11 ms·
I suspect that the intelligence and law enforcement communities are afraid that if this case goes to the Supreme Court the All Writs Act may be scaled back or r
by nostromo 11y ago
I suspect that the intelligence and law enforcement communities are afraid that if this case goes to the Supreme Court the All Writs Act may be scaled back or ruled unconstitutional.
The All Writs Act goes back to 1789 and is used for all sorts of things, like wire tapping, obtaining call and ISP records, etc., and now trying to force Apple to make malware for their own phone.
It's definitely a risk for the FBI to fight this battle and potentially lose a tool they use all the time. Since there is probably no new info on the phone, it may not be worth the risk of making this a big fight with a motivated and well-financed adversary like Apple.
- cturner 11y agoI assume they are not particularly interested in the phone itself. Rather, that they have been shopping for a situation with the character of this one so as to try their luck at pushing their capture rights.
- sixothree 11y agoDon't worry, one will arise.
- r00fus 11y agoSo why did they push it so far? Was it really just a game of chicken where the FBI wanted to stare down Apple?
- jonknee 11y agoIt's a game they have never lost before, it doesn't seem so far fetched. Apple pushed back hard.
- DanBC 11y agoThis one time, this specific case, Apple pushed back. They need to be commended for that, but let's not forget all the other times (and there are very many) when they (and all tech companies) just handed over the data when given a valid warrant.
- oldmanjay 11y agoI definitely expect Apple to comply with valid warrants to the extent possible. Is there a serious belief that Apple should flout the law? Is there a company in the world that obstructs justice in their home country?
- trill1 11y agoA lot of the big tech companies had an inside look at the growing surveillance state far before the average citizen did. I think an argument can be made that the should have done more to inform the public.
- studentrob 11y agoAre you suggesting they go out of business like Lavabit? That is the stand you're taking when you disobey orders to keep government requests secret. And, I'm not sure a large corporation has that option. How could shareholders accept a fine for which they're not permitted to know the details? Remember when Snowden first revealed the Prism program? All the tech companies issued similar statements saying they want to tell people more, but did not have permission from the US government. For example, Apple said, > Like several other companies, we have asked the U.S. government for permission to report how many requests we receive related to national security and how we handle them. We have been authorized to share some of that data, and we are providing it here in the interest of transparency. [1] Also, I'm sure Yahoo would've loved to rally support from its users when the government was threatening to fine them $250,000 per day for refusing to hand over data, but they were not allowed to tell anyone [2] I do believe the government was doing what they thought was right to protect public safety. However, they don't understand technology. Ted Lieu is about the only guy in Congress who does. We need a bit more representation there to have our voices heard, whether through electing Congressmen with CS backgrounds, independent lobbying like the EFF, or just better tech reporting and questioning in the White House daily briefs. The existence of the FISA courts is something we should be scrutinizing more. Former NSA Director Hayden pointed out in one interview that we're the only country who has such secret courts. With these courts, democracy is circumvented. Currently, the public is not able to participate in the discussion of what's right on some major issues that have far reaching impact. [1] http://www.apple.com/apples-commitment-to-customer-privacy/ http://www.apple.com/apples-commitment-to-customer-privacy/ [2] 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...
- ethanbond 11y agoI wouldn't be surprised. The fact that we don't hear about companies standing up like this every couple of weeks might imply that the standard response is compliance.
- wfunction 11y agoWould it be foolish to think they struck some kind of behind-the-doors deal with Apple?
- r00fus 11y agoNot foolish, but would Apple really agree to the "we found another way to backdoor the phone" messaging?
- donarb 11y agoWhat agreement? Apple doesn't nor should they care what the government does with the phone. If the government drops their suit, Apple has prevailed in their argument.
- victorhooi 11y agoAs in - the government is trying to push "Stuff you Apple, we found another way in" argument. That isn't good PR for Apple. Whether the government is just lying, in order to save face, remains to be seen - somebody with more knowledge of the technology at hand may be able to comment.
- jacquesm 11y agoYes because it would open Apple up to someone leaking the details of that deal. After the stand Tim Cook took that would not go down well.
- colejohnson66 11y agoIf you had engineers threatening to quit if forced to write "GovtOS", it would make sense that there would be quite a few who wouldn't mind leaking that a behind-the-doors deal was made.
- criddell 11y agoAt the start of this Apple-FBI episode, didn't Apple initially ask the FBI to submit their request for unlocking software under seal? Doesn't that imply that Apple was willing to assist? Why else would Apple want to keep the request secret?
- ProAm 11y agoTo set a legal precedent. Sort of a set it and forget it kind of law.
- Bluestrike2 11y agoThis was probably the best possible case for them to try this with. They had a terrorist attack on American soil, and one involving Islamic extremists at that. Not only is there less than zero sympathy for the attackers, there's also an element of fear that you have here as well to go along with the hatred people tend to feel towards terrorists and mass shooters. They probably thought that if it came down to a PR battle, assuming Apple didn't just roll over for fear of the PR consequences of "obstructing a terror investigation," they had it in the bag. Turns out? Not so much.
