4 ms·

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.
    - jessaustin 11y ago
      You're talking about e.g. EPA deciding to regulate a dangerous-but-previously-unregulated chemical. In that case it's reasonable for EPA to declare that it will regulate the chemical. FBI doesn't get to make such declarations with respect to its own investigatory powers.
      - deleted 11y ago
        [deleted]
      - ikeboy 11y ago
        If Congress debates whether they should ban the chemical and decides not to pass anything, does the EPA still have that right? If yes, what's the difference?
        nickodell 11y ago
        When establishing the EPA, Congress wrote a law saying "All dangerous chemicals will be banned. The EPA will define what 'dangerous chemicals' means." (Actually, the first iteration of the EPA just gave grants to local organizations to clean up pollution, but I'm ignoring that for the moment.) 'Is this chemical dangerous?' is a specific question with a specific scientific and medical answer. 'Is this a dangerous use of federal power?' is an inherently subjective question. So, that would be one reason why your example doesn't raise the same constitutional concerns as the FBI's request. Second, being able to ban chemicals is a power that is much more limited than the power to make arbitrary companies do arbitrary things.
        ikeboy 11y ago
        Where in the Writs act or Constitution is an exception made for "dangerous uses"?
        nickodell 11y ago
        Nowhere. However, the Writs act does require that the writ be, "agreeable to the usages and principles of law." Orenstien's point is spot on. There's no act of Congress that prevents the government from seeking a writ to provide execution drugs. If we accept the government's argument that Congress must explicitly deny the request, and the argument that burden must be calculated purely based on financial cost, the only factor that would weigh against a writ for execution drugs is the discretionary factor of closeness.
- kenshaw 11y ago
  Great, so we end up with another executive branch of the government that also has judicial oversight and the ability to prosecute? Rhetoric aside, if the Supreme Court rules in favor of the FBI in this matter, we, the people, have created a branch of government that is both Judge and Jury. How long before they seek to also be Executioner?
rtpg 11y ago
This is super dismissive of the actual legal arguments, and basically preaching to the choir. The gov'ts interpretation is that "If the court issues a search warrant, we can coerce third parties into cooperation." A specific usage of the AWA, which basically says "The courts can coerce people to do things to enforce rulings". This leads to relatively non-controversial things like asking apartment landlords to open doors to the house. The controversy here from a legal standpoint is that what's being asked of Apple is too burdensome. I don't really know the constitutional argument against burden (probably the 10th, limiting the power of federal government), but there seems to be some.
- msbarnett 11y ago
  > The controversy here from a legal standpoint is that what's being asked of Apple is too burdensome. I don't really know the constitutional argument against burden (probably the 10th, limiting the power of federal government), but there seems to be some. There's more to it than that, and I'd argue that the primary controversy in this case, and to an extent even in the San Bernardino case (where the burden is certainly higher than here), burden isn't the primary controversy. Basically, for the AWA to apply there are 3 statutory "tests" that have to be met that are laid out in the AWA itself, and 3 more discretionary "tests" that derive from the Supreme Court ruling in US v New York Telephone Company that control when a judge should exercise their discretion to issue an AWA writ (because these writs are never mandatory). The statutory tests are: 1. Jurisdiction, 2. Necessity and appropriateness to aiding the court's jurisdiction, and 3. Agreeableness to the principals and usages of law. The discretionary tests are: 1. Closesness of the target of the writ to the matter at hand (crime, civil action, etc), 2. Burden the writ imposes, and 3. Necessity (which overlaps the statutory test, but is more broadly interpreted). This ruling doesn't just say the proposed use here of the AWA fails the burden test, it says it fails the 3rd statutory test and ALL the discretionary tests. And this is where I'd argue the real controversy here derives from the 3rd statutory requirement. The Government's argument is, essentially, that any use of the AWA is agreeable with the usages and principles of law, as long as no law specifically forbids that use. This is what is seen as controversially expanding the scope of the AWA to a massive degree. The Government's argument that Judges can only consider what the legislature has explicitly banned, not what the legislature failed to take up (like the fact that congress declined to give police agencies these powers in CALEA), has the effect of turning the AWA from an innocuous "paper the gaps" rule, into a statute of enormous, practically unlimited power. As this ruling points out, if there were a law under consideration by congress that required, say, Drug Manufactures to produce lethal injection drugs, and every single member of congress voted against the law, the government's argument claims that they could still use the AWA to force a company to do exactly that and that it would be completely agreeable with the usages and principals of law, despite clearly thwarting the will of the legislature. Rather than decline to pass laws whose power congress dislikes, congress would actively have to pass laws forbidding every such power, or the AWA could be used to confer it, in the interpretation advanced by the Government here. Essentially the interpretation the Government is advancing would require congress to blacklist everything under the sun, or its all fair game under the AWA. This interpretation, the ruling argues, would probably render the AWA unconstitutional if followed. And that's the controversy. The Obama administration just declined to seek expanded powers encryption-thwarting powers for the FBI via the legislature. The FBI is now undertaking to "find" those same powers in an expansive new interpretation of the AWA. tl;dr it's not just that it's too burdensome, it's that it tortures the meaning of the AWA to assume it applies this broadly to areas the legislature has already declined to grant power, the case is too narrowly connected to Apple, it's not clear that the Government has no other means it could have used to meet the goal, and it's too burdensome

