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> 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

> 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 ago
They certainly got a clue they weren't going to win - so can Apple now do anything to push the case forward for judgement?
- digitalchaos 11y ago
  No. The government is the moving party. If the moving party drops it, the court drops it.
  - themartorana 11y ago
    Boo. IANAL so I can't quite see where the harm may lie in requiring the "moving party" to see through what they started (if the defending party wants it, of course).
    - jacquesm 11y ago
      That would be the end of a whole pile of legal strategies.
      - philipov 11y ago
        Yeah, I believe that ending a whole pile of legal strategies is the point of that suggestion.
        jacquesm 11y ago
        I'm all for it. If you bring suit the other party should be allowed to cause you to have to continue if you feel like dropping it. There is some potential for abuse there though, this is not a simple matter.
        niels_olson 11y ago
        Agreed, in-so-far as any binary decision fails to capture all the nuances, there will be someone who exploits those nuances.
        Scea91 11y ago
        What if you run out of money for lawyers and want to drop the suit because of that?
vectorjohn 11y ago
What powers would you say the AWA grants, then?
- msbarnett 11y ago
  I added that in an edit, but basically, it doesn't grant any powers by itself. It simply aids the court in carrying out its jurisdiction. So, when it comes to wiretapping, there are specific statutes that authorize wiretapping in such-and-such circumstances. The court can then issue writs as needed to carry that out, provided the writs meet fairly narrow criteria (not overly burdensome, only targeted at an entity "close to" the case at hand, only targeted at an entity whose actions are "necessary" and where there's no other way to carry out the jurisdiction, rather than, say, just convenient) and the writ must have some kind of antecedent in common law, which is a somewhat fuzzy topic, but it boils down to "the writ can't just be pulled out of thin air, there's a set of traditional writs and it should appear to be consistent with that set".
- rst 11y ago
  The non-controversial part (that even Apple concedes in its briefs) is that the AWA grants courts the power to issue one of several particular forms of writs (court orders) that existed in British Common Law prior to the American Revolution, when it's necessary to do so in service of some other order that the same court has already issued. The controversial part is what the AWA authorizes (if anything) beyond those pre-existing types of writs. Apple's position was "not much, if anything". The government's was, in effect, "anything not specifically denied by a law passed by Congress" -- which attracted heavy criticism, not only from Apple's lawyers, but also from many highly qualified lawyers who submitted amicus briefs.
  - brisance 11y ago
    But the FBI reports to Obama and Obama being an ex-law professor surely would've told them that their plan would be doomed to failure. Unless Obama wanted them to fail…?
    - 11y ago
Splines 11y ago
IANAL. Why does the existence of the AWA allow such things that the FBI is trying to do? The AWA seems to be a very small piece of law, and using it in the way it's being used seems against the spirit of it. It's frustrating enough that code impact is completely unrelated to code size. I would rather our law not be the same way, but who am I to criticize.
- msbarnett 11y ago
  > IANAL. Why does the existence of the AWA allow such things that the FBI is trying to do? Short answer: It really doesn't. But if you can talk fast and convince magistrate judges to issue writs ex parte (no one is there to oppose you), you can get a lot of mileage out of writs that wouldn't survive an appeal. Most people won't have the time, money, or inclination to challenge them. Even then, magistrate judges have been pushing back. The FBI's going to get slapped for this in the long run. But the long game here is that Comey was hoping public outrage against Apple would convince them to fold and play along with the writ, or nudge congress into giving it the powers it wants. The former clearly isn't working out, but the latter still may. > The AWA seems to be a very small piece of law, and using it in the way it's being used seems against the spirit of it. Bingo. It's also against established case law in the opinion of a very large number of people.
  - camillomiller 11y ago
    I don't think the Congress is really fond of what Comey's doing. The FBI is basically trying to bypass the legislative power by its own means, and to do that it aimed at a target that's too big. The Cupertino hippies might not be well regarded in Washington, but the fact that they are the biggest American company, the most valued and the most respected all over the world still touches some strings in DC.
acqq 11y ago
> One of the amicus briefs in this case was submitted by 32 law professors, who pointed out that this violates due process. The mentioned brief is a very important read, and it's on the Apple's site here: https://www.apple.com/pr/pdf/32_Law_Professors.pdf https://www.apple.com/pr/pdf/32_Law_Professors.pdf From the INTRODUCTION: "First, there is a jurisdictional problem. There is no basis in the record for this Court to assert Article III jurisdiction to issue or enforce the February 16, 2016 Order (“the Apple Order”). The search warrant’s authority is already exhausted and the government’s motion to compel recognizes that CALEA (“Communications Assistance for Law Enforcement Act”) does not provide sufficient authority to support the Apple Order. Rather, the government’s request rests solely on the All Writs Act. However, the All Writs Act is not an original source of federal jurisdiction and cannot support the government’s motion or this Court’s order. The All Writs Act merely provides a source of residual authority where such jurisdiction independently exists. Second, the underlying Order is invalid because it deprives Apple of liberty and property without due process of law. The government initially took the time to seek Apple’s help outside the judicial process. Only after Apple declined did the government file its ex parte application, which did not allow Apple an opportunity to respond. Even though Apple has now had an opportunity to respond to the government’s motion to compel, the underlying Apple Order itself was issued in violation of due process and must be vacated. Third, CALEA and ECPA (“Electronic Communications Privacy Act”) govern the substantive validity of the Order and set out telecommunications carriers’ obligations to assist law enforcement. Significantly, when Congress enacted CALEA, it exempted “information services,” which includes certain services that Apple provides, from that requirement. The Supreme Court has instructed that where a statutory scheme governs a particular subject matter, the All Writs Act’s residual power does not. Finally, no court has ever issued a valid order that imposes an equivalent burden on a non-party. Our research has not found any case that uses the All Writs Act to require a third-party private entity to design and create new software. Some courts have compelled disclosure of already-existing information in cases where the All Writs Act is found applicable. In contrast, the order the government demands in this case would require substantial expenditures of time and talent above and beyond what is appropriate under the All Writs Act. This point is particularly alarming where Apple has made a deliberate decision to exclude the features that the government now demands."

