Encryption

Federal Judge Takes Apple's Side vs. Feds in New York

Says government has overstepped bounds

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Apple bites back.
Credit: procsilas / photo on flickr

We have a new wrinkle in the encryption fight between Apple and the FBI. In a drug case, a magistrate judge in New York's Eastern District has ruled that Apple does not need to assist the feds in unlocking a person's phone and that the All Writs Act does not extend to such a demand. From The New York Times:

Magistrate Judge James Orenstein in New York's Eastern District said in a ruling on Monday that the United States government couldn't use a law called the All Writs Act to force Apple to hack into an iPhone that was seized in connection with a drug case. The government overstepped what the All Writs Act was intended for, the judge wrote.

"After reviewing the facts in the record and the parties' arguments, I conclude that none of those factors justifies imposing on Apple the obligation to assist the government's investigation against its will," Judge Orenstein wrote. "I therefore deny the motion."

The All Writs Act is the 1789 federal law that allows the courts to compel people and companies to assist in dealing with a legal matter, as long as it is not unduly burdensome, is not covered by current statutes, and the company involved is directly connected to the legal matter.

Apple has argued that invoking the All Writs Act is overreach. The government cannot force the company to actually create code to assist in the decryption of phone security. The judge here seems inclined to agree. The full order can be read here. It's remarkably technically detailed, but one concern that I draw from the ruling is that the government essentially argued that All Writs Act can be used to order anybody to do anything on behalf of pursuing a legal case unless Congress passed a statute or regulation forbidding them from doing so or otherwise established rules. In short, because federal law didn't explicitly say the Department of Justice could not order Apple to assist, that meant that they could. The judge was not fond of that argument:

If, for example the President sent to Congress a bill explicitly authorizing a court to issue the kind of order the government seeks here, and if every single member of the House and Senate were to vote against the enactment of such a law citing the kinds of data security and personal privacy concerns that Apple now embraces, the government would nevertheless describe the order sought here as permissible because Congress had merely rejected the bill—however emphatically, and however clear its reasons for doing so—rather than affirmatively passing legislation to prohibit the executive branch's proposal. Yet in such circumstances, it would be absurd to posit that the authority the government sought was anything other than obnoxious to the law.

 An even starker illustration of the absurdity the government's construction produces is that it does not allow a court to deem an action beyond the AWA's reach even if it is an exercise of authority that had formerly been available under a statute that Congress elected to repeal because it was persuaded on policy grounds to retract such authority from the executive. Thus, for example, if communications service providers were to persuade Congress that CALEA had imposed unreasonable burdens on them that threatened their ability to remain in business, Congress could make the choice to repeal that law—thereby removing the statutory obligation to provide certain types of assistance to law enforcement. And yet in the absence of a statute affirmatively prohibiting the government from requiring a company to provide such assistance, the government would read the AWA to nevertheless allow a court to order those same companies to provide precisely the same assistance to law enforcement that Congress had decided no longer to compel.

In fact, the judge determined that if he were to accept the government's argument here, it would potentially render the All Writs Act unconstitutional as it hands over power (to create laws and determine their limits) from the legislative branch to the judicial branch.

Tomorrow the fight will head over to Congress. Both Apple and the FBI will be making their cases to the House Judiciary Committee.

Don't know why you should care about this fight? Read here.

NEXT: Trump and the Constitution [updated with some additional points]

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  1. Glad you posted it since I can’t seem to post anything

  2. squirrels suck. squirrels suck. squirrels suck. squirrels suck. squirrels suck. squirrels suck. squirrels suck.

    1. Hey! Hey! Hey! Hey! Hey! Hey! Hey! Hey! Hey! Hey!

  3. You hear that noise? It’s the terrorists WINNING!

  4. I’d say this is good news, but The Donald will make them open up that iPhone.

    If the nerds in Cupertino don’t cooperate, he’ll torture them until they do. If they still don’t, he’ll kill their families.

    The Donald knows how to negotiate. He wrote the world’s best-selling business book on the topic. The Donald is going to Make America Great Again, and if you dare to write otherwise he’ll sue you for libel.

    1. It won’t work. Donald himself will tell you that you can only succeed in negotiating if you can walk away. Unlike his attempt to pave over some old lady’s house for a parking lot, he can’t walk away here. He walked away from the parking lot because he couldn’t cut a good deal. Once the Supreme Court told him to go pound sand that is.

  5. I’d say this is good news, but The Donald will make them open up that iPhone.

    If the nerds in Cupertino don’t cooperate, he’ll torture them until they do. If they still don’t, he’ll kill their families.

    The Donald knows how to negotiate. He wrote the world’s best-selling business book on the topic. The Donald is going to Make America Great Again, and if you dare to write otherwise he’ll sue you for libel.

