Re:Brooklyn Judge: Feds Can't Use All Writs Act to Force App...
by acqq on Monday February 29, 2016 @06:17PM
(#11199537)
And
"It is wholly implausible to suppose that with so many of the newly-adopted Constitution's drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that document's very first substantive mandate: "All legislative Powers herein granted shall be vested in a Congress of the United States[.]" U.S. Const. Art. I, § 1. And yet that is precisely the reading the government proposes when it insists that a court may empower the executive to exercise power that the legislature has considered yet declined to allow.
It is a reading that thoroughly undermines both the legislature's own prerogative to reject a legislative proposal effectively and efficiently (without the need to affirmatively ban the proposed authority) and the more general protection against tyranny that the Founders believed required the careful separation of governmental powers."
--
As the power that the legislature "considered yet declined to allow" the judge refers to the existing law, CALEA (Communications Assistance for Law Enforcement Act):
--
"it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also" "even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe."
"The Justice Department is "disappointed" in Orenstein's ruling and plans to ask a higher judge within the same federal district to review the matter in coming days, a department representative said."
"It is wholly implausible to suppose that with so many of the newly-adopted Constitution's drafters and ratifiers in the legislature, the First Congress would so thoroughly trample on that document's very first substantive mandate: "All legislative Powers herein granted shall be vested in a Congress of the United States[.]" U.S. Const. Art. I, § 1. And yet that is precisely the reading the government proposes when it insists that a court may empower the executive to exercise power that the legislature has considered yet declined to allow.
It is a reading that thoroughly undermines both the legislature's own prerogative to reject a legislative proposal effectively and efficiently (without the need to affirmatively ban the proposed authority) and the more general protection against tyranny that the Founders believed required the careful separation of governmental powers."
--
As the power that the legislature "considered yet declined to allow" the judge refers to the existing law, CALEA (Communications Assistance for Law Enforcement Act):
--
"it is arguable that CALEA explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here and also" "even if CALEA does not have such an explicit prohibition, it is part of a larger legislative scheme that is so comprehensive as to imply a prohibition against imposing requirements on private entities such as Apple that the statute does not affirmatively prescribe."
--
Another side, according to Reuters:
http://www.reuters.com/article/us-apple-encryption-deny-idUS...
"The Justice Department is "disappointed" in Orenstein's ruling and plans to ask a higher judge within the same federal district to review the matter in coming days, a department representative said."