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Taking this further down the rabbit hole: Suppose that only about 5 people can do what the FBI wants done. Suppose all 5 refuse, to the point of quitting Apple

Taking this further down the rabbit hole: Suppose that only about 5 people can do what the FBI wants done. Suppose all 5 refuse, to the point of quitting Apple. Does the FBI now compel them to return to Apple and write the software or go to jail? And what if one of those engineers says that he doesn't actually know how to do it; Apple only thought he could, but he actually can't. Now we get into territory of proving competency and capability.

jacquesm 11y ago
You're in the territory of outright slavery. That would be a new low on all fronts.
- peteretep 11y ago
  There seem to be a whole bunch of people waving around odd ideas. The idea that this would be a new low is ridiculous if one takes the time to consider conscription. If you don't like that the government can coerce you (conscription, work in jail, contempt of court, eminent domain, etc) then rally against those laws, rather than the court using established powers
  - jacquesm 11y ago
    > There seem to be a whole bunch of people waving around odd ideas. No, it's not an 'odd idea'. The fact that the government can coerce you has lots of limits placed on it. Conscription and the draft have been abolished in most places in the developed world, contempt of court may get you jailed but will not - and can not - be used to force you to create something and eminent domain can only be used to take something away from you. So yes, this would be a new low, it would mean that ordinary citizens that have broken no laws can be forced to create something that does not currently exist against their express desire (and maybe even against their capability, how do you even begin to check if someone should be able to do something). It would definitely be a new low. All the things you pulled into it have nothing to do with the matter at hand, those are other things that you may or may not agree with but they are not the same as being ordered by a judge to perform a job that you have no desire to if you yourself are not guilty of breaking any laws. It would be an abuse of power that to me is unprecedented in any modern society.
    - peteretep 11y ago
      > Conscription and the draft have been abolished in > most places in the developed world But not America, the topic under discussion, so what's your point? > contempt of court may get you jailed but will not - > and can not - be used to force you to create something That is factually incorrect. There are plenty of counter-examples. One I can remember getting plenty of news coverage is: http://www.nbcnews.com/id/17598441/ns/us_news-weird_news/t/maybe-we-could-try-schools/ http://www.nbcnews.com/id/17598441/ns/us_news-weird_news/t/m... > eminent domain can only be used to take something away > from you ... it was given as an example of coercive power of governments. > it would mean that ordinary citizens that have broken no > laws can be forced to create something that does not > currently exist against their express desire Only if you ignore conscription, which is alive and well in the US (Selective Service), and the counter-examples where contempt of court is used to compel people to "create" something.
      - jacquesm 11y ago
        The US uses an all-volunteer force. Selective service is a back-up plan that has not been used. > That is factually incorrect. There are plenty of counter-examples. One I can remember getting plenty of news coverage is: > http://www.nbcnews.com/id/17598441/ns/us_news-weird_news/t/maybe-we-could-try-schools/ http://www.nbcnews.com/id/17598441/ns/us_news-weird_news/t/m... It's in 'weird news' for a reason, it's not there because this is the normal state of things. Yes, there are idiot judges, and yes, the system is broken to the point where you have no recourse. But to use that as examples to prove that the whole system is broken is reaching. > Only if you ignore conscription, which is alive and well in the US (Selective Service), and the counter-examples where contempt of court is used to compel people to "create" something. Neither of which prove that you could use either of those mechanisms to make a computer programmer create a piece of software, which was 'the topic under discussion', so what's your point? That the US is a crazy country? That some judges are crazy? That you ought to place some checks on Judges power? Or that you actually feel that any of the examples above would be enough to prove to any person reading this that a judge will order a person (not Apple, the company) to create some intellectual property or be jailed if they don't?
  - optforfon 11y ago
    - people have protested extensively when there was a draft - as far as I understand, unlike in Russia or some place you actually aren't forced to work in jail. It's voluntary - they do it because they get paid and get extra benefits - no eminent domain would be pretty insane... you wouldn't have highways or railways etc. without it... since it's been abused in the past - but it has it's place Forcing people to work for the court does seems like a weird thing though. The whole "contempt of court" is a bit arbitrary (like you can be jailed indefinitely .. based on the decision of just a judge?) and just hasn't really been abused till now
    - jacquesm 11y ago
      > just hasn't really been abused till now It has been abused, plenty of times. But not in the manner the OP suggests.
    - peteretep 11y ago
      > people have protested extensively when there was a > draft I agree. But so what? It's a criminal offense to not register with the Selective Service System to this day, a system that exists primarily to facilitate conscription. > as far as I understand [snip] The 13th amendment explicitly allows for slavery for convicted criminals, and that's the basis for jail work. Wikipedia has an article about "Penal labor in the United States". > no eminent domain would be pretty insane I agree, but I also think that about "no conscription" and "no contempt of court". I have no strong feelings either way on penal labour. I think the US Court compelling a company to do something is probably a right the court already has, but that's sort of what Apple's case is about, right? > Forcing people to work for the court does > seems like a weird thing though And this brings me back to the original point. In the context of conscription, penal labour, corporate personhood, eminent domain, and all the rest of the circus, it doesn't seem especially weird to me. It seems like a rarely used but existing right. What it's absolutely not is some kind of "new low".
- geofft 11y ago
  Lavabit's amicus brief explicitly argues that interpreting the All Writs Act the way the government is trying to interpret it is prohibited by the Thirteenth Amendment.
  - zaroth 11y ago
