What’s going on is Justice Antonin Scalia is dead.
Had Justice Scalia not died unexpectedly a few days ago
(notably before the Apple/FBI dustup) and had the FBI
pursued the case with it landing finally in the Supreme
Court, well the FBI would have probably won the case 5-4.
Maybe not, but probably.
With Justice Scalia dead and any possible replacement
locked in a Republican-induced coma, the now eight-member
Supreme Court has nominally four liberal and four
conservative justices but at least 1.5 of those
conservatives (Justice Kennedy and sometimes Chief Justice
Roberts) have been known to turn moderate on certain
decisions. This smaller court, which will apparently judge
all cases for the next couple years, is likely to be more
moderate than the Scalia Court ever was.
So if you are a President who is a lawyer and former
teacher of constitutional law and you’ve come over time to
see that this idea of secret backdoors into encrypted
devices is not really a good idea, but one that’s going to
come up again and again pushed by nearly everyone from the
other political party (and even a few from your own)
wouldn’t right now be the best of all possible times to
kinda-sorta fight this fight all the way to the Supreme
Court and lose?
If it doesn’t go all the way to the Supremes, there’s no
chance to set a strong legal precedent and this issue will
come back again and again and again.
That’s what I am pretty sure is happening.
My own, admittedly amateur, interpretation is that he's largely internally consistent with his ideas of protecting person freedoms and advocating in favor of judicial restraint.
I see citizens united as an exanpsion of Scalia's attitude about protecting personal freedoms (and this is an expansion I disagree with, btw). His logic in Bergofell was that the court doesn't have the authority to meddle further in religious matters than it already has and needs to exercise restraint.
In my opinion, the argument is stronger in Bergofell than it is in Citizens United, even though I agree with the result of the former and disagree with the latter.
I could be incredibly wrong, but I think that over 30 years, Scalia has been a champion of individual rights and protections more often than not. Much to various people's chagrin at different times.
That has sometimes led to good results and sometimes led to bad. I feel comfortable in this case making the assertion that Scalia would have definitively come down on the side of Apple, and done so in the heavy-handed manner that he was known for and probably persuaded a fence justice like Kennedy to side with him in this case. But possibly also bringing RBG in with him at the same time.
Yes, it's all prognostication at this point, and I know that. But in my opinion, the bigger picture of Scalia outside of Citizens United and Obergefell are the history of someone who would have opposed the order against Apple.
Cringley is just being Cringely: bigoted, hateful, and wrong. As usual.
But then again, I could be really wrong. It does happen sometimes.
Scalia also didn't think that women were protected from discriminatory laws under the equal protection clause of the 14th amendment (interview in California Lawyer, 2011).
I just have to conclude he thought some individuals (and corporations) were more equal -- and have more rights -- than others.
He can wrong, but then he is known to admit that.
Please, several conclusive examples would be surprising to me and interesting.
I may have disagreed with Justice Scalia on a great many points, but he was one of the foremost defenders of the rights of criminal defendants.
[0]Crawford v. Washington, 541 U.S. 36 (2004)
Also look at Texas v Johnson, Maryland v. King, Kyllo v. United, Florida v Jardines.
Scalia would almost certainly be on Apple's side in this because it represents not a question of legislation but a question of the power of the state.
It's easy to dislike Scalia based on decisions not going the way one's personal convictions would hope, but in questions regarding the power of the state, Scalia is very clear. Remember Scalia defended flag burning as well as opposing thermal imaging into a private home without a warrant. He also opposed involuntary DNA submission -- definitely read the opinions and not simply examine the outcomes.
And there are other examples as well.
People want/like to think of him as a defender of the Constitution. Great. But consistent, he never was.
> The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.
But additionally, he argues that without the physical intrusion, long term tracking via GPS may be permissible:
> The concurrence posits that “relatively short-term monitoring of a person’s movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. ... That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving sub-stantial amounts of cash and narcotics is not an “extra-ordinary offens[e]” which may permit longer observation.
So at a clip, I'd go with my usual and say that Scalia had an independent mind that tried to balance a original reading of the Constitution with federal law. How he'd land on the Apple case is entirely unclear.
