Community Reacts to Apple vs FBI Story

[zoobyshoe]

I was under the impression the FBI had been compliant with statutory procedures (warrant issued, due process, etc.). Did the judge indicate how the FBI violated statutory procedures?

My reading of the article is that there is some 1985 "decision" about All Writs that the government had previously cited to allow them to do what they wanted to do. The judge, however, found they had failed to cite another part of that 1985 decision that does not authorize them to do that. So, apparently, all this time they actually had no known legal authorization. I would suppose they were complying with what statute they thought existed. The problem was it didn't exist. So, he is questioning the precedent, which was flawed for being based on an incomplete reading of a prior "decision."

 

[Dembadon]

My reading of the article is that there is some 1985 "decision" about All Writs that the government had previously cited to allow them to do what they wanted to do. The judge, however, found they had failed to cite another part of that 1985 decision that does not authorize them to do that. So, apparently, all this time they actually had no known legal authorization. I would suppose they were complying with what statute they thought existed. The problem was it didn't exist. So, he is questioning the precedent, which was flawed for being based on an incomplete reading of a prior "decision."

Interesting. I did a little digging and found judge Ornstein's ruling: https://assets.documentcloud.org/documents/2728314/Orenstein-Order.pdf

JAMES ORENSTEIN, Magistrate Judge:
The government seeks an order requiring Apple, Inc. ("Apple") to bypass the passcode
security on an Apple device. It asserts that such an order will assist in the execution of a search warrant
previously issued by this court, and that the All Writs Act, 28 U.S.C. § 1651(a) (the "AWA"), empowers
the court to grant such relief. Docket Entry ("DE") 1 (Application). For the reasons set forth below, I
conclude that under the circumstances of this case, the government has failed to establish either that
the AWA permits the relief it seeks or that, even if such an order is authorized, the discretionary
factors I must consider weigh in favor of granting the motion. More specifically, the established rules
for interpreting a statute's text constrain me to reject the government's interpretation that the AWA
empowers a court to grant any relief not outright prohibited by law. Under a more appropriate
understanding of the AWA's function as a source of residual authority to issue orders that are
"agreeable to the usages and principles of law," 28 U.S.C. § 1651(a), the relief the government seeks is
unavailable because Congress has considered legislation that would achieve the same result but has not
adopted it. In addition, applicable case law requires me to consider three factors in deciding whether to
issue an order under the AWA: the closeness of Apple's relationship to the underlying criminal
conduct and government investigation; the burden the requested order would impose on Apple; and
the necessity of imposing such a burden on Apple. As explained below, 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. I therefore deny the motion.

emphasis mine

I believe what I've bolded are the statutory requirements judge Ornstein believes the government has circumvented or ignored. I imagine there will be an appeal since this was a district court case and I don't see the government just giving up. In the case of an appeal, it will be up to the New York Supreme Court to decide whether to uphold or reject his ruling, I guess.

Edit: Actually, the next step is probably the USSC since this was handled in the US District Court. (Thank you, wife) =)

 

[zoobyshoe]

In trying to read through that (extremely long and dense) ruling, I came across his reference to this, CALEA, law:

As part of its effort to ensure that the law[CALEA] would not stem technological progress, the legislature included several provisions exempting certain kinds of entities from the more general requirement to assist law enforcement in the execution of court orders authorizing various forms of electronic surveillance. These "Limitations" on CALEA's scope, 47 U.S.C. § 1002(b), fell into three categories. First, Congress limited the ability of law enforcement to prescribe or constrain the services communications companies could offer their customers and the equipment and systems used to market them:

Design of features and systems configurations. This subchapter does not authorize any law enforcement agency or office

(a) to require any specific design of equipment, facilities, services, features, or system configurations to be adopted by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services;

(b) to prohibit the adoption of any equipment, facility, service, or feature by any provider of a wire or electronic communication service, any manufacturer of telecommunications equipment, or any provider of telecommunications support services.

https://assets.documentcloud.org/documents/2728314/Orenstein-Order.pdf
-Pages 15 &16
I mention it because it seems to have a clear bearing on the FBIs overall stand against "going dark."

 

[zoobyshoe]

I believe what I've bolded are the statutory requirements judge Ornstein believes the government has circumvented or ignored.

