> I suspect that the intelligence and law enforcement communities are afraid that if this case goes to the Supreme Court the All Writs Act may be scaled back or ruled unconstitutional.

It's not that the act is unconstitutional, it's that the interpretation of it that the DoJ has been selling to magistrate judges in ex parte hearings is extremely broad and would never survive appeal.

The Supreme Court has made it very clear in multiple rulings that A) The AWA is certainly constitutional and B) it is extremely narrow in its powers and it doesn't grant courts anything even remotely similar to the powers the FBI has been pressuring magistrate judges into believing it has.

So, essentially, by avoiding a highly publicized appeals smackdown, the FBI can still convince magistrates to issue wildly out-of-line AWA writs, and use those writs to pressure companies/people into doing things they wouldn't be held to if they had the time/money to actually appeal.

edit:

> The All Writs Act goes back to 1789 and is used for all sorts of things, like wire tapping, obtaining call and ISP records, etc

Also, I see this mistake a lot (I'm not saying you're making it, but it's a pretty common one). The AWA doesn't actually give the government the power to wire tap things, etc. There are separate statutes that authorize wiretapping. All the AWA does, per the Supreme Court, is give courts the authority to issue common law writs in the course of carrying out powers conferred by some other statute. The AWA is described as being a source of "residual" (secondary) power that only acts to help carry out some primary source of authority.

The DoJ has been pushing an argument that the AWA is a source of primary power in-and-of-itself in any area of law where congress hasn't passed a law saying a court can't do X thing, and the writs don't have to have antecedents in common law. This more-or-less contradicts any number of Supreme Court rulings. They've only been getting away with it because they get a magistrate Judge to issue them by asking for them in "emergency" ex parte hearings, meaning the other side isn't present to offer a competing argument, which the FBI excuses by arguing its a time-sensitive matter (even though it generally isn't). One of the amicus briefs in this case was submitted by 32 law professors, who pointed out that this violates due process.

They certainly got a clue they weren't going to win - so can Apple now do anything to push the case forward for judgement?

No. The government is the moving party. If the moving party drops it, the court drops it.

I understand that in principle, but is that the end of it in reality?

I'm pretty sure NewEgg was recently taken to court by a patent troll, and after the troll realized that NewEgg fights instead of paying, they backed off. Then NewEgg sued to get a judgement that would guarantee this couldn't happen to them again.

I know this is a different venue and there are topical differences. But are you absolutely certain that there is no counter-action Apple (or any company, for that matter) can pursue to get a judgment about this?

In this context, yes.

Newegg's actions were different, in that the patent owner's dropping the suit didn't actually resolve the question of infringement. It was still out there, and the patent owner could re-file suit at any point in the future. Between now and then, if Newegg were in fact infringing, monetary damages would continue to pile up. So the uncertainty can have a pretty significant impact on business decisions and impair their ability to operate. A request for declaratory judgment seeks to resolve that uncertainty so that both parties can get back to normal.

For Newegg, the request accomplishes a few things. It lets them clear the air, indirectly help solve the resulting from the remaining suits against retailers selling Rosewill products, and it's the legal equivalent of spiking the football and giving the troll a swift kick in the nuts. Minero Digital now gets to defend itself in a Delaware court, absent all of the little advantages of East Texas. It's a rather bad break for them.

Honestly, if I were a patent troll, I'd be scared shitless to send a letter to someone like Newegg. With their stance on patent suits, they're exactly the sort of company that would preemptively file a request for declaratory judgment after they were contacted.

This court case is over. But the fight for encryption was never really in court anyway, it was in Congress and the White House. It became obvious over the past month that there is still a lot of education on encryption that needs to happen.

Boo. IANAL so I can't quite see where the harm may lie in requiring the "moving party" to see through what they started (if the defending party wants it, of course).

That would be the end of a whole pile of legal strategies.

Yeah, I believe that ending a whole pile of legal strategies is the point of that suggestion.

I'm all for it. If you bring suit the other party should be allowed to cause you to have to continue if you feel like dropping it. There is some potential for abuse there though, this is not a simple matter.

Agreed, in-so-far as any binary decision fails to capture all the nuances, there will be someone who exploits those nuances.

What if you run out of money for lawyers and want to drop the suit because of that?

Counterpoint: if you want to sue everyone in the Unites States for pirating your porn, ask for $50 in settlement for dropping charges, and drop charges for anyone who shows up in court with legal representation, should the judge be sympathetic to you? Isn't a frivolous lawsuit a frivolous lawsuit anymore?

In addition to the counterpoint that newjersey brings up, we could also restrict this power to cases where the plaintiff is the government (local, state, or federal).

While nuisance suits from private actors can totally be ruinous, the potential for harm from government actors is so much greater.

Yes, but it would probably also cause a bunch of other problems.