    I think Lavabit wasn't about All Writs, rather it was a simple pen/trace order? Lavabit's problem was that they actually had access to the data, so they were capable of providing records and they didn't provide them. Then pen/trace laws require cloud email providers to provide this data to LE upon authorized request, and case law does not really support payment for hours expended to implement any data collection solution. Demanding the SSL key in order to plug in their own packet capture (and we must presume appropriate filtering, yeah right) was a -- 'if you can't give us realtime feeds, we can get one ourself'. So overall I think there are a lot of stark differences between Lavabit and Apple's case, thankfully. Apple is on much stronger legal footing. The corollary is iCloud and Apple has long since provided everything they had there, and there was no question they were required to do it.
    - nitrogen 11y ago
      It looks like Lavabit filed an amicus/"friend of the court" brief in the Apple case: http://techcrunch.com/2016/03/07/apple-vs-fbi-lavabit-warns-fbis-extraordinary-action-may-drive-us-businesses-offshore/ http://techcrunch.com/2016/03/07/apple-vs-fbi-lavabit-warns-... Despite the differences in the two cases, it makes sense that Lavabit would want to help defend Apple's position.
      - jacquesm 11y ago
        As nice as it is to have the guy stand up for Apple I don't think that from a practical point of view there is anything that he could say that would make a difference.
        nitrogen 11y ago
        I'm not a lawyer, but as I understand US courts from reading Groklaw and HN and Wikipedia, the arguments put forward in friend-of-the-court briefs can still be helpful to judges who may want to rule a certain way, but don't know all of the possible arguments they could use. There's only so much time they and their staff have to do research, so members of an industry and their legal representatives can contribute if the judges are on the fence or just looking for arguments.
- madaxe_again 11y ago
  It's debatable that slavery was ever actually abolished - it was just formalised, given a new brand, and life went on. If you are the subject of a state, you do not have any rights beyond those which they choose to grant you - and their ultimate backstop and means of control is the threat of violence against the person. It is illegal to be stateless - you must be the possession of a state. Now consider how slavery is defined. The slave-owners just got bigger.
caf 11y ago
Well, if you can draft people to go over to Vietnam and be shot at by the NVA...
- Tloewald 11y ago
  But that wasn't relying on the All Writs Act. I.e. "because the court wants you to do X and there's no specific rule that says whether you can force someone to do X"
- pdkl95 11y ago
  I just mentioned how this could be interpreted as a draft to my mother who grew up watching the Vietnam draft, and she immediately brought up an interesting question: "Can you be a conscientious objector?" Given that nobody is being put in a position where they might have to use deadly force, the usual pacifist or religious arguments don't apply. While suspect it would be hard to extend the concept to the orders given to Apple, the fact that the engineers involved would even consider resignation make it clear how strongly they object to the order.
  - sp_ 11y ago
    I'm not saying I'm a conscientious objector, but I write a whole lotta bugs under stress conditions. This may take a while ...
  - eximius 11y ago
    I don't think you can 'conscientiously object' to any law you want, so no. Though I probably would anyway. - I'd like to think. It's hard to really know.
  - peteretep 11y ago
    You need to prove your conscientious objections to a court. Unless you've got an existing history of privacy activism, that's going to be a challenge.
    - BWStearns 11y ago
cortesoft 11y ago
Or, lets say they complete the task... and it doesn't work. Then what?
- harryh 11y ago
  Then they explain why it doesn't work to a judge and the judge decides if it doesn't work for a good reason or if it doesn't work because someone intentionally screwed it up. If it was for a good reason then welp. Sometimes shit doesn't work. Oh well. If they intentionally screwed it up then they could be found in contempt of court and fined and/or jailed. In either case the would be asked to try again if that was feasible.
  - hysan 11y ago
    But how would a judge have the technical know-how to make that determination? If the answer is to have security experts listen in an make the call, would that even be legal since one of the requirements is to allow Apple to keep this in-house for fear of leaking said code? One last final question, if they do force the engineers to come in and explain themselves over and over to the government's satisfaction, that will increase the time commitment from key members of Apple. At what point would the questioning push the original request into "unreasonable burden" territory which would counter the All Writs' Act's own requirement?
    - harryh 11y ago
      Our legal system is asked to make findings of fact all the time on technical matters. This would be just like any of the rest of those. Witnesses could be questioned. Expert testimony could be delivered. Etc. I understand that it's a common viewpoint on HN that the courts are ill equipped to make these determinations. Personally I think that viewpoint is vastly overstated, but that's a debate for another day. As to your question about "unreasonable burden", Apple made something like 50 billion dollars in profit last year. The burden is going to have to get pretty high before it starts to get unreasonable. A couple of hours (or dozens of hours, or hundreds of hours) isn't going to even begin to get there.
harryh 11y ago
There are a lot more than 5 people who can do what the FBI wants done. Your hypothetical doesn't really seem all that relevant.
- mabbo 11y ago
  I'm not sure you understand the word 'hypothetical'. The point is to explore the idea.
- beedogs 11y ago
  So, what's next? Does the government round up coders they think are capable and force them to program?
  - harryh 11y ago
    My point is that there is no need to round up anyone. There are plenty of coders who are happy to do the job in return for a fair salary.
joesmo 11y ago
If a password is considered testimony and protected by the 5th Amendment, software also appears to be testimony and covered by the same. If not, then software is just speech and protected by the 1st Amendment. Not speaking is then a valid choice seeing as to how this is not testimony and one is not compelled to speak by the court. But this is just theoretical...
- seanp2k2 11y ago
  Since corporations are people, they should be able to plead the 5th as well.
  - harryh 11y ago
    Sure, but in this case Apple isn't being accused of anything so the 5th amendment doesn't apply.
    - joesmo 11y ago