I am not sure they would be called Statutory Requirements. Rather, my reading is that, at least some of what what you bolded probably would better be characterized as 'Discretionary Guidelines':

If an application under the AWA meets all three of those requirements, the court "may" issue the requested writ in the exercise of its discretion – but it is never required to do so. See, e.g., Application of U.S. in Matter of Order Authorizing Use of a Pen Register, 538 F.2d 956, 961 (2d Cir. 1976), rev'd on other grounds, United States v. N.Y. Tel. Co., 434 U.S. 159 (1977); Morrow v. District ofColumbia, 417 F.2d 728, 736 (D.C. Cir. 1969); Paramount Film Distributing Corp. v. Civic Center Theatre, Inc., 333 F.2d 358, 360 (10th Cir. 1964); Chemical & Indus. Corp. v. Druffel, 301 F.2d 126, 129 (6th Cir. 1962). A court deciding whether to take such discretionary action should consider three additional factors:

1. the closeness of the relationship between the person or entity to whom the proposed writ is directed and the matter over which the court has jurisdiction;

2. the reasonableness of the burden to be imposed on the writ's subject; and

3. the necessity of the requested writ to aid the court's jurisdiction (which does replicate the second statutory element, despite the overlapping language).

https://assets.documentcloud.org/documents/2728314/Orenstein-Order.pdf-Page 11

The court *may* issue the requested writ. It doesn't have to. It's up to their discretion. The guidelines guide their discretion. As I read it.

 

[Dembadon]

I am not sure they would be called Statutory Requirements. Rather, my reading is that, at least some of what what you bolded probably would better be characterized as 'Discretionary Guidelines'

Agreed. I spoke with my wife about it and she corrected me; pretty much exactly how you've interpreted it.

In any case, in the likely event of an appeal, it will be interesting to see how it's handled.

 

[zoobyshoe]

Agreed. I spoke with my wife about it and she corrected me; pretty much exactly how you've interpreted it.

Your wife is involved in the law? Studying law?

In any case, in the likely event of an appeal, it will be interesting to see it's handled.

I've seen other judges already weigh in (not that I remember where since I noted it in passing while pursuing other questions) and it's clear they each have their own style and emphasis. This judge can't be used as a predictor of how future rulings will go. But this judge has, at least, put forth an argument that has to be refuted or agreed with. He's set the perimeter of the battle, I think.

 

[Dembadon]

Your wife is involved in the law? Studying law?

Yes, her father has been in (private) practice for 30 years and she's been working as his paralegal for 10. Since it's just the two of them, she's been able to do some pretty cool stuff, such as draft motions and other documents in federal cases for our state's supreme court. However, she did acknowledge that knowing everyone in one's local court system (personalities, proclivities, pet peeves, etc.) plays a huge role in managing a case. At the federal level, unless you're taking federal cases all the time in a smaller state, you usually know very little about who's on the other end and have to rely on past rulings of similar cases to direct your efforts and points of focus.

 

[zoobyshoe]

Yes, her father has been in (private) practice for 30 years and she's been working as his paralegal for 10. Since it's just the two of them, she's been able to do some pretty cool stuff, such as draft motions and other documents in federal cases for our state's supreme court. However, she did acknowledge that knowing everyone in one's local court system (personalities, proclivities, pet peeves, etc.) plays a huge role in managing a case. At the federal level, unless you're taking federal cases all the time in a smaller state, you usually know very little about who's on the other end and have to rely on past rulings of similar cases to direct your efforts and points of focus.

That's good to hear because it confirms what I've read about how it works: knowing a lot about the judge is often better than knowing the law.

 

[nsaspook]

Great one by John Oliver, even Graham now understands it's a technological/math issue rather than a political issue.

 

[russ_watters]

This raises the issue of why Apple decided to draw the line where it did.

It seems that what prompted their taking action was that the NY judge, Orenstein (who recently decided in their favor) had questioned law enforcement's legal grounds as far back as October, and alerted Apple to the possible "out" for them:

http://www.cnn.com/2016/02/23/politics/apple-justice-department/index.html?iid=EL

In other words, the judge, Orenstein, who recently decided in their favor, is also actually the person who originally let them know they had a legal reason to question the FBIs demands. Before this, Apple didn't realize any such ammunition existed, so they had gone, begrudgingly, along with it.

