-encryption-bill-month-hackers-going-after-japans-infrastructure-a-mixed-final-2015-tally-212865 http://www.politico.com/tipsheets/morning-cybersecurity/2016...
brandeis 11y ago
I think the technicality in the current case will hinge on the definition of "necessary" and "appropriate" if this Judge's opinion of that drug case is correct. Both from the AWA and then CALEA Id. § 1002(b)(2). "...and the carrier possesses the information necessary to decrypt the communication." To my understanding the way in which the government wants Apple to hinder the security on the iphone is not by breaking the decryption, but by eliminating the limit on entering the code, so that they can then brute force it. This in my opinion falls outside of the strictest sense interpretation of the second statute's definition of necessary. Therefore it also falls outside of the "appropriate" in the AWA. I feel that an issue this large falling under a distinction so small is a bit scary.
aagha 11y ago
It's times like this that my waning confidence in our system is reinforced.
leemalone1967 11y ago
Nobody can force Apple to do what FBI want to. Period.
leemalone1967 11y ago
They can not force Apple to do anything. Period.
- jibalt 11y ago
  Yes, actually, they can. In any case, Apple has said that they will follow what the courts decide, however reluctantly.
- leemalone1967 11y ago
  They can not force Apple if it implies invading the privacy Of Apple customers.
  - leemalone1967 11y ago
    If they allow it, will be opening a can of worms. The FBI can do as they want. Apple is protecting the pravacy of all its customers. Its a violation of privacy do what FBI is asking.
beams_of_light 11y ago
What if the government and Apple (and/or other tech companies) have colluded on this issue, and ARE providing the FBI with the information they need, but publicly fighting what appears to be a winning battle, all so that criminals and terrorists will believe their iPhones are secure while plotting evil?
- jibalt 11y ago
  Sorry, but nothing of any interest would follow from that harebrained speculation being true.
Chefkoochooloo 11y ago
While Apple should assist with the unlocking of iPhones to assist in prosecution of suspected criminals, the idea that the Feds want Apple to make a backdoor program to every single iPhone is terrifying, even if they are required to gain a warrant before using the program. The entire notion of one government agency holding so much data and power is absurd and coercing a company to make the program shouldn't be allowed.
sandworm101 11y ago
This case does not bode well for the CA case. The general consensus amongst lawyers is that this situation, the unlocking scenario, will require either congress or the supreme court to weigh in. Congress is out to lunch for the next year or so. But to get a ruling from the supreme court one needs a controversy. Ideally, that would be two identical cases with different interpretations by different appellate courts. This judge has taken the first step. I suspect the CA judge will go the opposite way, starting the progress up the system towards the supremes.
mmmmmjjjjjj 11y ago
mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm

797 points by coloneltcb 11y ago

Not especially shocking. The Gov'ts proposed theory of the All Writs Act as the legal equivalent of "sudo do whatever I want" was pretty damn tenuous.