      "nor shall be compelled in any criminal case to be a witness against himself" (https://www.law.cornell.edu/wex/fifth_amendment https://www.law.cornell.edu/wex/fifth_amendment) This is a criminal case, however. It would apply to real people, but likely does not apply to corporations regardless of rulings treating corporations as people for other purpose. I imagine the Apple lawyers would have had it as part of their defense strategy if it did.
      - rcthompson 11y ago
        No one is asking Apple to testify against itself.
atonse 11y ago
I don't know how that would work. The filing compels Apple to follow the order, and doesn't name any engineers.
studentrob 11y ago
They could be fined hundreds of thousands daily for refusing to act. We recently found out this happened to Yahoo in 2008 [1] via the FISA court. Apple shareholders wouldn't like that. I'm pretty sure Tim Cook and his lawyer mean it when they say they will comply with the law. Apple engineers need not worry so much about quitting their jobs over this. If I were there I would stick with Tim Cook. Consider, If Apple loses this case, this becomes a gigantic public debate where we scramble to enact legislation that removes this power from the government. If Apple wins this case, and the government pursues anti-encryption laws, this becomes a gigantic public debate. If the case is delayed for 2 years and goes to the supreme court, this becomes a gigantic public debate. Regardless, since this is in the public sphere, whether-or-not-we-put-back-doors-in-phones is going to become a gigantic public debate. The only way it doesn't become a big debate is if Obama comes out and says he's been informed on the issue and now realizes encryption in our phones is, on balance, a good thing. [1] http://www.theguardian.com/world/2014/sep/11/yahoo-nsa-lawsuit-documents-fine-user-data-refusal http://www.theguardian.com/world/2014/sep/11/yahoo-nsa-lawsu...
- enraged_camel 11y ago
  I'm not seeing any sort of "gigantic public debate." Sure, it looks that way from within our tech bubble, but let's be real: the overwhelming majority of people in the United States do not give a shit and could not care less. And among the remaining small minority, encryption is way down on the list of issues they care about and choose to spend time and mental energy on. Further complicating things is the fact that this is a complex topic and most people (including almost all lawmakers and law enforcement agencies) are too ignorant to understand the important nuances, and they have no interest in changing that because, frankly, encryption is hard.
  - peteretep 11y ago
    When you look at how well protected Americans health records are, and how judges have said a search of your person doesn't extend to your phone, I think you are entirely wrong to suggest this doesn't extend beyond the tech industry.
gpm 11y ago
There are several factors that must be satisfied for the AWA to apply, even in the FBIs interpretations. One of them is that they have to be closely connected to the case. The arguments for Apple not being far removed are that they license the software, that they designed created and sold the phone, and so on. Most of the don't apply to the individual engineers, so they probably can't be compelled even if the court finds that Apple can. Another is that it can be too burdensome, and part of the burdensome analysis is if it is "offensive" to them. Considering they quit their jobs over this the court would almost certainly find that it was too burdensome, even if the court doesn't find it is too burdensome to compel Apple.
mindcrime 11y ago
does the FBI now compel them to return to Apple and write the software or go to jail? I can't imagine any way in hell that would fly. The only remotely conceivable path to doing something like that would be to have Congress implement a draft, and draft them into the military. Anything else would almost certainly violate the 13th and/or 10th Amendments to the Constitution. And the draft thing is probably a stretch as well, especially in the absence of a declaration of war. Then again, I never put it past the US government to try anything, no matter how illegal it is.
- cubano 11y ago
  I sure can, and fully expect it to eventually happen, unfortunately. The sad part is, As Tim Cook said, all this will do is push the bad guys to use an encryption app from somewhere else. I have a good deal of experience in the US criminal justice system, and the one thing everyone I've met and done time with inside the system, from bank robbers to drug dealers to murderers say is, in the end, "They (the courts and prosecutors) Do What They Want" In fact its such a common saying, its almost a running joke inside.
  - kelseydh 11y ago
    Unless you can afford good lawyers to put on a good defense. Then you get a Netflix show.
    - cubano 11y ago
      Yes I will agree to that, no doubt, and its a very good point. I was definitely talking at the Public Defender level.
    - mindcrime 11y ago
      These Apple engineers will probably be able to afford pretty good lawyers. Heck, some good ones might offer to do this pro-bono, just because it could be a reputation / career maker.
citizensixteen 11y ago
Or, lets say they 'accidentally' brick the phone whilst completing the said task. Then what?
kbart 11y ago
""Suppose that only about 5 people can do what the FBI wants done." Maybe 5 people now can do that, but give a smart programmer (I'm sure Apple has more than a bunch of those) source code and I'm sure he will figure how to do what government requests in max few weeks time. It's not a rocket science.
- zaphar 11y ago
  I'm a pretty decent engineer. Give me the source code and I guarantee that the first month will be almost entirely figuring out what it does and where it does it. IOS is a and complex system. There will be a LOT of source code. Just figuring out which parts actually matter will be a challenge. Add in that I'm probably not super enthusiastic about the task and that month could end up being two months. And the end result due to unfamiliarity and stress has a non-zero chance of messing up and accidentally wiping the phone anyway. Notice I didn't use quotes there. You would need some significant qa resources to ensure that I didn't mess anything up. Or maybe I'm wrong and there is a clearly marked single easy place to make all the changes that Apple has requested to make and there are already unit tests that verify it does something it wasn't originally designed to do. Then sure a few weeks time is all it will take. But Apple estimated 6 months for trained familiar engineers. Anyone else and we could be looking at close to a year.
da1 11y ago