It's not that obvious. Paul Klemperer (auction theorist) covers a similar question: what happens if the losing party has to pay the prevailing party's legal fees? Answer: the same amount will be spent on legal fees and the same cases will be brought forward.

(1) See middle of page 5 here: http://www.nuff.ox.ac.uk/users/klemperer/WhyEveryEconomist.p... Where he debunks Dan Quayle's court reform ideas

> ...covers a similar question: what happens if the losing party has to pay the prevailing party's legal fees?

That's not at all a similar question. We're talking about staking the following strategy through the heart:

* Some part of USGov makes an overreaching legal demand using a really shaky (perhaps unsupportable) legal argument.

* They get a magistrate to issue an order in an "emergency" ex parte hearing

Now either:

* USGov presents that court order to a small and/or legally clueless business who says: "This is a court order! I have to comply with it, else I get in trouble!". USGov gets what they wanted and gets to bully another unwary victim with the same bullshit tactic

or

* USGov presents that court order to a larger and/or legally savvy business who examines it and says: "No. This is bullshit."

* That company goes to the court and tells the court why the order is bullshit

* The court quietly mumbles: "USGov... they're right, looks like it's bullshit."

* USGov goes: "Oops! We really didn't need that anyway!", withdraws the request, and retries it at a later day with a less savvy victim

So, completely different situations.

If USGov had to keep pushing such cases through if the defendant demanded that they be pushed through, what you'd get is what we get when Newegg fights patent trolls: evisceration of bullies, thugs, and the chicanery that permits them to operate.

The least that should happen in this case is the courts should ask the FBI exactly how did they found an alternative method to crack the iphones. If they don't, its unfair to Apple since they were potentially about to be ordered by the state to exploit a vulnerability themselves. IANAL of course, this is just my informed view based on existing facts.

In this case, moving party didn't drop it so much as stall for time. But, the judge also stayed the order that Apple had to help the FBI which telegraphs her intent. I think the FBI knows it lost this round and needs to find a face-saving way to get out of it.

Couldn't they seek something like a declaratory judgement?

There's the 'capable of repetition, yet evading review' exception to the mootness doctrine. But I agree this particular case is probably DoA. Maybe Apple can move for sanctions ...

IANAL. Why does the existence of the AWA allow such things that the FBI is trying to do? The AWA seems to be a very small piece of law, and using it in the way it's being used seems against the spirit of it.

It's frustrating enough that code impact is completely unrelated to code size. I would rather our law not be the same way, but who am I to criticize.

> IANAL. Why does the existence of the AWA allow such things that the FBI is trying to do?

Short answer: It really doesn't.

But if you can talk fast and convince magistrate judges to issue writs ex parte (no one is there to oppose you), you can get a lot of mileage out of writs that wouldn't survive an appeal. Most people won't have the time, money, or inclination to challenge them.

Even then, magistrate judges have been pushing back. The FBI's going to get slapped for this in the long run. But the long game here is that Comey was hoping public outrage against Apple would convince them to fold and play along with the writ, or nudge congress into giving it the powers it wants. The former clearly isn't working out, but the latter still may.

> The AWA seems to be a very small piece of law, and using it in the way it's being used seems against the spirit of it.

Bingo. It's also against established case law in the opinion of a very large number of people.

I don't think the Congress is really fond of what Comey's doing. The FBI is basically trying to bypass the legislative power by its own means, and to do that it aimed at a target that's too big. The Cupertino hippies might not be well regarded in Washington, but the fact that they are the biggest American company, the most valued and the most respected all over the world still touches some strings in DC.

What powers would you say the AWA grants, then?

The non-controversial part (that even Apple concedes in its briefs) is that the AWA grants courts the power to issue one of several particular forms of writs (court orders) that existed in British Common Law prior to the American Revolution, when it's necessary to do so in service of some other order that the same court has already issued.

The controversial part is what the AWA authorizes (if anything) beyond those pre-existing types of writs. Apple's position was "not much, if anything". The government's was, in effect, "anything not specifically denied by a law passed by Congress" -- which attracted heavy criticism, not only from Apple's lawyers, but also from many highly qualified lawyers who submitted amicus briefs.

But the FBI reports to Obama and Obama being an ex-law professor surely would've told them that their plan would be doomed to failure. Unless Obama wanted them to fail…?

It appears as reading in too much, because nobody knew if Apple would react so strongly and bravely, risking to be presented by the majority of the press as "helping the terrorists." Read, as an example of the view opposite of Apple's, how Bill Gates reacted:

http://www.usnews.com/news/articles/2016-02-23/bill-gates-on...

I added that in an edit, but basically, it doesn't grant any powers by itself. It simply aids the court in carrying out its jurisdiction.