That's an interesting theory, but I find it hard to believe that one of the largest companies in the world had put so little thought into the issue that they needed someone to suggest to them that they think about it before they decided to think about it.

 

[russ_watters]

[deleted]]

I don't generally look to comedians for legal advice, but since a few people expressed approval of this I tried watching and I'm proud to say I got 3 minutes into it before I got bored with mediocre jokes that had nothing to do with the issue, so I stopped...though I left it running while typing this and at the 2:55 mark he mischaracterizes the issues when he says "Apple cannot currently get into the phone..." Not a good start with the first relevant thing he said.

Not sure if this is an acceptable source for PF or not.

 

[nsaspook]

I don't generally look to comedians for legal advice, but since a few people expressed approval of this I tried watching and I'm proud to say I got 3 minutes into it before I got bored with mediocre jokes that had nothing to do with the issue, so I stopped...though I left it running while typing this and at the 2:55 mark he mischaracterizes the issues when he says "Apple cannot currently get into the phone..." Not a good start with the first relevant thing he said.

Not sure if this is an acceptable source for PF or not.

Apple cannot (but I'm pretty sure our government outside of law enforcement can) currently get into the phones data until they build an update to the OS to add a vulnerability that still leaves the internal secret key intact to extract that data. That's their main argument, they do not want to make a tool to give them that capability using their signing key.

 

[zoobyshoe]

That's an interesting theory, but I find it hard to believe that one of the largest companies in the world had put so little thought into the issue that they needed someone to suggest to them that they think about it before they decided to think about it.

Despite your incredulity, it appears to be what happened:
http://blogs.reuters.com/alison-fra...nspired-apples-encryption-fight-with-justice/

INTRODUCTION AND SUMMARY

In its October 9, 2015 Memorandum & Order (“Order”), the Court raised concerns about the government’s application to compel Apple to take possession of an Apple device the government obtained from a suspect during the investigation of alleged criminal activity so that Apple could bypass the security mechanisms on that device and extract data from it for the government. The Court raised two categorical questions: (1) Does the All Writs Act, 28 U.S.C. § 1651(a), authorize the relief the government seeks? (2) Is the assistance sought from Apple technically feasible and not unduly burdensome? On October 19, 2015, Apple provided its views regarding technical feasibility and burden.1 The Court has now asked Apple to address the other question posed in its Order—whether the All Writs Act can properly compel Apple to render the services the government requests...

http://blogs.reuters.com/alison-frankel/files/2016/02/applebrooklyn-appleonallwrits.pdf

 

[russ_watters]

Despite your incredulity, it appears to be what happened:

That's just a re-statement of the theory. It doesn't provide any actual evidence that Apple's thousands of lawyers hadn't considered this issue until then and it only speculates as to the cause-effect relationship. It doesn't offer any actual direct evidence. If that case has really had such an impact, Apple hasn't mentioned it.

 

[russ_watters]

Apple cannot...currently get into the phones data until they build an update to the OS...

So...are we we agreed that his statement was intentionally misleading? Apple can't "currently" get in because they haven't made the effort to get in, but when they choose to get in they will be able to. Right?

 

[zoobyshoe]

That's just a re-statement of the theory. It doesn't provide any actual evidence that Apple's thousands of lawyers hadn't considered this issue until then and it only speculates as to the cause-effect relationship. It doesn't offer any actual direct evidence. If that case has really had such an impact, Apple hasn't mentioned it.

There is enough circumstantial evidence for me to say, "It appears...," which is all I did. If you have some actual direct evidence that Apple was, in fact, working on this defense even before Orenstein brought it to their attention, and that their lawyers had already decided to draw the line at the Farook phone, post it and I'll be enlightened.

 

[russ_watters]

There is enough circumstantial evidence for me to say, "It appears...," which is all I did. If you have some actual direct evidence that Apple was, in fact, working on this defense even before Orenstein brought it to their attention, and that their lawyers had already decided to draw the line at the Farook phone, post it and I'll be enlightened.