This is actually very simple. The state can just harass them into compliance. Tools at the state's disposal include but are not limited to: #Legal: * Judge orders them to comply, if they refuse they can be considered to be in contempt and incarcerated for a de facto arbitrary period of time at the judge's discretion (vide https://en.wikipedia.org/wiki/H._Beatty_Chadwick https://en.wikipedia.org/wiki/H._Beatty_Chadwick incarcerated for contempt for 14 years just because the judge suspected he had funds that apparently he didn't have, also Terrell Geiger http://articles.chicagotribune.com/2011-10-07/news/ct-met-long-sentence-20111007_1_appeals-court-witness-murder-case http://articles.chicagotribune.com/2011-10-07/news/ct-met-lo...) * Civil forfeiture. The state can just de facto steal every single item those people have and leave them unable to fight that in court (not that it would make much difference) * Involuntary commitment. They can just be committed into a psychiatric institution where they can be drugged against their will and even tortured. This can be extended to an arbitrarily long period of time * They can have their children taken away * IRS can just accuse them of an astronomical tax debt, take all of their possessions and leave them effectively unable to get legal representation (not that it would make much difference) #"Illegal": * Just detain them in a secret facility and do with them as they dam well please TLDR: The state does with you what it damn well pleases and there's nothing you can really do about it. Granted this usually doesn't happen but that's just because the stakes usually aren't that high.
- tallanvor 11y ago
  What? Yes, a judge could hold them in contempt and jail them for some time. That's the only legal option. It's possible they could seize some assets as part of the contempt charge, but there are already plenty of legal groups that would jump at the opportunity to represent them pro bono. The other suggestions you offer are, to be blunt, those of a conspiracy nut.
  - da1 11y ago
    > Yes, a judge could hold them in contempt and jail them for some time. Not some time, there's no limit. It can be extended arbitrarily. All the others points I made in the legal section are indeed legal and have been used in the past though they are indeed unusual.
madaxe_again 11y ago
They'll go to jail. That's the cost of resistance in a totalitarian society.
- s_q_b 11y ago
  You do go to jail, usually just court house holding, for contempt of court. That doesn't mean your due process rights disappear. You can challenge the warrant and the applicability of the All Writs Act all the way to SCOTUS. You can even still file a writ of Habeas Corpus. You can even say that you forgot how to make the modifications. The onus is on the DOJ to prove you haven't. Awfully hard to prove what's in a man's head. You could even argue that there's potential criminal liability (e.g. state wiretap laws) in your assistance, and invoke the Fifth Amendment. It's also awfully hard to prove that a man has definitively not committed a crime. Best and most commonly, you can convince the judge that as a matter of conscience there is no amount of time in jail that will convince you to comply with the court's order. Thus holding you in custody serves no judicial purpose, and you are free to go. This may be one where going to jail out of protest is necessary. I say that as someone who faced felony charges that were wholly fabricated, and was offered deal after deal, but I told them I would never take any deal because it wasn't right. I've never forgotten the look I got in response on the prosecutor's face. I've got a feeling, however, that the FBI has made a grave PR mistake here. People have such a personal connection to Apple. A huge portion of the powerful population holds considers their iPhones their most significant inanimate posession. Holding the makers of these devices indefinitely in a jail cell, without trial, might finally connect the American populace to the fact that they have just witnessed the largest scandal since... probably post-Vietnam. This is a moment that where history turns on the decisions of a few. And people have been known to sacrifice far more than time in U.S. prison for ideals far less worthy. If the warrant is upheld, it will be a very individual decision whether to comply. Resistance has power, even under far more hostile governments than ours. I'd like to think I wouldn't. But truly I don't think anyone can really know that until it's real. -------- If anybody from Apple happens to read this: You are already naked. There is no reason not to follow your heart. - Jobs
  - madaxe_again 11y ago
Shivetya 11y ago
they could likely force Apple to hire the engineers required even to the point of designated engineers of the government's choosing. The damage that would be done to Apple worldwide would be inestimable
pdabbadabba 11y ago
There's really no question here. If the engineers refuse to comply with the court order the court can hold them in contempt. This means possible fines or jail time. This is old territory, really. Courts have been ordering people to do things under the All Writs Act (including skilled labor) since it was first enacted more than 200 years ago. (The government's brief has some examples, starting on page 17. http://www.wired.com/wp-content/uploads/2016/03/2016.03.10-149-Gov-Reply-ISO-Mot-to-Compel-Opp-to-Apple-Mot-to-Vacate.pdf http://www.wired.com/wp-content/uploads/2016/03/2016.03.10-1...) If an employee claimed he or she did not have the skills to comply with he order then, yes, there could be some sort of hearing to determine whether this was true. But establishing the requisite level of competence probably would not be as hard as you think.
Justsignedup 11y ago
What if now developers start quitting en-mass. Developers refuse to join apple because they would be required to do something morally objectionable to them. Ah who am I kidding, there's always a dude willing to give away his baby's kidney for money. Systems that screw people over are built by humans.
coroutines 11y ago
Apple absolutely needs to comply with the FBI's request. And then give the same capabilities to the governments of every country they do business in. Our politicians might actually fight for our interests in digital privacy/security if theirs is directly threatened by the governments of China, Iran, North Korea, and Russia. If our government needs this to do lawful search and seizure, so do all these others. I'm tired of our gov acting like they're above reproach and somehow more deserving than any other naive government. History has shown they can't protect us from terrorists 100% of the time, and it shouldn't come at the expense of our civil liberties - at the expense of the principles and detracting from the identity of what makes us American. They can't even protect the information of people who elect to share their privacy with the gov (OPM breach/leak of which I was a victim). They shouldn't have the ability to violate the security of [realistically] billions of phones. It's absurdly overreaching and a massive abuse of the authority we "give" them. Caveat: Not complying and this other plan of action would both upset stockholders.