taylorwc 11y ago
> sudo do whatever I want What a fantastic way of putting it. Makes the point and good for a chuckle.
- gpvos 11y ago
  Just in case someone doesn't get the reference: https://xkcd.com/149/ https://xkcd.com/149/
  - j_koreth 11y ago
    I think this stands without being a reference
    - banku_brougham 11y ago
      Non-tech people read this site too. What % of the general population knows what sudo is? My auto-correct changes 'sudo' to 'Audi'. The real problem is that the xkcd reference doesn't explain what sudo means.
      - extesy 11y ago
        There's a site dedicated to explaining various xkcd: https://www.explainxkcd.com/wiki/index.php/149:_Sandwich https://www.explainxkcd.com/wiki/index.php/149:_Sandwich
        thesimpsons1022 11y ago
        we shouldn't be explaining something using the xkcd which doesn't illuminate the topic at all and further needs to be explained.
        techabuse 11y ago
        Oh boy. Turtles all the way down.
      - taylorwc 11y ago
        You're right that a tiny portion of the general population would know what sudo is, but surely among HN readers there is a huge base that would understand, or at least grok what it is after a quick search. Not advocating that HN isn't for non-tech-people, just saying that neither the reference nor the xkcd were out of place for this audience.
      - crucialfelix 11y ago
        This is tech site. If you are see something you don't understand, you should just google it. As a tech person I encounter things every day that I don't know about, and I google many of them. Why should "non-tech" people be protected from the chore of googling ? Isn't that why people come here – to encounter things that they don't know about ?
        banku_brougham 11y ago
        Not trying to "protect" anyone. Thing is, even googling sudo doesn't give someone who has never sudo'ed the insight behind the comic. So, yep.
  - runholm 11y ago
    It's not really a reference. It's just the same joke. I am pretty sure I have saw "sudo <real life action>" as a joke around the internet long before xkcd did it.
paulddraper 11y ago
+1 sudo indeed
clamprecht 11y ago
It seems easy to rule out the "do whatever I want interpretation". If this were true, the Constitution becomes unnecessary. This is a contradiction. QED
- dragonwriter 11y ago
  The government's actual interpretation wasn't quite broad enough to allow that dismissal: the proposed interpretation was essentially that AWA allows courts to order anything so long as neither the Constitution nor laws passed by Congress explicitly forbid it.
  - acqq 11y ago
    > AWA allows courts to order anything so long as neither the Constitution nor laws passed by Congress explicitly forbid it. And that interpretation the judge considers absurd: "the government's construction of the AWA produces absurd results in application. If, for example the President sent to Congress a bill explicitly authorizing a court to issue the kind of order the government seeks here, and if every single member of the House and Senate were to vote against the enactment of such a law citing the kinds of data security and personal privacy concerns that Apple now embraces, the government would nevertheless describe the order sought here as permissible because Congress had merely rejected the bill – however emphatically, and however clear its reasons for doing so – rather than affirmatively passing legislation to prohibit the executive branch's proposal. Yet in such circumstances, it would be absurd to posit that the authority the government sought was anything other than obnoxious to the law." And there's the related law in which Congress explicitly didn't oblige the companies: CALEA.
    - ikeboy 11y ago
      Wouldn't the same argument apply to any time congress delegates authority? I.E. They allow some agency to decree certain things with the force of a law. Whatever that agency decides within the bounds of the constitution is law, even if congress debated that point and didn't expressly permit it.
GunboatDiplomat 11y ago
`sudo rm -rf /privacy`

CiPHPerCoder 11y ago

The conclusion is pretty clear. Ultimately, the question to be answered in this matter, and in others like it across the country, is not whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come. For the reasons set forth above, I conclude that it does not. The government's motion is denied. It doesn't answer the question that was on my mind ("Can the FBI force Apple to write and cryptographically sign a less-secure version of their operating system?"), but it's nice to know that the AWA doesn't grant them that capability.

y0y 11y ago
I've seen a lot of doom and gloom about the current state of the US government all around the internet, but I have to say that this kind of thing helps me remain optimistic. A judge is free to make his or her decision without fear of coercion or some fanciful Tom Clancy-esque story unfolding as some people seem to believe things to work. The system may be flawed, but it's not broken yet.
- r00fus 11y ago
  I would feel a lot more confident about the US's overall state of corruption if the defendant in this case weren't the largest capitalized company in the world. Would this case have come to the same result (which is likely to be appealed) if it was say UnluckySmallCo. instead of Apple that was on the receiving end of the government's pressure?
  - AnimalMuppet 11y ago
    If UnluckySmallCo. had created a phone that was used by defendants in nine separate cases, they probably would be big enough to handle it.
    - CiPHPerCoder 11y ago
      Let's look at it from a different angle: What if you were a GNU/Linux distro maintainer and nine defendants had used your OS instead of Windows? Could you be forced to help the FBI?

afarrell 11y ago

It is also worth reading Apple's motion in this case: https://www.documentcloud.org/documents/2722199-5-15-MJ-00451-SP-USA-v-Black-Lexus-IS300.html https://www.documentcloud.org/documents/2722199-5-15-MJ-0045... Actually I just noticed something about the title of the case: USA vs Black Lexus IS300. Is this actually a criminal forfeiture case?