  6. I’d say this is good news, but The Donald will make them open up that iPhone.

    If the nerds in Cupertino don’t cooperate, he’ll torture them until they do. If they still don’t cooperate, he’ll kill their families.

    The Donald knows how to negotiate. He wrote the world’s best-selling business book on the topic. The Donald is going to Make America Great Again, and if you dare to write otherwise he’ll sue you for libel.

    1. Donny Drumpf will make it illegal to repeat yourself – it will be deemed a form of ‘cyber bullying’. And that’s the one policy I can whole heartedly support.

  7. Squirrels are feeling their oats tonight! Must be their birthday or something.

    1. It’s the leap year thing, they’re confused about today’s date and think we’re trying to comment today on posts written tomorrow. Skwerls is eezly konfewsd.

  8. That judge is the same one who refused the same order the Govt was demanding back in October, which has been mentioned a half dozen times here and elsewhere

    no one seems to bother noting that this current battle with Apple has happened at least twice before, and the govt is recycling arguments which had been addressed and refuted in the past.

    1. Haven’t shopped the right court yet

      1. Sadly, that is probably exactly the case.

        1. It is the “existence in being” game that is the State.
          Never never never, Never;
          quit the field!

          It is the eternal thief, the predator, and the parasite.
          Native to our corner of the universe.

          Join top of food chain and survive it, being more alive and dynamic?
          Park cynic and do stealth, dodge, faster runner, out thinker, etc. …

          That is:
          Find where you are in the feeding chain.
          The future goes to the uneaten…

    2. Will banning Sugary drinks work or not?

      1. Banning guns in DC worked!
        /sarc

    3. That judge is the same one who refused the same order the Govt was demanding back in October

      I think we found who Obama should nominate to the SC.

  9. Ever actually read the All Writs Act?

    (a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

    (b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

    “Agreeable to the usages and principles of law”. Seems to me the usage and principles of law are “Obey!” and “FYTW”, so what’s the problem? Pretty uppity judge there, claiming the law doesn’t mean whatever the government says it means, because it does.

    1. Read the above link.

      e.g. “The All Writs Act is not a backdoor to bypass other laws. The government cannot impose an unreasonable burden on Apple, and it cannot violate the Constitution. If the government truly wanted Apple to decrypt a phone running iOS 8 or later, it would blow past these boundaries. First, unless Apple is lying about how its system is engineered, it simply can’t grant access to the data on a locked phone?not by reflashing the operating system, and not by pushing a backdoored software update?because it’s locked. That should be the end of it. But if Apple in fact has this capacity, or if the government instead tried to require it to prospectively reengineer the operating system on an unlocked device, All Writs is not the means to do so.

      Reengineering iOS and breaking any number of Apple’s promises to its customers is the definition of an unreasonable burden. As the Ninth Circuit put it in a case interpreting technical assistance in a different context, private companies’ obligations to assist the government have “not extended to circumstances in which there is a complete disruption of a service they offer to a customer as part of their business.” What’s more, such an order would be unconstitutional. Code is speech, and forcing Apple to push backdoored updates would constitute “compelled speech” in violation of the First Amendment. It would raise Fourth and Fifth Amendment issues as well.”

      1. Depends on the judge. Have a coworker that is convinced that “common sense gun laws” voted on is exactly the same as “shall not be infringed.” We are at the point where words get to be voted on.

        1. I think we are past that point.

          I’m hoping to reclaim the word “liberal”; as progressives seem to have been leaving it open for recapture.

          “Progressive” fits them;
          one might well let them progress off whatever cliff, of the many several they are steering toward.

          Try not be chained to Titanic, if your sure when it is going down…

          1. “your”
            I did it. No excuses

  10. Maybe Judge purchased an iPhone 6s the week prior.

  11. In fact, the judge determined that if he were to accept the government’s argument here, it would potentially render the All Writs Act unconstitutional as it hands over power (to create laws and determine their limits) from the legislative branch to the judicial branch.

    , instead from the legislative branch to the executive branch as clearly intended.

  12. I asked Siri something about wood chippers and got a link to an American Thinker article about the Reason 9.

  13. Now what am I supposed to do with my shiny new woodchipper?

  14. Encryption back doors are a bad thing.

    That’s why it is unfortunate that Apple’s iPhones have such encryption back doors that let Apple access the contents of your phone at will.

    Our phones need to be free of backdoors, including free of backdoors for the manufacturer.

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  17. If Apple were serious about throwing the hammer into the teeth of totalitarianism the’d simply donate a fat check to the Libertarian Party. Spoiler votes cast for small parties are what changes the law–sometimes even the Constitution.

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