jacquesm 11y ago

You're in the territory of outright slavery. That would be a new low on all fronts.

peteretep 11y ago
There seem to be a whole bunch of people waving around odd ideas. The idea that this would be a new low is ridiculous if one takes the time to consider conscription. If you don't like that the government can coerce you (conscription, work in jail, contempt of court, eminent domain, etc) then rally against those laws, rather than the court using established powers
- jacquesm 11y ago
  > There seem to be a whole bunch of people waving around odd ideas. No, it's not an 'odd idea'. The fact that the government can coerce you has lots of limits placed on it. Conscription and the draft have been abolished in most places in the developed world, contempt of court may get you jailed but will not - and can not - be used to force you to create something and eminent domain can only be used to take something away from you. So yes, this would be a new low, it would mean that ordinary citizens that have broken no laws can be forced to create something that does not currently exist against their express desire (and maybe even against their capability, how do you even begin to check if someone should be able to do something). It would definitely be a new low. All the things you pulled into it have nothing to do with the matter at hand, those are other things that you may or may not agree with but they are not the same as being ordered by a judge to perform a job that you have no desire to if you yourself are not guilty of breaking any laws. It would be an abuse of power that to me is unprecedented in any modern society.
  - peteretep 11y ago
    > Conscription and the draft have been abolished in > most places in the developed world But not America, the topic under discussion, so what's your point? > contempt of court may get you jailed but will not - > and can not - be used to force you to create something That is factually incorrect. There are plenty of counter-examples. One I can remember getting plenty of news coverage is: http://www.nbcnews.com/id/17598441/ns/us_news-weird_news/t/maybe-we-could-try-schools/ http://www.nbcnews.com/id/17598441/ns/us_news-weird_news/t/m... > eminent domain can only be used to take something away > from you ... it was given as an example of coercive power of governments. > it would mean that ordinary citizens that have broken no > laws can be forced to create something that does not > currently exist against their express desire Only if you ignore conscription, which is alive and well in the US (Selective Service), and the counter-examples where contempt of court is used to compel people to "create" something.
    - jacquesm 11y ago
      The US uses an all-volunteer force. Selective service is a back-up plan that has not been used. > That is factually incorrect. There are plenty of counter-examples. One I can remember getting plenty of news coverage is: > http://www.nbcnews.com/id/17598441/ns/us_news-weird_news/t/maybe-we-could-try-schools/ http://www.nbcnews.com/id/17598441/ns/us_news-weird_news/t/m... It's in 'weird news' for a reason, it's not there because this is the normal state of things. Yes, there are idiot judges, and yes, the system is broken to the point where you have no recourse. But to use that as examples to prove that the whole system is broken is reaching. > Only if you ignore conscription, which is alive and well in the US (Selective Service), and the counter-examples where contempt of court is used to compel people to "create" something. Neither of which prove that you could use either of those mechanisms to make a computer programmer create a piece of software, which was 'the topic under discussion', so what's your point? That the US is a crazy country? That some judges are crazy? That you ought to place some checks on Judges power? Or that you actually feel that any of the examples above would be enough to prove to any person reading this that a judge will order a person (not Apple, the company) to create some intellectual property or be jailed if they don't?
- optforfon 11y ago
  - people have protested extensively when there was a draft - as far as I understand, unlike in Russia or some place you actually aren't forced to work in jail. It's voluntary - they do it because they get paid and get extra benefits - no eminent domain would be pretty insane... you wouldn't have highways or railways etc. without it... since it's been abused in the past - but it has it's place Forcing people to work for the court does seems like a weird thing though. The whole "contempt of court" is a bit arbitrary (like you can be jailed indefinitely .. based on the decision of just a judge?) and just hasn't really been abused till now
  - jacquesm 11y ago
    > just hasn't really been abused till now It has been abused, plenty of times. But not in the manner the OP suggests.
  - peteretep 11y ago
    > people have protested extensively when there was a > draft I agree. But so what? It's a criminal offense to not register with the Selective Service System to this day, a system that exists primarily to facilitate conscription. > as far as I understand [snip] The 13th amendment explicitly allows for slavery for convicted criminals, and that's the basis for jail work. Wikipedia has an article about "Penal labor in the United States". > no eminent domain would be pretty insane I agree, but I also think that about "no conscription" and "no contempt of court". I have no strong feelings either way on penal labour. I think the US Court compelling a company to do something is probably a right the court already has, but that's sort of what Apple's case is about, right? > Forcing people to work for the court does > seems like a weird thing though And this brings me back to the original point. In the context of conscription, penal labour, corporate personhood, eminent domain, and all the rest of the circus, it doesn't seem especially weird to me. It seems like a rarely used but existing right. What it's absolutely not is some kind of "new low".
geofft 11y ago
Lavabit's amicus brief explicitly argues that interpreting the All Writs Act the way the government is trying to interpret it is prohibited by the Thirteenth Amendment.
- zaroth 11y ago
  I think Lavabit wasn't about All Writs, rather it was a simple pen/trace order? Lavabit's problem was that they actually had access to the data, so they were capable of providing records and they didn't provide them. Then pen/trace laws require cloud email providers to provide this data to LE upon authorized request, and case law does not really support payment for hours expended to implement any data collection solution. Demanding the SSL key in order to plug in their own packet capture (and we must presume appropriate filtering, yeah right) was a -- 'if you can't give us realtime feeds, we can get one ourself'. So overall I think there are a lot of stark differences between Lavabit and Apple's case, thankfully. Apple is on much stronger legal footing. The corollary is iCloud and Apple has long since provided everything they had there, and there was no question they were required to do it.
  - nitrogen 11y ago
    It looks like Lavabit filed an amicus/"friend of the court" brief in the Apple case: http://techcrunch.com/2016/03/07/apple-vs-fbi-lavabit-warns-fbis-extraordinary-action-may-drive-us-businesses-offshore/ http://techcrunch.com/2016/03/07/apple-vs-fbi-lavabit-warns-... Despite the differences in the two cases, it makes sense that Lavabit would want to help defend Apple's position.
    - jacquesm 11y ago
      As nice as it is to have the guy stand up for Apple I don't think that from a practical point of view there is anything that he could say that would make a difference.
      - nitrogen 11y ago
        I'm not a lawyer, but as I understand US courts from reading Groklaw and HN and Wikipedia, the arguments put forward in friend-of-the-court briefs can still be helpful to judges who may want to rule a certain way, but don't know all of the possible arguments they could use. There's only so much time they and their staff have to do research, so members of an industry and their legal representatives can contribute if the judges are on the fence or just looking for arguments.
madaxe_again 11y ago
It's debatable that slavery was ever actually abolished - it was just formalised, given a new brand, and life went on. If you are the subject of a state, you do not have any rights beyond those which they choose to grant you - and their ultimate backstop and means of control is the threat of violence against the person. It is illegal to be stateless - you must be the possession of a state. Now consider how slavery is defined. The slave-owners just got bigger.