I haven't looked into the timeline for the NY case, but the evidence that the Farook case is where they chose to make their stand is that the Farook case is the one where they publicly chose to make their stand.

 

[zoobyshoe]

I haven't looked into the timeline for the NY case, but the evidence that the Farook case is where they chose to make their stand is that the Farook case is the one where they publicly chose to make their stand.

You're all confused. I wasn't asking for evidence of when they took their stand but why they took it when they did:

This raises the issue of why Apple decided to draw the line where it did.

It seems that what prompted their taking action was that the NY judge, Orenstein (who recently decided in their favor) had questioned law enforcement's legal grounds as far back as October, and alerted Apple to the possible "out" for them:

So, again, If you have some actual direct evidence that Apple was, in fact, working on this defense even before Orenstein brought it to their attention, and that their lawyers had already decided to draw the line at the Farook phone, post it and I'll be enlightened.

 

[256bits]

Edit: Actually, the next step is probably the USSC since this was handled in the US District Court

The appellate court ie US Second Circuit Court of Appeals would be bypassed you think and go directly to Supreme.
Would they accept. I guess they would, I suspect.

 

[russ_watters]

You're all confused. I wasn't asking for evidence of when they took their stand but why they took it when they did:

So, again, If you have some actual direct evidence that Apple was, in fact, working on this defense even before Orenstein brought it to their attention, and that their lawyers had already decided to draw the line at the Farook phone, post it and I'll be enlightened.

The "when" might inform about which drove which. But regardless, no I don't care enough about this particular nuance to investigate it at the moment. So we should just let it go.

 

[vela]

Great one by John Oliver, even Graham now understands it's a technological/math issue rather than a political issue.

But this whole case is a political issue. There's no question about the technology side. Either you have secure encryption or you don't. The issue is the FBI wanting to set a precedent.

 

[vela]

I don't generally look to comedians for legal advice, but since a few people expressed approval of this I tried watching and I'm proud to say I got 3 minutes into it before I got bored with mediocre jokes that had nothing to do with the issue, so I stopped...though I left it running while typing this and at the 2:55 mark he mischaracterizes the issues when he says "Apple cannot currently get into the phone..." Not a good start with the first relevant thing he said.

Not sure if this is an acceptable source for PF or not.

Why not? His coverage of the issue is better than anything the mainstream media has done. The fact that you completely dismissed it suggests to me that you're choosing to ignore it simply because you don't like the message.

If it's a mischaracterization to say that Apple can not currently get into the phone, then it's also a mischaracterization to say that the FBI can't get into the phone without Apple's help. It just has to decap a chip and extract the hardware ID. Apple can't get into the phone any more than the FBI can with the current software. The whole issue is the FBI is trying to force Apple to write software to weaken the device's security.

 

[nsaspook]

So...are we we agreed that his statement was intentionally misleading? Apple can't "currently" get in because they haven't made the effort to get in, but when they choose to get in they will be able to. Right?

No, I don't, because the choices and decisions we make freely matter.

 

[russ_watters]

No, I don't, because the choices and decisions we make freely matter.

I understand it is a choice. The mischaracterization is him characterizing it as not being a choice:
Will/won't is a choice
Can/can't is not a choice.

 

[russ_watters]

But this whole case is a political issue.

Yes, ultimately it is about personal privacy opinions; Whether one thinks people should be allowed to keep information completely secret or not.

 

[mheslep]

Why not? His coverage of the issue is better than anything the mainstream media has done...

Matter of opinion. Even if the arguments of both sides are presented fairly, each point includes mockery and a laugh track which is an emotional appeal to acceptance of a given view else one is siding with at least the unhip and likely the morons. The overall thesis is that the host is omnipotent, almost begging the listener to come aboard, anything but think for themselves. Comedy news did not invent the tactic, but it does it better than most.

 

[nsaspook]

Yes, ultimately it is about personal privacy opinions; Whether one thinks people should be allowed to keep information completely secret or not.

It's a false choice 'secret or not'. There is nothing the government can do to stop it other than use force to make people reveal keys on devices with strong encryption.
https://cdt.org/insight/issue-brief-a-backdoor-to-encryption-for-government-surveillance/

The organizations in the government (like the DOD) that use encryption to protect the nations secrets don't agree with the FBI for good reason.