msbarnett 11y ago
That's a motion from a case in California. This ruling is from one in New York. It's confusing because the Goverment has advanced this All Writs theory in 9 different currently ongoing cases to try to get it to stick.
- chimeracoder 11y ago
  > It's confusing because the Goverment has advanced this All Writs theory in 9 different currently ongoing cases to try to get it to stick. The only one I've heard about is the San Bernardino shooter's phone. What are the other eight cases?
  - msbarnett 11y ago
    The New York case this ruling came out of is one of them. This list has all of the ones Apple listed in a filling in this New York case: http://appleinsider.com/articles/16/02/23/in-new-court-filing-apple-cites-9-other-cases-in-which-fbi-asserted-the-all-writs-act http://appleinsider.com/articles/16/02/23/in-new-court-filin...
caf 11y ago
It seems that applications for search warrants are also USA vs <property-to-be-searched> cases.

dmitrygr 11y ago

"As explained below, after reviewing the facts in the record and the parties' arguments,I conclude that none of those factors justifies imposing on Apple the obligation to assist the government's investigation against its will. I therefore deny the motion."

deleted 11y ago

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nickysielicki 11y ago

From the first page, (and the same sentiment is found throughout the whole document) > the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it. Bingo! I've said it on HN since the beginning of this case [1,2,3], and I'll continue to say it. This case is about making backdoor legislation palatable. Don't get caught up in the precedent set by this case, it's more or less inapplicable when Apple (etc.) can't flash the device without effectively wiping it, which is where things are headed. [4] [1]: https://news.ycombinator.com/item?id=11139515 https://news.ycombinator.com/item?id=11139515 [2]: https://news.ycombinator.com/item?id=11139497 https://news.ycombinator.com/item?id=11139497 [3]: https://news.ycombinator.com/item?id=11164617 https://news.ycombinator.com/item?id=11164617 [4]: http://www.cnbc.com/2016/02/24/apple-is-said-to-be-working-on-an-iphone-even-it-cant-hack.html http://www.cnbc.com/2016/02/24/apple-is-said-to-be-working-o...

nikdaheratik 11y ago
Except that if the ruling had gone the other way you could say that this is a way of pursuing <nebulous government intrusion> without going through Congress. The reality is that the people who want to be able to decrypt at will are just pursuing every option available to them.

acqq 11y ago

Note that this is not the San Bernardino shooter case but just the drug case in NY. Still, Judge Orenstein gave some extremely important arguments regarding the All Writs Act (AWA) that the government tries to use: "The plain text of the statute thus confers on all federal courts the authority to issue orders where three requirements are satisfied: 1. issuance of the writ must be "in aid of" the issuing court's jurisdiction; 2. the type of writ requested must be "necessary or appropriate" to provide such aid to the issuing court's jurisdiction; and 3. the issuance of the writ must be "agreeable to the usages and principles of law."" "As set forth below, I conclude that in the circumstances of this case, the government's application does not fully satisfy the statute's threshold requirements: although the government easily satisfies the statute's first two elements, the extraordinary relief it seeks cannot be considered "agreeable to the usages and principles of law." In arguing to the contrary, the government posits a reading of the latter phrase so expansive – and in particular, in such tension with the doctrine of separation of powers – as to cast doubt on the AWA's constitutionality if adopted." In short, he recognized that "All Writs Act" can't mean "we can order anything we want to" to allow (in this case) DEA not following the laws that already exist (which specifically don't prescribe what DEA demands from Apple).

acqq 11y ago
Also revealing, Apple documented to this judge other AWA-based requests made in the last months: "Apple identified nine requests filed in federal courts across the country from October 8, 2015 (the date of the instant Application) through February 9, 2016. Id. at 2. In each, Apple has been ordered under the authority of the AWA (or has been told that an order has been requested or entered) to help the government bypass the passcode security of a total of twelve devices; in each such case in which Apple has actually received a court order, Apple has objected"
Esau 11y ago
And this is the way it should be. Otherwise, we are all deputized slaves to the government.
- acqq 11y ago

deleted 11y ago

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matsur 11y ago

This seems to be the core point here — the US Code is a whitelist, not a blacklist: "The government's position also produces a wholly different kind of absurdity: the idea that the First Congress might so thoroughly undermine fundamental principles of the Constitution that many of its members had personally just helped to write or to ratify. Its preferred reading of the law – which allows a court to confer on the executive branch any investigative authority Congress has decided to withhold, so long as it has not affirmatively outlawed it – would transform the AWA from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress's superior ability to prohibit or preempt. I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction."