caf 11y ago

Well, if you can draft people to go over to Vietnam and be shot at by the NVA...

Tloewald 11y ago
But that wasn't relying on the All Writs Act. I.e. "because the court wants you to do X and there's no specific rule that says whether you can force someone to do X"
pdkl95 11y ago
I just mentioned how this could be interpreted as a draft to my mother who grew up watching the Vietnam draft, and she immediately brought up an interesting question: "Can you be a conscientious objector?" Given that nobody is being put in a position where they might have to use deadly force, the usual pacifist or religious arguments don't apply. While suspect it would be hard to extend the concept to the orders given to Apple, the fact that the engineers involved would even consider resignation make it clear how strongly they object to the order.
- sp_ 11y ago
  I'm not saying I'm a conscientious objector, but I write a whole lotta bugs under stress conditions. This may take a while ...
- eximius 11y ago
  I don't think you can 'conscientiously object' to any law you want, so no. Though I probably would anyway. - I'd like to think. It's hard to really know.
- peteretep 11y ago
  You need to prove your conscientious objections to a court. Unless you've got an existing history of privacy activism, that's going to be a challenge.
  - BWStearns 11y ago

cortesoft 11y ago

Or, lets say they complete the task... and it doesn't work. Then what?

harryh 11y ago
Then they explain why it doesn't work to a judge and the judge decides if it doesn't work for a good reason or if it doesn't work because someone intentionally screwed it up. If it was for a good reason then welp. Sometimes shit doesn't work. Oh well. If they intentionally screwed it up then they could be found in contempt of court and fined and/or jailed. In either case the would be asked to try again if that was feasible.
- hysan 11y ago
  But how would a judge have the technical know-how to make that determination? If the answer is to have security experts listen in an make the call, would that even be legal since one of the requirements is to allow Apple to keep this in-house for fear of leaking said code? One last final question, if they do force the engineers to come in and explain themselves over and over to the government's satisfaction, that will increase the time commitment from key members of Apple. At what point would the questioning push the original request into "unreasonable burden" territory which would counter the All Writs' Act's own requirement?
  - harryh 11y ago
    Our legal system is asked to make findings of fact all the time on technical matters. This would be just like any of the rest of those. Witnesses could be questioned. Expert testimony could be delivered. Etc. I understand that it's a common viewpoint on HN that the courts are ill equipped to make these determinations. Personally I think that viewpoint is vastly overstated, but that's a debate for another day. As to your question about "unreasonable burden", Apple made something like 50 billion dollars in profit last year. The burden is going to have to get pretty high before it starts to get unreasonable. A couple of hours (or dozens of hours, or hundreds of hours) isn't going to even begin to get there.

harryh 11y ago

There are a lot more than 5 people who can do what the FBI wants done. Your hypothetical doesn't really seem all that relevant.

mabbo 11y ago
I'm not sure you understand the word 'hypothetical'. The point is to explore the idea.
beedogs 11y ago
So, what's next? Does the government round up coders they think are capable and force them to program?
- harryh 11y ago
  My point is that there is no need to round up anyone. There are plenty of coders who are happy to do the job in return for a fair salary.

joesmo 11y ago

If a password is considered testimony and protected by the 5th Amendment, software also appears to be testimony and covered by the same. If not, then software is just speech and protected by the 1st Amendment. Not speaking is then a valid choice seeing as to how this is not testimony and one is not compelled to speak by the court. But this is just theoretical...

seanp2k2 11y ago
Since corporations are people, they should be able to plead the 5th as well.
- harryh 11y ago
  Sure, but in this case Apple isn't being accused of anything so the 5th amendment doesn't apply.
  - joesmo 11y ago
    "nor shall be compelled in any criminal case to be a witness against himself" (https://www.law.cornell.edu/wex/fifth_amendment https://www.law.cornell.edu/wex/fifth_amendment) This is a criminal case, however. It would apply to real people, but likely does not apply to corporations regardless of rulings treating corporations as people for other purpose. I imagine the Apple lawyers would have had it as part of their defense strategy if it did.
    - rcthompson 11y ago
      No one is asking Apple to testify against itself.