- BWStearns 11y ago> All Writs Act may be scaled back or ruled unconstitutional Totally agree with the broader point (I think they're scared of a restrictive precedent), but I don't think a law that's been on the books for two hundred plus years is going to be out and out declared unconstitutional. It's extremely broad in the number of domains of application but that doesn't necessarily mean that it grants overly broad power.
- panarky 11y agoThis needs to be decided once and for all. A savvy judge would not allow the Department of Justice to cancel the hearing just to avoid setting a precedent.
- kabdib 11y agoIt's a procedural thing, not really up to the judge.
- msbarnett 11y ago> I suspect that the intelligence and law enforcement communities are afraid that if this case goes to the Supreme Court the All Writs Act may be scaled back or ruled unconstitutional. It's not that the act is unconstitutional, it's that the interpretation of it that the DoJ has been selling to magistrate judges in ex parte hearings is extremely broad and would never survive appeal. The Supreme Court has made it very clear in multiple rulings that A) The AWA is certainly constitutional and B) it is extremely narrow in its powers and it doesn't grant courts anything even remotely similar to the powers the FBI has been pressuring magistrate judges into believing it has. So, essentially, by avoiding a highly publicized appeals smackdown, the FBI can still convince magistrates to issue wildly out-of-line AWA writs, and use those writs to pressure companies/people into doing things they wouldn't be held to if they had the time/money to actually appeal. edit: > The All Writs Act goes back to 1789 and is used for all sorts of things, like wire tapping, obtaining call and ISP records, etc Also, I see this mistake a lot (I'm not saying you're making it, but it's a pretty common one). The AWA doesn't actually give the government the power to wire tap things, etc. There are separate statutes that authorize wiretapping. All the AWA does, per the Supreme Court, is give courts the authority to issue common law writs in the course of carrying out powers conferred by some other statute. The AWA is described as being a source of "residual" (secondary) power that only acts to help carry out some primary source of authority. The DoJ has been pushing an argument that the AWA is a source of primary power in-and-of-itself in any area of law where congress hasn't passed a law saying a court can't do X thing, and the writs don't have to have antecedents in common law. This more-or-less contradicts any number of Supreme Court rulings. They've only been getting away with it because they get a magistrate Judge to issue them by asking for them in "emergency" ex parte hearings, meaning the other side isn't present to offer a competing argument, which the FBI excuses by arguing its a time-sensitive matter (even though it generally isn't). One of the amicus briefs in this case was submitted by 32 law professors, who pointed out that this violates due process.
- themartorana 11y agoThey certainly got a clue they weren't going to win - so can Apple now do anything to push the case forward for judgement?
- rewrew 11y agoLast week the former US "cyber czar" Richard Clarke called the FBI out directly for doing it solely for legal precedent, and stated that virtually no one even in the gov't were on their side: http://arstechnica.com/tech-policy/2016/03/former-cyber-czar-says-nsa-could-crack-the-san-bernadino-shooters-phone/ http://arstechnica.com/tech-policy/2016/03/former-cyber-czar... >>Clarke noted that Comey and the Justice Department were not getting support in their case from the defense and intelligence communities. "The Justice Department and the FBI are on their own here," he said. "The FBI director [Comey] is exaggerating the need for this, and the Attorney General [Loretta Lynch] is letting him get away with it."<< But the weird thing is that, from the beginning, most legal experts thought the likely outcome would be that All Writs would be found too broad, so the FBI had to have been suffering from some hubris + bad legal council. So maybe someone with enough muscle finally called them out on it?
- jacquesm 11y agoAnd: https://news.ycombinator.com/item?id=11288030 https://news.ycombinator.com/item?id=11288030
- wool_gather 11y agoI find it more likely that this is simply a tactical decision: they already knew about this "new method", and were holding it in reserve so that they could cancel the proceedings if necessary (i.e., if Apple put up too much of a fight). They will keep trying until they get the precedent.
- rms_returns 11y ago> They will keep trying until they get the precedent. Don't they already have a precedent when they shut down Truecrypt some years ago?
- aioprisan 11y agoTruecrypt is still active in the sense that it is both something that can be downloaded and the last security audit showed that there aren't any major flaws. Are you referring to a different service, perhaps?
- hackuser 11y agoThe following is the best analysis by far that I've seen about the All Writs Act and its application in these cases. It's from the Just Security blog, out of NYU Law School: https://www.justsecurity.org/29634/readers-guide-magistrate-judge-writs-act-cases/ https://www.justsecurity.org/29634/readers-guide-magistrate-... (I'd read the links to the articles in the blog itself.)
- mgalka 11y agoHilarious. Since when does the FBI announce when it finds a new vulnerability to exploit? It's up against the biggest companies in the world, the US public, and the international community. And now it's backing down with its tail btw its legs, and telling a silly story to save face.
- kristopolous 11y agoAlso, the FBI would have to be able to sell something (their story) better than ... Apple Computer Inc. If you are in the game of trying to sell something better than Apple, you better have a pack of actual wizards casting spells on your side ala Bewitched.
- wodenokoto 11y agoPeople love to bring up the fact that this act is rather old, but so are the amendments. I assume it is to say that the writs act is outdated, but what was its original rationale and why is it considered to no longer be constitutional?
- camillomiller 11y agoI think it's more likely that they fear this use of the awa would be ruled incostitutional, not the law itself