themartorana 11y ago

They certainly got a clue they weren't going to win - so can Apple now do anything to push the case forward for judgement?

digitalchaos 11y ago
No. The government is the moving party. If the moving party drops it, the court drops it.
- themartorana 11y ago
  Boo. IANAL so I can't quite see where the harm may lie in requiring the "moving party" to see through what they started (if the defending party wants it, of course).
  - jacquesm 11y ago
    That would be the end of a whole pile of legal strategies.
    - philipov 11y ago
      Yeah, I believe that ending a whole pile of legal strategies is the point of that suggestion.
      - jacquesm 11y ago
        I'm all for it. If you bring suit the other party should be allowed to cause you to have to continue if you feel like dropping it. There is some potential for abuse there though, this is not a simple matter.
        niels_olson 11y ago
        Agreed, in-so-far as any binary decision fails to capture all the nuances, there will be someone who exploits those nuances.
        Scea91 11y ago
        What if you run out of money for lawyers and want to drop the suit because of that?

vectorjohn 11y ago

What powers would you say the AWA grants, then?

msbarnett 11y ago
I added that in an edit, but basically, it doesn't grant any powers by itself. It simply aids the court in carrying out its jurisdiction. So, when it comes to wiretapping, there are specific statutes that authorize wiretapping in such-and-such circumstances. The court can then issue writs as needed to carry that out, provided the writs meet fairly narrow criteria (not overly burdensome, only targeted at an entity "close to" the case at hand, only targeted at an entity whose actions are "necessary" and where there's no other way to carry out the jurisdiction, rather than, say, just convenient) and the writ must have some kind of antecedent in common law, which is a somewhat fuzzy topic, but it boils down to "the writ can't just be pulled out of thin air, there's a set of traditional writs and it should appear to be consistent with that set".
rst 11y ago
The non-controversial part (that even Apple concedes in its briefs) is that the AWA grants courts the power to issue one of several particular forms of writs (court orders) that existed in British Common Law prior to the American Revolution, when it's necessary to do so in service of some other order that the same court has already issued. The controversial part is what the AWA authorizes (if anything) beyond those pre-existing types of writs. Apple's position was "not much, if anything". The government's was, in effect, "anything not specifically denied by a law passed by Congress" -- which attracted heavy criticism, not only from Apple's lawyers, but also from many highly qualified lawyers who submitted amicus briefs.
- brisance 11y ago
  But the FBI reports to Obama and Obama being an ex-law professor surely would've told them that their plan would be doomed to failure. Unless Obama wanted them to fail…?
  - 11y ago