atonse 11y ago

I don't know how that would work. The filing compels Apple to follow the order, and doesn't name any engineers.

studentrob 11y ago

They could be fined hundreds of thousands daily for refusing to act. We recently found out this happened to Yahoo in 2008 [1] via the FISA court. Apple shareholders wouldn't like that. I'm pretty sure Tim Cook and his lawyer mean it when they say they will comply with the law. Apple engineers need not worry so much about quitting their jobs over this. If I were there I would stick with Tim Cook. Consider, If Apple loses this case, this becomes a gigantic public debate where we scramble to enact legislation that removes this power from the government. If Apple wins this case, and the government pursues anti-encryption laws, this becomes a gigantic public debate. If the case is delayed for 2 years and goes to the supreme court, this becomes a gigantic public debate. Regardless, since this is in the public sphere, whether-or-not-we-put-back-doors-in-phones is going to become a gigantic public debate. The only way it doesn't become a big debate is if Obama comes out and says he's been informed on the issue and now realizes encryption in our phones is, on balance, a good thing. [1] http://www.theguardian.com/world/2014/sep/11/yahoo-nsa-lawsuit-documents-fine-user-data-refusal http://www.theguardian.com/world/2014/sep/11/yahoo-nsa-lawsu...

enraged_camel 11y ago
I'm not seeing any sort of "gigantic public debate." Sure, it looks that way from within our tech bubble, but let's be real: the overwhelming majority of people in the United States do not give a shit and could not care less. And among the remaining small minority, encryption is way down on the list of issues they care about and choose to spend time and mental energy on. Further complicating things is the fact that this is a complex topic and most people (including almost all lawmakers and law enforcement agencies) are too ignorant to understand the important nuances, and they have no interest in changing that because, frankly, encryption is hard.
- peteretep 11y ago
  When you look at how well protected Americans health records are, and how judges have said a search of your person doesn't extend to your phone, I think you are entirely wrong to suggest this doesn't extend beyond the tech industry.

gpm 11y ago

There are several factors that must be satisfied for the AWA to apply, even in the FBIs interpretations. One of them is that they have to be closely connected to the case. The arguments for Apple not being far removed are that they license the software, that they designed created and sold the phone, and so on. Most of the don't apply to the individual engineers, so they probably can't be compelled even if the court finds that Apple can. Another is that it can be too burdensome, and part of the burdensome analysis is if it is "offensive" to them. Considering they quit their jobs over this the court would almost certainly find that it was too burdensome, even if the court doesn't find it is too burdensome to compel Apple.

mindcrime 11y ago

does the FBI now compel them to return to Apple and write the software or go to jail? I can't imagine any way in hell that would fly. The only remotely conceivable path to doing something like that would be to have Congress implement a draft, and draft them into the military. Anything else would almost certainly violate the 13th and/or 10th Amendments to the Constitution. And the draft thing is probably a stretch as well, especially in the absence of a declaration of war. Then again, I never put it past the US government to try anything, no matter how illegal it is.

cubano 11y ago
I sure can, and fully expect it to eventually happen, unfortunately. The sad part is, As Tim Cook said, all this will do is push the bad guys to use an encryption app from somewhere else. I have a good deal of experience in the US criminal justice system, and the one thing everyone I've met and done time with inside the system, from bank robbers to drug dealers to murderers say is, in the end, "They (the courts and prosecutors) Do What They Want" In fact its such a common saying, its almost a running joke inside.
- kelseydh 11y ago
  Unless you can afford good lawyers to put on a good defense. Then you get a Netflix show.
  - cubano 11y ago
    Yes I will agree to that, no doubt, and its a very good point. I was definitely talking at the Public Defender level.
  - mindcrime 11y ago
    These Apple engineers will probably be able to afford pretty good lawyers. Heck, some good ones might offer to do this pro-bono, just because it could be a reputation / career maker.

citizensixteen 11y ago

Or, lets say they 'accidentally' brick the phone whilst completing the said task. Then what?

kbart 11y ago

""Suppose that only about 5 people can do what the FBI wants done." Maybe 5 people now can do that, but give a smart programmer (I'm sure Apple has more than a bunch of those) source code and I'm sure he will figure how to do what government requests in max few weeks time. It's not a rocket science.

zaphar 11y ago
I'm a pretty decent engineer. Give me the source code and I guarantee that the first month will be almost entirely figuring out what it does and where it does it. IOS is a and complex system. There will be a LOT of source code. Just figuring out which parts actually matter will be a challenge. Add in that I'm probably not super enthusiastic about the task and that month could end up being two months. And the end result due to unfamiliarity and stress has a non-zero chance of messing up and accidentally wiping the phone anyway. Notice I didn't use quotes there. You would need some significant qa resources to ensure that I didn't mess anything up. Or maybe I'm wrong and there is a clearly marked single easy place to make all the changes that Apple has requested to make and there are already unit tests that verify it does something it wasn't originally designed to do. Then sure a few weeks time is all it will take. But Apple estimated 6 months for trained familiar engineers. Anyone else and we could be looking at close to a year.