acqq 11y ago
And "It is wholly implausible to suppose that with so many of the newly-adopted Constitution's drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that document's very first substantive mandate: "All legislative Powers herein granted shall be vested in a Congress of the United States[.]" U.S. Const. Art. I, § 1. And yet that is precisely the reading the government proposes when it insists that a court may empower the executive to exercise power that the legislature has considered yet declined to allow. It is a reading that thoroughly undermines both the legislature's own prerogative to reject a legislative proposal effectively and efficiently (without the need to affirmatively ban the proposed authority) and the more general protection against tyranny that the Founders believed required the careful separation of governmental powers." -- As the power that the legislature "considered yet declined to allow" the judge refers to the existing law, CALEA (Communications Assistance for Law Enforcement Act): -- "it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also" "even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe." -- Another side, according to Reuters: http://www.reuters.com/article/us-apple-encryption-deny-idUSKCN0W22Q0 http://www.reuters.com/article/us-apple-encryption-deny-idUS... "The Justice Department is "disappointed" in Orenstein's ruling and plans to ask a higher judge within the same federal district to review the matter in coming days, a department representative said."

SEJeff 11y ago

I'd actually love to see this one make it to the supreme court, where I have pretty much no doubt, they would reach the exact same conclusion.

joezydeco 11y ago
Or, the SCOTUS (currently down to 8 Justices) would deadlock and the ruling would fall back to the lesser court's decision in favor of the government. Forever.
- Rylinks 11y ago
  A tie in SCOTUS does not create binding precedent. Other circuit courts would be free to disagree, and a later SCOTUS could rule against the government.
- DrScump 11y ago
  ... for that Circuit only.
- dragonwriter 11y ago
  > Or, the SCOTUS (currently down to 8 Justices) would deadlock and the ruling would fall back to the lesser court's decision in favor of the government. Forever. No, a Supreme Court deadlock has essentially the same effect as if the case had not been appealed to the Supreme Court; the Court of Appeals decision stands, but no binding precedent (other than the local precedent already created by the Court of Appeals decision) is created. So, its not "forever", even in the limited sense that a Supreme Court decision is "forever".
  - SEJeff 11y ago
    ^ This is the correct answer
- HelloMcFly 11y ago
  I have a most difficult time believing SCOTUS would deadlock on this issue as it should scratch the "personal property, limited government, narrow interpretation" itch of the conservative justices and the civil rights itch of the liberal justices.

kirykl 11y ago

Why would this stop at smartphones? If the FBI's arguments would be upheld, couldn't the FBI require home manufacturers to build in literal back doors for use only by the government

msbarnett 11y ago
In the extreme, the Government's proposed interpretation could be used to require safe manufacturers to build tools for the government to break into safes with, paper shredder manufacturers to build devices to stick shredding back together, drug companies to manufacture lethal injection drugs they did not wish to, or anybody to do anything that a DA thinks will help advance a case, provided that the legislature has not specifically passed a law prohibiting them from doing so. This ruling notes any number of absurdities that this would entail. For instance, if congress passed a law requiring companies to provide aid X, and then unanimously repealed that law, the Government could go right on requiring aid X unless congress explicitly passed a law forbidding aid X.
lern_too_spel 11y ago
No, if it's upheld and home manufacturers already have a literal backdoor for use only by themselves, a court can force the home manufacturers to allow the FBI to use them as well for specific investigations. The AWA power to compel an action only works when the party being compelled has some special ability to help on a specific case with probable cause (not future cases), as Apple does with its system update backdoor for the San Bernardino and Brooklyn cases.
- marcoperaza 11y ago
  It's a shame that you're being downvoted. This is exactly what the situation is.
  - grey-area 11y ago
    It's not exactly the situation as I understand it. Apple, with their current software, do not have a way to access this phone. They'd have to build a special neutered version, update the phone with it, then allow access. That they can do this since they control updates doesn't mean that they have already done it for their own purposes or wish to do it, or should be compelled to build a back door for the government.

GigabyteCoin 11y ago

Isn't the All Writs Act just a red herring in this whole debate? What's preventing the Federal Government from issuing Apple a National Security Letter and forcing them to comply in secrecy? I don't understand how all of a sudden the government is publicly and calmly asking permission to do something digitally when they have been so forceful and demanding in the recent past.

