I think Apple was wrong to have picked to have this battle in such a poorly defended position. The stand would have been better made over a secure device they couldn't unlock. But obviously I have to now root for Apple, hoping that a terrible intermediate precedent does not get set and that they're able to dissuade new laws as well.
At least the amended FBI request looks a lot less risky.
Apple did not pick this battle, how can you even think they would? the FBI carefully chose this case to break character and go public on despite Apple's request to have the case sealed.
This tragedy is being exploited by the FBI in order to set a legal precedent to further their surveillance powers that would compel a Technology company to use their own resources against theirs and their customers best interests.
The device in question is insecure. For example, if the proper subset of Apple employees' children were kidnapped, they'd be using their backdoor.
As such, Apple could have acted how courts expect a commercial third party to act [0], issued a security advisory for the vulnerability, and made damn sure future devices were secure. Alas, doing so would undermine their model of maintaining a backdoor to owners' devices but only wanting to use it for commercial purposes.
[0] A locksmith doesn't editorialize about which warrants to facilitate, and when he does, the government simply changes locksmiths. The novelty here is that Apple is supposedly the only locksmith that can unlock this lock, so USG wishes to compel them to engage. Given that they're an incorporated commercial entity, I don't hold out hope.
I'm not sure a device they couldn't unlock really solves the problem. Lets say they did have such a device. Couldn't the government just force them into building a back door even if they themselves can't unlock it?
This is the underlying argument to me, and I feel a bit like a conspiracy theorist saying it. But based on the talk about Apple or Whatsapp or the lack of documented evidence for the latest FCC ruling about wifi radios. It feels more like the government is positioning itself to have private back door access to everything. Not to mention the president basically said just that while speaking at SXSW.
Sure, which is why proprietary solutions are ultimately doomed if USG continues down its totalitarian path. But it would have been a tougher legal battle to constrain what types of software can be written in general, compared to just compelling Apple to unlock one specific device of interest using an existing backdoor. And it seems like once the easier precedent has been set, the worse one will be a much shorter leap.
> It feels more like the government is positioning itself to have private back door access to everything
That's exactly what it's doing. Total Information Awareness is more than just the name of a "cancelled" program, it's a concept which is inextricably interwoven throughout the entire intelligence community.
All Apple, Google, and Facebook, need to do to get public favor is add a loading spinner for 3-5 seconds on every refresh/page load and make it clear the government surveillance is the cause. I for one look forward to the 2nd American Revolution.
Or, every time you go to enter your password, present a click-through disclaimer that the FBI may have access to whatever information you are about to provide. Press "OK" to acknowledge that we cannot protect your privacy, or "Cancel" to go back to safety.
I think Apple is legally in the wrong. What the law should be is a different issue, though I also side with the government in this particular case. I don't think the government should be able to force Apple to ship backdoored phones to customers. But I think that the government should be able to require Apple to use its capabilities to hack particular devices with a court order. In other words, Apple should be free to make phones they themselves cannot hack, but not to refuse to help hack a phone that the government has a warrant for.
I'm not a lawyer, but I found the ruling from New York pretty interesting.
At the heart of the matter seems to be: should congress have to explicitly disallow the government from doing anything it wants? There is extensive legislation saying when companies like (or similar to) Apple need to comply with law enforcement. They are relatively new (the 90s). This means congress has considered the issue extensively, and ultimately decided to not force a company like Apple to comply with law enforcement in certain circumstances. The DOJ wants that to mean that they can still force them. However, the Judge is saying that, effectively, since the issue has been debated and congress has not forced companies Apple to help, this is a legislative choice, and thus being able to force Apple to help through the all writs act would violate the separation of powers.
Basically, if you believe the DOJ's line of thought, congress could decide not to pass a bill giving the courts the ability to do something, then the courts could still use the all writs act to give themselves that power. Because there is no law outlawing it.
But I think that the government should be able to require Apple to use its capabilities to hack particular devices with a court order.
That's not the question, though: the question is whether the All Writs Act already grants that power, or whether a new piece of legislation is required.
I think that Apple is right that it is more conservative for the courts to construe the existing legislation narrowly, since the Government always has the option to put specific legislation before Congress to remove all doubt.
Legislation shouldn't be construed broadly or narrowly. It should mean what it says. Sometimes that's called 'narrowly', but that's probably in contrast to approaches where the law means whatever you want it to mean. The All Writs Act is a broad law. It grants the courts the broad authority to issue whatever orders are "necessary and appropriate" in order to enforce their judgments, so long as its "agreeable to the usages and principles of law." Congress is free to pass revisions to the All Writs Act if it pleases.
It's all very well to say "It should mean what it says.", but this is just begging the question - frequently what it says is imprecise, so the meaning is open to interpretation. In the case of the All Writs Act, for example, the Supreme Court found a three-pronged test in New York Telephone.
It's precisely because it is a very broad law that it should be construed narrowly - in this case, that it is intended to be able to compel the co-operation of parties with some real involvement in a case, not to authorise open-ended civil conscription in service of the judicial branch.