Carter told a packed room that he supported strong encryption and thought backdoor access to encrypted communication as unrealistic. During his talk on the Apple-vs.-the-FBI case, in which he shied away from the details because it is a “law enforcement issue,” Carter received scattered applause from the crowd of security professionals after he stated that position.

“I think, first of all, that for the Department of Defense, data security, including encryption, is absolutely essential to us. We are for strong encryption,” Carter says. “I’m not a believer in back doors or a single technical approach. I don’t think it’s realistic.”

http://www.newsweek.com/us-defense-...er-doesnt-believe-encryption-backdoors-432811

 

[zoobyshoe]

Matter of opinion. Even if the arguments of both side are presented fairly, each point includes mockery and a laugh track which is an emotional appeal to acceptance of a given view else one is siding with at least the unhip and likely the morons. The overall thesis is that the host is omnipotent, almost begging the listener to come aboard, anything but think for themselves. Comedy news did not invent the tactic, but it does it better than most.

Begrudgingly: when you're right, your right. Your analysis of the video is very sharp and accurate, IMO. There are two things going on in it: at one level, a presentation of both arguments (which you conditionally suggest might be fair) but at another level, the viewer is being subjected to emotional manipulation that coaches him/her to understand which argument is "hip," most socially savvy. The viewer clearly understands which side is the "cool" side to be on and which side is the "loser" side, as arbitrated by the apparently "omniscient" host.

What I want to ask you, though, is your opinion of the fairness of the presentation of the arguments. Abstracted from the propagandistic matrix, were both sides fairly presented, or did you see any flaws there that should be examined?

 

[vela]

I understand it is a choice. The mischaracterization is him characterizing it as not being a choice:
Will/won't is a choice
Can/can't is not a choice.

Oliver said, "Even Apple can't currently get into the phone," and in context, the statement is correct. He explains that the FBI wants Apple to change the software so that in the future they'd be able to get around the security features. You can only deem it a mischaracterization if you willfully misinterpret what Oliver said.

 

[Dembadon]

The appellate court ie US Second Circuit Court of Appeals would be bypassed you think and go directly to Supreme.
Would they accept. I guess they would, I suspect.

Two different US District Courts have reached opposite conclusions: California said they have to help, while New York said they did not. This is usually a sign that a case is headed to the USSC. However, Apple has appealed the CA judge's ruling, and the appellate court will likely consider judge Ornstein's ruling when making their decision. Also, the USSC isn't required to hear every case appealed from lower federal courts. I'm still unsure about how it will play out.

 

[russ_watters]

Oliver said, "Even Apple can't currently get into the phone," and in context, the statement is correct. He explains that the FBI wants Apple to change the software so that in the future they'd be able to get around the security features.

Here's the problem: it is poor writing style to reverse-qualify something that should be binary - it is weasel wording. And while the context may help clarify it, using a vulgar joke as the context is distracting - he should have just worded it properly to begin with. Needing to qualify it like that means he used the wrong word. To put a finer point on it, check out the use of language in the Wired article linked in the OP. It uses "can", "could", and "can't" about 30 times, almost all of them for the same type of purpose and none including a reversing qualifier like Oliver did. Specific to or similar to this example:

"They can’t read the secure private keys out of it, but they can eliminate things like the passcode delay"
"You can eliminate the passcode delay and you can eliminate the other device-erase [security feature]."
"There are changes that Apple can make to the secure enclave to further secure their phones..."

Anyway, this is a relatively minor point in the main issue here: that the source is from a comedy bit, and it isn't news. I reported it, asking the question ("Is this an acceptable source?"), but not explaining/weighing into convince anyone of my position, and Greg has made the decision: it is not acceptable, so it is deleted. To explain in more detail:

-A reporter has a duty to accurately inform you. There are ethical standards (not necessarily codified, but consensus) they are expected to follow. Probably the most important is a duty to report the truth.

-A comedian has a duty to make you laugh. Often, this involves misleading you, scaring you, manipulating you, insulting you, insulting someone else (that last one is probably the most common comedic device in such shows). Nowhere in there is any sort of duty to tell you the truth.

So simply put, a comedy source is not a news source and is therefore not acceptable for discussion of a news issue. I would be acceptable for the "Funny Pictures..." thread, though.