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.
  - jessaustin 11y ago
    You're talking about e.g. EPA deciding to regulate a dangerous-but-previously-unregulated chemical. In that case it's reasonable for EPA to declare that it will regulate the chemical. FBI doesn't get to make such declarations with respect to its own investigatory powers.
    - deleted 11y ago
      [deleted]
    - ikeboy 11y ago
      If Congress debates whether they should ban the chemical and decides not to pass anything, does the EPA still have that right? If yes, what's the difference?
      - nickodell 11y ago
        When establishing the EPA, Congress wrote a law saying "All dangerous chemicals will be banned. The EPA will define what 'dangerous chemicals' means." (Actually, the first iteration of the EPA just gave grants to local organizations to clean up pollution, but I'm ignoring that for the moment.) 'Is this chemical dangerous?' is a specific question with a specific scientific and medical answer. 'Is this a dangerous use of federal power?' is an inherently subjective question. So, that would be one reason why your example doesn't raise the same constitutional concerns as the FBI's request. Second, being able to ban chemicals is a power that is much more limited than the power to make arbitrary companies do arbitrary things.
        ikeboy 11y ago
        Where in the Writs act or Constitution is an exception made for "dangerous uses"?
        nickodell 11y ago
        Nowhere. However, the Writs act does require that the writ be, "agreeable to the usages and principles of law." Orenstien's point is spot on. There's no act of Congress that prevents the government from seeking a writ to provide execution drugs. If we accept the government's argument that Congress must explicitly deny the request, and the argument that burden must be calculated purely based on financial cost, the only factor that would weigh against a writ for execution drugs is the discretionary factor of closeness.
kenshaw 11y ago
Great, so we end up with another executive branch of the government that also has judicial oversight and the ability to prosecute? Rhetoric aside, if the Supreme Court rules in favor of the FBI in this matter, we, the people, have created a branch of government that is both Judge and Jury. How long before they seek to also be Executioner?

rtpg 11y ago

This is super dismissive of the actual legal arguments, and basically preaching to the choir. The gov'ts interpretation is that "If the court issues a search warrant, we can coerce third parties into cooperation." A specific usage of the AWA, which basically says "The courts can coerce people to do things to enforce rulings". This leads to relatively non-controversial things like asking apartment landlords to open doors to the house. The controversy here from a legal standpoint is that what's being asked of Apple is too burdensome. I don't really know the constitutional argument against burden (probably the 10th, limiting the power of federal government), but there seems to be some.

msbarnett 11y ago
> The controversy here from a legal standpoint is that what's being asked of Apple is too burdensome. I don't really know the constitutional argument against burden (probably the 10th, limiting the power of federal government), but there seems to be some. There's more to it than that, and I'd argue that the primary controversy in this case, and to an extent even in the San Bernardino case (where the burden is certainly higher than here), burden isn't the primary controversy. Basically, for the AWA to apply there are 3 statutory "tests" that have to be met that are laid out in the AWA itself, and 3 more discretionary "tests" that derive from the Supreme Court ruling in US v New York Telephone Company that control when a judge should exercise their discretion to issue an AWA writ (because these writs are never mandatory). The statutory tests are: 1. Jurisdiction, 2. Necessity and appropriateness to aiding the court's jurisdiction, and 3. Agreeableness to the principals and usages of law. The discretionary tests are: 1. Closesness of the target of the writ to the matter at hand (crime, civil action, etc), 2. Burden the writ imposes, and 3. Necessity (which overlaps the statutory test, but is more broadly interpreted). This ruling doesn't just say the proposed use here of the AWA fails the burden test, it says it fails the 3rd statutory test and ALL the discretionary tests. And this is where I'd argue the real controversy here derives from the 3rd statutory requirement. The Government's argument is, essentially, that any use of the AWA is agreeable with the usages and principles of law, as long as no law specifically forbids that use. This is what is seen as controversially expanding the scope of the AWA to a massive degree. The Government's argument that Judges can only consider what the legislature has explicitly banned, not what the legislature failed to take up (like the fact that congress declined to give police agencies these powers in CALEA), has the effect of turning the AWA from an innocuous "paper the gaps" rule, into a statute of enormous, practically unlimited power. As this ruling points out, if there were a law under consideration by congress that required, say, Drug Manufactures to produce lethal injection drugs, and every single member of congress voted against the law, the government's argument claims that they could still use the AWA to force a company to do exactly that and that it would be completely agreeable with the usages and principals of law, despite clearly thwarting the will of the legislature. Rather than decline to pass laws whose power congress dislikes, congress would actively have to pass laws forbidding every such power, or the AWA could be used to confer it, in the interpretation advanced by the Government here. Essentially the interpretation the Government is advancing would require congress to blacklist everything under the sun, or its all fair game under the AWA. This interpretation, the ruling argues, would probably render the AWA unconstitutional if followed. And that's the controversy. The Obama administration just declined to seek expanded powers encryption-thwarting powers for the FBI via the legislature. The FBI is now undertaking to "find" those same powers in an expansive new interpretation of the AWA. tl;dr it's not just that it's too burdensome, it's that it tortures the meaning of the AWA to assume it applies this broadly to areas the legislature has already declined to grant power, the case is too narrowly connected to Apple, it's not clear that the Government has no other means it could have used to meet the goal, and it's too burdensome