[0] https://en.wikipedia.org/wiki/United_States_v._Jones_(2012) [1] https://www.law.cornell.edu/supremecourt/text/10-1259#writin...
The plaintiffs would have to prove with substantial weight that there is a national security issue (i.e. An imminent threat.) That would be hard to prove as the government is really just investigating and fishing as opposed to having proof there's a nuclear launch code on the phone. I would suspect the 9th Circuit would rule in favor of Apple.. As such a 4-4 Supreme Court would by default result in the 9th Court decision standing.
It's probably a good thing we can't lobby them
Perhaps my idea is broken on the face of it. But an amicus brief put together by the HN community doesn't seem completely unreasonable.
My point here is that there are things we are capable of doing that might affect the outcome of such a court case.
For those of us who care--in either direction--it seems reasonable to try.
What I'm going to try to research and build this weekend is the most effective way of contacting the court and sharing your opinions.
It could very well fail to be effective, but that's not going to stop me from trying.
Hell even if it doesn't turn out well, it will be an interesting thing to put up on github to help me get a job.
Based off of the ruling handed down by the judge, it sounds like you could only rule that the work demanded of Apple is too onerous... I feel like that won't accomplish much though. I feel like this situation is pretty orthogonal to a ruling against any "Mandatory Backdoor" laws (which is the holy grail for us at this point)
https://en.wikipedia.org/wiki/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."
a reasonable legal ground in this case to demand from a company to develop anything, in this case a special version of the operating system? Does this act mean "we can order anything to anybody"? Especially when there is "the Communications Assistance for Law Enforcement Act of 1992."
If anything goes, as "All Writs" is tried to be used by the FBI now, we don't need any other laws. "All Writs" rules.
I know Scalia fans like to believe this, but you are dead wrong. It would all depend on how the Republican/Conservative establishment feels. If the Republicans agreed with the Feds, you can bet your ass Scalia would side with them.
The man had no principles, he was just an anti-Democrat and anti-Liberal.
If Apple wins, DOJ gets to turn around and push legislation mandating backdoors on the basis that terrorists are winning in their courts. The public will eat it up, because who the hell wants to side with some guy that murdered 20+ people in San Bernardino?
Conversely, if Apple loses, there are no real lasting effects. Encrypted phones are the new norm, and the 5C is weaker than its successors. If Apple actually can't undermine the encryption (ie: like the newer iPhones), the courts can't force them to do anything. The precedent of being able to force them to undermine underminable phones is meaningless.
The thing to fear is legislation.
The answer is to reject this perverse notion of Judicial Review. This is what we should be lobbying for.
I do not care what SCOTUS or a private corporation does or says. If you attempt to diminish natural rights you should be forwarned; I am coming after you directly to either alter or abolish the policies and government you have unjustly imposed over me and society.
I don't care about these silly irrelevant constructs. My rights to privacy preexisted government, Apple, encryption and the Bill of Rights.
If the DoJ ot FBI disagrees, then we should abolish them. I am no fan of the FBI and their fascist organization built by an oppressive corrupt criminal named Hoover.
One day they will no longer exist and neither will this idea that little men in robes need to tell people what their obvious natural rights are.
Sad HN down votes truth.
In my not-a-lawyer opinion, I think that Apple will absolutely take this as far as it can. With only an 8-member court, Anthony Kennedy becomes even more important than ever.
We should be lobbying SCOTUS harder now than ever before. We need them to rule against this far more than we need to be calling congress people.
We need the Supreme Court to act with the effect of precedent. But I'm not optimistic. We would need Roberts and Thomas to back off their national security platforms, and we need RBG and Kagan to understand the problem better.
Kennedy is a wildcard, but if we can explain the issue in plain English to those key people and get them to agree, this is doable. Alito and Sotomayor will fall in line.
If we do our jobs as members of the body politic, write amicus briefs, and hound the members of the court, this is doable.
Thomas and Roberts can be swayed. So can RBG and Kagan. It would be an easier 5-4 decision with Scalia still around, but this is possible without him, and we need to focus our efforts.
I'll be putting my money where my mouth is over the weekend and creating a website that submits comments to the individual justices. I'll also be asking for help/edits on the boilerplate I'm offering as a starting point.