 

[russ_watters]

It's a false choice 'secret or not'. There is nothing the government can do to stop it other than use force to make people reveal keys on devices with strong encryption.

I really was trying to be agreeable there, distilling it down to what I thought we could agree is the main philosophical point of contention. Your objection seems to me to be too nuts-and-bolts level specific and not uniformly applicable: different peoples' visions of what privacy should be will necessarily have different implementations. So I'm not sure what your point is/what your philosophical view is here.

The organizations in the government (like the DOD) that use encryption to protect the nations secrets don't agree with the FBI for good reason.

I'm not sure I agree with your interpretation of what we are reading ("he shied away from the details"), but in either case, different government departments with different mandates may not agree on overlapping issues. That shouldn't be a surprise.

 

[zoobyshoe]

-A comedian has a duty to make you laugh. Often, this involves misleading you, scaring you, manipulating you, insulting you, insulting someone else (that last one is probably the most common comedic device in such shows). Nowhere in there is any sort of duty to tell you the truth.

Your characterization pretty much misses the mark concerning the genre evident in that video:

American literary theorist Kenneth Burke writes that the “comic frame” in rhetoric is “neither wholly euphemistic, nor wholly debunking—hence it provides the charitable attitude towards people that is required for purposes of persuasion and co-operation, but at the same time maintains our shrewdness concerning the simplicities of ‘cashing in.’” [24] The purpose of the comic frame is to satirize a given circumstance and promote change by doing so. The comic frame makes fun of situations and people, while simultaneously provoking thought.[25] The comic frame does not aim to vilify in its analysis, but rather, rebuke the stupidity and foolery of those involved in the circumstances.[26] For example, on The Daily Show, Jon Stewart uses the “comic frame” to intervene in political arguments, one such way is his sudden contrast of serious news with crude humor. In a segment on President Obama’s trip to China Stewart remarks on America’s debt to the Chinese government while also having a weak relationship with the country. After depicting this dismal situation, Stewart shifts to speak directly to President Obama, calling upon him to “shine that turd up.”[27]For Stewart and his audience, introducing coarse language into what is otherwise a serious commentary on the state of foreign relations serves to frame the segment comically, creating a serious tone underlying the comedic agenda presented by Stewart.

-wiki article on Comedy

Truth is the whole point of this kind of comedy, the truth usually being: 'some people in the given circumstances are acting like morons'. It's social criticism with the intent of promoting change. So, the core "duty" is absolutely not merely to make you laugh at any cost. It's to make you laugh at the attitude or logic or propensity that makes you, or anyone, act like a moron, thereby breaking your attachment to that attitude, logic, or propensity. My college acting teacher once said: "Humor is the beginning of detachment." Humor breaks the spell, the spell of the mindset that is leading you astray. If you can be lead to see the absurd side of your logic, it frees you to replace it with good logic. All proper jokes function as psychological reducio ad absurdam proofs. Therefore, my own motto about it is: "Humor is serious business." That video was brilliant in that sense.

 

[russ_watters]

Your characterization pretty much misses the mark concerning the genre evident in that video:

-wiki article on Comedy

Truth is the whole point of this kind of comedy...

That isn't what the quote says. It says "provoking thought" and "serious", but never "truth" or anything close to that (such as "accurate", "correct", etc.).

...the truth usually being: 'some people in the given circumstances are acting like morons'.

That's mistaking opinion for fact. But it is indeed the point of the ridicule aspect of the device.

 

[nsaspook]

I really was trying to be agreeable there, distilling it down to what I thought we could agree is the main philosophical point of contention. Your objection seems to me to be too nuts-and-bolts level specific and not uniformly applicable: different peoples' visions of what privacy should be will necessarily have different implementations. So I'm not sure what your point is/what your philosophical view is here.

I have a pretty good nuts-and-bolts understanding of the limits of what even the full application of military power can do to limit the capability of people to communicate secretly. The FBI has to accept the genie is out of the bottle in their plan to see the secrets of others in secret. That's the real objective to law enforcement back doors for me. (surveillance in secret) I believe that the government has a proper case in public for Apple to respond to by making the required software even if Apples conscience tells them they cannot.