CPLX 11y ago
That might be (arguably) relevant in San Bernadino, but would be a serious stretch in a methamphetamine distribution case.
- GigabyteCoin 11y ago
  >serious stretch How can anyone be sure of that when the issuance and nature of every single NSL remains secret to this day?
kabdib 11y ago
That's an incredibly interesting question. Why doesn't the USGov just spam Apple with NSLs? I'm guessing that the USG has done this, and they want to move the "debate" into a more public arena so they can get political muscle into a crypto ban. Yadda yadda terrorism leading to fake compromises and "balance". In an election year. Cynical me expects false flag operations to prop this up further. I hope I'm just being jaded and negative.
hospes 11y ago
Perhaps the reason is that they cannot issue NS letters every time they need an access to someone's iPhone, so they are trying to make Apple create for them a tool that they can re-use in all other cases. Edited typo.
guelo 11y ago
A NSL is a subpoena, meaning an order to produce information. In these cases Apple does not have the information being sought because it is encrypted on the phones and they don't have the key. The government is trying to use a dubious legal tactic to force Apple to create a hacking tool that does not exist. It's not an order to produce information, it's an order to do forced work.

alblue 11y ago

I've written up the piece for InfoQ here: http://www.infoq.com/news/2016/02/all-writs-denied http://www.infoq.com/news/2016/02/all-writs-denied Basically, the motions in the piece indicate that the relationship with the All Writs Act that was successfully used before are not relevant; because in the prior case, the business property was being used to commit the crime, but in this case, the property was the owner of the accused, not Apple. The Judge also highlighted "in other cases in the country" and had an explicit callback to the founding fathers and the constitution, suggesting that if the All Writs Act allowed the government to compel any American company to do anything it wanted that wasn't explicitly illegal, and therefore any American citizen, could be compelled to do almost anything. Reuters are now reporting this directly, rather than just a link to the court order: http://www.reuters.com/article/us-apple-encryption-deny-idUSKCN0W22Q0 http://www.reuters.com/article/us-apple-encryption-deny-idUS...

cpayne 11y ago
Well written. I know we hear a lot of doom and gloom, but I think it's a fantastic time we live in. Not only do we have the transparency of the courts (which is good, but I don't understand it), we have an article summarising it. We then have the author available for comment. I don't have any questions or feedback, but if I did, I feel confident you would respond appropriately. I know we are far from perfect world but the one we have is pretty dam awesome!
- alblue 11y ago
  Thanks for the kind words :-) I'm happy to answer things as I understand them, but I am not a lawyer.
- mineshaftgap 11y ago
  Thank you. Doom and apathy are co-conspirators.
swyman 11y ago
Great article! Friendly suggestion: in the following sentence, I'd remove "explicitly" because the judge reasons that congressional rejection can take more forms than an explicit legislative ban (ie the comprehensiveness of CALEA combined with no explicit direction on this specific issue would be an implicit rejection). > The Judge disagreed, saying that the All Writs Act cannot be used to compel companies to do things that congress has explicitly rejected

gregshap 11y ago

So if this interpretation sticks, seems like there's a risky but effective new anti-surveillance method in town: 1) Draft law expanding surveillance for criminal cases 2) bring the law for a congressional vote 3) make sure the vote fails -> now you've shut the FBI and others off from access through judiciary writs

jlgaddis 11y ago
What happens if you aren't successful at #3 and the vote passes?
- gregshap 11y ago
  risky!

studentrob 11y ago

It seems likely to me that this case would be referenced in the upcoming San Bernardino decision, but I am not a lawyer. Does anyone know? Does this prop up the chances of that judge ruling in favor of Apple? Could the DOJ try to bring the Brooklyn case in front of the supreme court? What are the next steps we're likely to see?

uxp 11y ago
Generally, current litigation doesn't reference other current litigation (mostly because current litigation has not established enough of a "fact" to be referenced), but you can read this statement and see that Orenstein allowed Apple to submit a brief while this case seemed to be going stale in-between the guilty plea of the defendant and his sentencing, precisely because it was being held up in 9 other cases of the "government" (whether that be the FBI in the San Bernardino case, or the DEA in this case, to the plain Chicago PD in another) leveraging the AWA to compel Apple to open this and other phones by some means. I'm also not a lawyer, but I can see how this helps Apple in fighting the AWA used to compel them to unlock or decrypt phones seized as evidence in part of some crime where Apple was not alleged as a perpetrator or coconspirator of the crime.

rdl 11y ago

What happens next -- US DOJ appeals?