Splines 11y ago

IANAL. Why does the existence of the AWA allow such things that the FBI is trying to do? The AWA seems to be a very small piece of law, and using it in the way it's being used seems against the spirit of it. It's frustrating enough that code impact is completely unrelated to code size. I would rather our law not be the same way, but who am I to criticize.

msbarnett 11y ago
> IANAL. Why does the existence of the AWA allow such things that the FBI is trying to do? Short answer: It really doesn't. But if you can talk fast and convince magistrate judges to issue writs ex parte (no one is there to oppose you), you can get a lot of mileage out of writs that wouldn't survive an appeal. Most people won't have the time, money, or inclination to challenge them. Even then, magistrate judges have been pushing back. The FBI's going to get slapped for this in the long run. But the long game here is that Comey was hoping public outrage against Apple would convince them to fold and play along with the writ, or nudge congress into giving it the powers it wants. The former clearly isn't working out, but the latter still may. > The AWA seems to be a very small piece of law, and using it in the way it's being used seems against the spirit of it. Bingo. It's also against established case law in the opinion of a very large number of people.
- camillomiller 11y ago
  I don't think the Congress is really fond of what Comey's doing. The FBI is basically trying to bypass the legislative power by its own means, and to do that it aimed at a target that's too big. The Cupertino hippies might not be well regarded in Washington, but the fact that they are the biggest American company, the most valued and the most respected all over the world still touches some strings in DC.

acqq 11y ago

> One of the amicus briefs in this case was submitted by 32 law professors, who pointed out that this violates due process. The mentioned brief is a very important read, and it's on the Apple's site here: https://www.apple.com/pr/pdf/32_Law_Professors.pdf https://www.apple.com/pr/pdf/32_Law_Professors.pdf From the INTRODUCTION: "First, there is a jurisdictional problem. There is no basis in the record for this Court to assert Article III jurisdiction to issue or enforce the February 16, 2016 Order (“the Apple Order”). The search warrant’s authority is already exhausted and the government’s motion to compel recognizes that CALEA (“Communications Assistance for Law Enforcement Act”) does not provide sufficient authority to support the Apple Order. Rather, the government’s request rests solely on the All Writs Act. However, the All Writs Act is not an original source of federal jurisdiction and cannot support the government’s motion or this Court’s order. The All Writs Act merely provides a source of residual authority where such jurisdiction independently exists. Second, the underlying Order is invalid because it deprives Apple of liberty and property without due process of law. The government initially took the time to seek Apple’s help outside the judicial process. Only after Apple declined did the government file its ex parte application, which did not allow Apple an opportunity to respond. Even though Apple has now had an opportunity to respond to the government’s motion to compel, the underlying Apple Order itself was issued in violation of due process and must be vacated. Third, CALEA and ECPA (“Electronic Communications Privacy Act”) govern the substantive validity of the Order and set out telecommunications carriers’ obligations to assist law enforcement. Significantly, when Congress enacted CALEA, it exempted “information services,” which includes certain services that Apple provides, from that requirement. The Supreme Court has instructed that where a statutory scheme governs a particular subject matter, the All Writs Act’s residual power does not. Finally, no court has ever issued a valid order that imposes an equivalent burden on a non-party. Our research has not found any case that uses the All Writs Act to require a third-party private entity to design and create new software. Some courts have compelled disclosure of already-existing information in cases where the All Writs Act is found applicable. In contrast, the order the government demands in this case would require substantial expenditures of time and talent above and beyond what is appropriate under the All Writs Act. This point is particularly alarming where Apple has made a deliberate decision to exclude the features that the government now demands."