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4. They don't want to allow precedents to be set that aren't the precedents they were looking for.

by RichieAHB 11y ago

theintern 11y ago
Could you elaborate on what you mean here?
- ParadoxOryx 11y ago
  They don't want to lose and have a precedent set that doesn't allow them to do what they want.
  - RichieAHB 11y ago
    This is exactly what I mean.
Bluestrike2 11y ago
The issue was never that the magistrate judge would be setting the precedent. No matter who prevailed, there is going to be an appeal and that's when precedent would be set. Even at that point, a negative ruling wouldn't necessarily be an insurmountable problem for the FBI as it wouldn't be binding until the issue has been decided by higher authority. It could still be cited as an example of persuasive authority (i.e. something other courts may follow) before then, but that's not the same as being binding. So the FBI would have a lot of time before they had to worry about the consequences of a negative ruling, and they could drop the matter well before any precedent was set. Apple is in a trickier situation, in that once they've done the work, it becomes more likely that they'll face additional demands in other courts, or--and this is the worst case scenario--a few boneheaded legislators try to pass legislation on this issue. They've got a lot less room to work in, so if they could make this go away in front of a district magistrate without ever having to worry about setting any precedent (even if in their favor), they probably would. 0. http://www.law.georgetown.edu/academics/academic-programs/legal-writing-scholarship/writing-center/upload/which_court_is_binding_painter-and-mayer-final.pdf http://www.law.georgetown.edu/academics/academic-programs/le... 1. http://faculty.law.lsu.edu/toddbruno/mandatory_v__persuasive.htm http://faculty.law.lsu.edu/toddbruno/mandatory_v__persuasive...
- RichieAHB 11y ago
  That may all be true and I don't dispute the duration and the fact that it wouldn't be binding at this level. However, what the FBI need is something to get the ball rolling, the golden case that would set a precedent; that would almost definitely become binding in the higher court. They want a good foundation from which to proceed and I believe this case is now not it for them. They will wait for something that galvanises the general public and the courts more so than the current case, which will ultimately have a higher likelihood of setting the ball rolling towards a precedent. There's no other reason for this misappropriation of the All Writs Act other than to try and ultimately set a precedent.
  - Bluestrike2 11y ago
    Yeah, but this was that case. I made the point in another comment, but this case had all of the emotional pull the FBI could ask for because it was a terrorist attack on US soil. Fear, anger, hate, even elements of Islamophobia combined to slant the PR field significantly in the FBI's favor. Even judges would be hesitant refuse the request unless it was blatantly flawed. Criminal cases aren't going to offer them anywhere near that sort of counterweight to the strong privacy concerns Apple has raised. So unless we're talking about Osama bin Laden's iPhone, and since he's dead that's kind of a non-starter, I don't see there being a better case. But if there's an alternative method that's been proposed and the FBI is aware of it, the FBI can't claim that forcing Apple to act is the government's last resort. So that's the most likely reason they've halted proceedings and not any fear that they may lose.

4. They don't want to allow precedents to be set that aren't the precedents they were looking for.

theintern 11y ago

Could you elaborate on what you mean here?

ParadoxOryx 11y ago
They don't want to lose and have a precedent set that doesn't allow them to do what they want.
- RichieAHB 11y ago
  This is exactly what I mean.

Bluestrike2 11y ago

The issue was never that the magistrate judge would be setting the precedent. No matter who prevailed, there is going to be an appeal and that's when precedent would be set. Even at that point, a negative ruling wouldn't necessarily be an insurmountable problem for the FBI as it wouldn't be binding until the issue has been decided by higher authority. It could still be cited as an example of persuasive authority (i.e. something other courts may follow) before then, but that's not the same as being binding. So the FBI would have a lot of time before they had to worry about the consequences of a negative ruling, and they could drop the matter well before any precedent was set. Apple is in a trickier situation, in that once they've done the work, it becomes more likely that they'll face additional demands in other courts, or--and this is the worst case scenario--a few boneheaded legislators try to pass legislation on this issue. They've got a lot less room to work in, so if they could make this go away in front of a district magistrate without ever having to worry about setting any precedent (even if in their favor), they probably would. 0. http://www.law.georgetown.edu/academics/academic-programs/legal-writing-scholarship/writing-center/upload/which_court_is_binding_painter-and-mayer-final.pdf http://www.law.georgetown.edu/academics/academic-programs/le... 1. http://faculty.law.lsu.edu/toddbruno/mandatory_v__persuasive.htm http://faculty.law.lsu.edu/toddbruno/mandatory_v__persuasive...

RichieAHB 11y ago
That may all be true and I don't dispute the duration and the fact that it wouldn't be binding at this level. However, what the FBI need is something to get the ball rolling, the golden case that would set a precedent; that would almost definitely become binding in the higher court. They want a good foundation from which to proceed and I believe this case is now not it for them. They will wait for something that galvanises the general public and the courts more so than the current case, which will ultimately have a higher likelihood of setting the ball rolling towards a precedent. There's no other reason for this misappropriation of the All Writs Act other than to try and ultimately set a precedent.
- Bluestrike2 11y ago
  Yeah, but this was that case. I made the point in another comment, but this case had all of the emotional pull the FBI could ask for because it was a terrorist attack on US soil. Fear, anger, hate, even elements of Islamophobia combined to slant the PR field significantly in the FBI's favor. Even judges would be hesitant refuse the request unless it was blatantly flawed. Criminal cases aren't going to offer them anywhere near that sort of counterweight to the strong privacy concerns Apple has raised. So unless we're talking about Osama bin Laden's iPhone, and since he's dead that's kind of a non-starter, I don't see there being a better case. But if there's an alternative method that's been proposed and the FBI is aware of it, the FBI can't claim that forcing Apple to act is the government's last resort. So that's the most likely reason they've halted proceedings and not any fear that they may lose.