da1 11y ago

This is actually very simple. The state can just harass them into compliance. Tools at the state's disposal include but are not limited to: #Legal: * Judge orders them to comply, if they refuse they can be considered to be in contempt and incarcerated for a de facto arbitrary period of time at the judge's discretion (vide https://en.wikipedia.org/wiki/H._Beatty_Chadwick https://en.wikipedia.org/wiki/H._Beatty_Chadwick incarcerated for contempt for 14 years just because the judge suspected he had funds that apparently he didn't have, also Terrell Geiger http://articles.chicagotribune.com/2011-10-07/news/ct-met-long-sentence-20111007_1_appeals-court-witness-murder-case http://articles.chicagotribune.com/2011-10-07/news/ct-met-lo...) * Civil forfeiture. The state can just de facto steal every single item those people have and leave them unable to fight that in court (not that it would make much difference) * Involuntary commitment. They can just be committed into a psychiatric institution where they can be drugged against their will and even tortured. This can be extended to an arbitrarily long period of time * They can have their children taken away * IRS can just accuse them of an astronomical tax debt, take all of their possessions and leave them effectively unable to get legal representation (not that it would make much difference) #"Illegal": * Just detain them in a secret facility and do with them as they dam well please TLDR: The state does with you what it damn well pleases and there's nothing you can really do about it. Granted this usually doesn't happen but that's just because the stakes usually aren't that high.

tallanvor 11y ago
What? Yes, a judge could hold them in contempt and jail them for some time. That's the only legal option. It's possible they could seize some assets as part of the contempt charge, but there are already plenty of legal groups that would jump at the opportunity to represent them pro bono. The other suggestions you offer are, to be blunt, those of a conspiracy nut.
- da1 11y ago
  > Yes, a judge could hold them in contempt and jail them for some time. Not some time, there's no limit. It can be extended arbitrarily. All the others points I made in the legal section are indeed legal and have been used in the past though they are indeed unusual.

madaxe_again 11y ago

They'll go to jail. That's the cost of resistance in a totalitarian society.

s_q_b 11y ago
You do go to jail, usually just court house holding, for contempt of court. That doesn't mean your due process rights disappear. You can challenge the warrant and the applicability of the All Writs Act all the way to SCOTUS. You can even still file a writ of Habeas Corpus. You can even say that you forgot how to make the modifications. The onus is on the DOJ to prove you haven't. Awfully hard to prove what's in a man's head. You could even argue that there's potential criminal liability (e.g. state wiretap laws) in your assistance, and invoke the Fifth Amendment. It's also awfully hard to prove that a man has definitively not committed a crime. Best and most commonly, you can convince the judge that as a matter of conscience there is no amount of time in jail that will convince you to comply with the court's order. Thus holding you in custody serves no judicial purpose, and you are free to go. This may be one where going to jail out of protest is necessary. I say that as someone who faced felony charges that were wholly fabricated, and was offered deal after deal, but I told them I would never take any deal because it wasn't right. I've never forgotten the look I got in response on the prosecutor's face. I've got a feeling, however, that the FBI has made a grave PR mistake here. People have such a personal connection to Apple. A huge portion of the powerful population holds considers their iPhones their most significant inanimate posession. Holding the makers of these devices indefinitely in a jail cell, without trial, might finally connect the American populace to the fact that they have just witnessed the largest scandal since... probably post-Vietnam. This is a moment that where history turns on the decisions of a few. And people have been known to sacrifice far more than time in U.S. prison for ideals far less worthy. If the warrant is upheld, it will be a very individual decision whether to comply. Resistance has power, even under far more hostile governments than ours. I'd like to think I wouldn't. But truly I don't think anyone can really know that until it's real. -------- If anybody from Apple happens to read this: You are already naked. There is no reason not to follow your heart. - Jobs
- madaxe_again 11y ago

Shivetya 11y ago

they could likely force Apple to hire the engineers required even to the point of designated engineers of the government's choosing. The damage that would be done to Apple worldwide would be inestimable

pdabbadabba 11y ago

There's really no question here. If the engineers refuse to comply with the court order the court can hold them in contempt. This means possible fines or jail time. This is old territory, really. Courts have been ordering people to do things under the All Writs Act (including skilled labor) since it was first enacted more than 200 years ago. (The government's brief has some examples, starting on page 17. http://www.wired.com/wp-content/uploads/2016/03/2016.03.10-149-Gov-Reply-ISO-Mot-to-Compel-Opp-to-Apple-Mot-to-Vacate.pdf http://www.wired.com/wp-content/uploads/2016/03/2016.03.10-1...) If an employee claimed he or she did not have the skills to comply with he order then, yes, there could be some sort of hearing to determine whether this was true. But establishing the requisite level of competence probably would not be as hard as you think.

Justsignedup 11y ago

What if now developers start quitting en-mass. Developers refuse to join apple because they would be required to do something morally objectionable to them. Ah who am I kidding, there's always a dude willing to give away his baby's kidney for money. Systems that screw people over are built by humans.

coroutines 11y ago

Apple absolutely needs to comply with the FBI's request. And then give the same capabilities to the governments of every country they do business in. Our politicians might actually fight for our interests in digital privacy/security if theirs is directly threatened by the governments of China, Iran, North Korea, and Russia. If our government needs this to do lawful search and seizure, so do all these others. I'm tired of our gov acting like they're above reproach and somehow more deserving than any other naive government. History has shown they can't protect us from terrorists 100% of the time, and it shouldn't come at the expense of our civil liberties - at the expense of the principles and detracting from the identity of what makes us American. They can't even protect the information of people who elect to share their privacy with the gov (OPM breach/leak of which I was a victim). They shouldn't have the ability to violate the security of [realistically] billions of phones. It's absurdly overreaching and a massive abuse of the authority we "give" them. Caveat: Not complying and this other plan of action would both upset stockholders.