ChuckMcM 11y ago

Very nice, and one for the "good guys". Lets hope we can continue in this vein.

jim-greer 11y ago

Best quote from the ruling: "As far as I can discern from the record, Feng did not at any time 'rent, lend, lease, sell, redistribute or sublicense' Apple's software; what he did 'sell' or 'redistribute' was methamphetamine - a course of conduct in which Apple was not involved."

belovedeagle 11y ago
Interesting... I thought that was the worst bit, at least in terms of substance. The government had raised the point that Apple [claims to?] own the software on the iPhone, and that they had to take the ill effects of that ownership along with the beneficial. I'm not so sure about that legal argument, but Orenstein decided to ignore it completely and offer humor instead. It was a blemish on an otherwise-excellent analysis, although I can't help but feel that he's put rather a lot of his personal views into this order.

aagha 11y ago

It's times like this that my waning faith in our system is somewhat restored

studentrob 11y ago

This is not the end. The San Bernardino case will be appealed, and somewhere in the midst of that we're going to see new bills from the legislature. One bill, set for release in March, could require encrypted devices to be able to give un-encrypted data to law enforcement. Feinstein says the bill is "coming along ... some people are making it a lot harder than we think it needs to be". An alternate proposal is also on the table from McCaul and Warner, http://www.politico.com/tipsheets/morning-cybersecurity/2016/02/march-is-encryption-bill-month-hackers-going-after-japans-infrastructure-a-mixed-final-2015-tally-212865 http://www.politico.com/tipsheets/morning-cybersecurity/2016...

brandeis 11y ago

I think the technicality in the current case will hinge on the definition of "necessary" and "appropriate" if this Judge's opinion of that drug case is correct. Both from the AWA and then CALEA Id. § 1002(b)(2). "...and the carrier possesses the information necessary to decrypt the communication." To my understanding the way in which the government wants Apple to hinder the security on the iphone is not by breaking the decryption, but by eliminating the limit on entering the code, so that they can then brute force it. This in my opinion falls outside of the strictest sense interpretation of the second statute's definition of necessary. Therefore it also falls outside of the "appropriate" in the AWA. I feel that an issue this large falling under a distinction so small is a bit scary.

aagha 11y ago

It's times like this that my waning confidence in our system is reinforced.

leemalone1967 11y ago

Nobody can force Apple to do what FBI want to. Period.

leemalone1967 11y ago

They can not force Apple to do anything. Period.

jibalt 11y ago
Yes, actually, they can. In any case, Apple has said that they will follow what the courts decide, however reluctantly.
leemalone1967 11y ago
They can not force Apple if it implies invading the privacy Of Apple customers.
- leemalone1967 11y ago
  If they allow it, will be opening a can of worms. The FBI can do as they want. Apple is protecting the pravacy of all its customers. Its a violation of privacy do what FBI is asking.

beams_of_light 11y ago

What if the government and Apple (and/or other tech companies) have colluded on this issue, and ARE providing the FBI with the information they need, but publicly fighting what appears to be a winning battle, all so that criminals and terrorists will believe their iPhones are secure while plotting evil?

jibalt 11y ago
Sorry, but nothing of any interest would follow from that harebrained speculation being true.

Chefkoochooloo 11y ago

While Apple should assist with the unlocking of iPhones to assist in prosecution of suspected criminals, the idea that the Feds want Apple to make a backdoor program to every single iPhone is terrifying, even if they are required to gain a warrant before using the program. The entire notion of one government agency holding so much data and power is absurd and coercing a company to make the program shouldn't be allowed.

sandworm101 11y ago

This case does not bode well for the CA case. The general consensus amongst lawyers is that this situation, the unlocking scenario, will require either congress or the supreme court to weigh in. Congress is out to lunch for the next year or so. But to get a ruling from the supreme court one needs a controversy. Ideally, that would be two identical cases with different interpretations by different appellate courts. This judge has taken the first step. I suspect the CA judge will go the opposite way, starting the progress up the system towards the supremes.

mmmmmjjjjjj 11y ago

mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmm