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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 forc

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.
- thesimon 11y ago
  >meaning an order to produce information. But couldn't they write a modified iOS software themselves (obviously not easy as cake, but for the sake of the argument) and use a NSL to get Apple's key to sign the update? It seems like having the update signed is the issue, not writing the update. Edit: When looking at the scope of the NSL, it seems like only metadata can be requested, not arbitrary stuff. IANAL, but it seems like using an NSL makes no sense.
  - dragonwriter 11y ago
    They could try. Apple would no doubt challenge both the NSL and the associated nondisclosure order (if one were issued with the NSL) in the courts, though. NSLs aren't magic.
    - colinbartlett 11y ago
      Who's to say they haven't already tried actually? From what I understand, an NSL could be presented and it's validity argued but it would never be presented in an open court.
      - dragonwriter 11y ago
        > From what I understand, an NSL could be presented and it's validity argued but it would never be presented in an open court. Both the validity of the NSL and the application of a nondisclosure ("gag") order to an NSL (not all NSLs are inherently gag-ordered) are reviewable by court, and gag orders have been struck down by courts. So its not at all the case that an NSL would never be discussed in open court. Still, its impossible to say what NSLs have been issued with gag orders that haven't been struck down, since those particular orders would not be publicly disclosed.
    - thephyber 11y ago
      They are pretty close to magic. I've only ever heard of one case where an NSL was challenged in court. From what I remember, the NSL comes with a gag order which prevents even the council of the recipient from knowing about the issue.
avs733 11y ago
I would suspect that they are worried Apple would challenge and potentially win against the NSL...
- GigabyteCoin 11y ago
  Has anyone ever successfully done so? I thought the sheer nature of an NSL (not even being allowed to tell your wife or lawyer about it) made that route impossible.
  - avs733 11y ago
    Yes people have, and they won [1]. The Patriot Act tried really hard to walk the line between disallowing counsel and making the retaining of counsel extremely difficult... [1] https://www.eff.org/cases/re-matter-2011-national-security-letter https://www.eff.org/cases/re-matter-2011-national-security-l...
hsod 11y ago
Maybe NSLs aren't as powerful or as easy to produce as we think
- sumedh 11y ago
  or maybe Apple is powerful
  - thephyber 11y ago
    Or maybe Apple has a substantially reasonable argument and is willing to spend the resources on sending it to court.
dragonwriter 11y ago
> Isn't the All Writs Act just a red herring in this whole debate? No, since it is the actual legal authority that the government is actually seeking to use. > What's preventing the Federal Government from issuing Apple a National Security Letter and forcing them to comply in secrecy? There are legal bounds on NSLs, and NSLs are judicially reviewable and may be altered or voided by the courts if they are "unreasonable, oppressive, or otherwise unlawful". Further, the nondisclosure orders that can be tied to NSLs (the "comply in secrecy" part) are limited (by Congressional action after the earlier broad use was struck down as unconstitutional) and are themselves judicially reviewable, so NSLs aren't a "get out of judicial review free" card, nor are they a "get secrecy without review free" card.

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.

thesimon 11y ago
>meaning an order to produce information. But couldn't they write a modified iOS software themselves (obviously not easy as cake, but for the sake of the argument) and use a NSL to get Apple's key to sign the update? It seems like having the update signed is the issue, not writing the update. Edit: When looking at the scope of the NSL, it seems like only metadata can be requested, not arbitrary stuff. IANAL, but it seems like using an NSL makes no sense.
- dragonwriter 11y ago
  They could try. Apple would no doubt challenge both the NSL and the associated nondisclosure order (if one were issued with the NSL) in the courts, though. NSLs aren't magic.
  - colinbartlett 11y ago
    Who's to say they haven't already tried actually? From what I understand, an NSL could be presented and it's validity argued but it would never be presented in an open court.
    - dragonwriter 11y ago
      > From what I understand, an NSL could be presented and it's validity argued but it would never be presented in an open court. Both the validity of the NSL and the application of a nondisclosure ("gag") order to an NSL (not all NSLs are inherently gag-ordered) are reviewable by court, and gag orders have been struck down by courts. So its not at all the case that an NSL would never be discussed in open court. Still, its impossible to say what NSLs have been issued with gag orders that haven't been struck down, since those particular orders would not be publicly disclosed.
  - thephyber 11y ago
    They are pretty close to magic. I've only ever heard of one case where an NSL was challenged in court. From what I remember, the NSL comes with a gag order which prevents even the council of the recipient from knowing about the issue.

avs733 11y ago

I would suspect that they are worried Apple would challenge and potentially win against the NSL...

GigabyteCoin 11y ago
Has anyone ever successfully done so? I thought the sheer nature of an NSL (not even being allowed to tell your wife or lawyer about it) made that route impossible.
- avs733 11y ago
  Yes people have, and they won [1]. The Patriot Act tried really hard to walk the line between disallowing counsel and making the retaining of counsel extremely difficult... [1] https://www.eff.org/cases/re-matter-2011-national-security-letter https://www.eff.org/cases/re-matter-2011-national-security-l...

hsod 11y ago

Maybe NSLs aren't as powerful or as easy to produce as we think

sumedh 11y ago
or maybe Apple is powerful
- thephyber 11y ago
  Or maybe Apple has a substantially reasonable argument and is willing to spend the resources on sending it to court.

dragonwriter 11y ago

> Isn't the All Writs Act just a red herring in this whole debate? No, since it is the actual legal authority that the government is actually seeking to use. > What's preventing the Federal Government from issuing Apple a National Security Letter and forcing them to comply in secrecy? There are legal bounds on NSLs, and NSLs are judicially reviewable and may be altered or voided by the courts if they are "unreasonable, oppressive, or otherwise unlawful". Further, the nondisclosure orders that can be tied to NSLs (the "comply in secrecy" part) are limited (by Congressional action after the earlier broad use was struck down as unconstitutional) and are themselves judicially reviewable, so NSLs aren't a "get out of judicial review free" card, nor are they a "get secrecy without review free" card.