So, when it comes to wiretapping, there are specific statutes that authorize wiretapping in such-and-such circumstances. The court can then issue writs as needed to carry that out, provided the writs meet fairly narrow criteria (not overly burdensome, only targeted at an entity "close to" the case at hand, only targeted at an entity whose actions are "necessary" and where there's no other way to carry out the jurisdiction, rather than, say, just convenient) and the writ must have some kind of antecedent in common law, which is a somewhat fuzzy topic, but it boils down to "the writ can't just be pulled out of thin air, there's a set of traditional writs and it should appear to be consistent with that set".

> One of the amicus briefs in this case was submitted by 32 law professors, who pointed out that this violates due process.

The mentioned brief is a very important read, and it's on the Apple's site here:

https://www.apple.com/pr/pdf/32_Law_Professors.pdf

From the INTRODUCTION:

"First, there is a jurisdictional problem. There is no basis in the record for this Court to assert Article III jurisdiction to issue or enforce the February 16, 2016 Order (“the Apple Order”). The search warrant’s authority is already exhausted and the government’s motion to compel recognizes that CALEA (“Communications Assistance for Law Enforcement Act”) does not provide sufficient authority to support the Apple Order. Rather, the government’s request rests solely on the All Writs Act. However, the All Writs Act is not an original source of federal jurisdiction and cannot support the government’s motion or this Court’s order. The All Writs Act merely provides a source of residual authority where such jurisdiction independently exists.

Second, the underlying Order is invalid because it deprives Apple of liberty and property without due process of law. The government initially took the time to seek Apple’s help outside the judicial process. Only after Apple declined did the government file its ex parte application, which did not allow Apple an opportunity to respond. Even though Apple has now had an opportunity to respond to the government’s motion to compel, the underlying Apple Order itself was issued in violation of due process and must be vacated.

Third, CALEA and ECPA (“Electronic Communications Privacy Act”) govern the substantive validity of the Order and set out telecommunications carriers’ obligations to assist law enforcement. Significantly, when Congress enacted CALEA, it exempted “information services,” which includes certain services that Apple provides, from that requirement. The Supreme Court has instructed that where a statutory scheme governs a particular subject matter, the All Writs Act’s residual power does not.

Finally, no court has ever issued a valid order that imposes an equivalent burden on a non-party. Our research has not found any case that uses the All Writs Act to require a third-party private entity to design and create new software. Some courts have compelled disclosure of already-existing information in cases where the All Writs Act is found applicable. In contrast, the order the government demands in this case would require substantial expenditures of time and talent above and beyond what is appropriate under the All Writs Act. This point is particularly alarming where Apple has made a deliberate decision to exclude the features that the government now demands."

Last week the former US "cyber czar" Richard Clarke called the FBI out directly for doing it solely for legal precedent, and stated that virtually no one even in the gov't were on their side: http://arstechnica.com/tech-policy/2016/03/former-cyber-czar... >>Clarke noted that Comey and the Justice Department were not getting support in their case from the defense and intelligence communities. "The Justice Department and the FBI are on their own here," he said. "The FBI director [Comey] is exaggerating the need for this, and the Attorney General [Loretta Lynch] is letting him get away with it."<<

But the weird thing is that, from the beginning, most legal experts thought the likely outcome would be that All Writs would be found too broad, so the FBI had to have been suffering from some hubris + bad legal council. So maybe someone with enough muscle finally called them out on it?

I find it more likely that this is simply a tactical decision: they already knew about this "new method", and were holding it in reserve so that they could cancel the proceedings if necessary (i.e., if Apple put up too much of a fight). They will keep trying until they get the precedent.

> They will keep trying until they get the precedent.

Don't they already have a precedent when they shut down Truecrypt some years ago?

Truecrypt is still active in the sense that it is both something that can be downloaded and the last security audit showed that there aren't any major flaws. Are you referring to a different service, perhaps?

I don't remember the FBI being involved with TrueCrypt at all, but I don't know.

There was a case where the FBI wanted to force someone to divulge his (I think) TrueCrypt keys, which was found to be a fifth amendment issue, in favor of the defendant.

There's no known precedent for the use of the All Writs Act in the manner the FBI attempted to use it this time:

https://www.apple.com/pr/pdf/32_Law_Professors.pdf

"No court has ever issued a valid order that imposes an equivalent burden on a non-party. Our research has not found any case that uses the All Writs Act to require a third-party private entity to design and create new software. Some courts have compelled disclosure of already-existing information in cases where the All Writs Act is found applicable. In contrast, the order the government demands in this case would require substantial expenditures of time and talent above and beyond what is appropriate under the All Writs Act. This point is particularly alarming where Apple has made a deliberate decision to exclude the features that the government now demands."

Or forget about precedent and just go to Congress:

http://thehill.com/policy/cybersecurity/273482-senate-intel-...

And:

https://news.ycombinator.com/item?id=11288030

I assume they are not particularly interested in the phone itself. Rather, that they have been shopping for a situation with the character of this one so as to try their luck at pushing their capture rights.

Don't worry, one will arise.

So why did they push it so far? Was it really just a game of chicken where the FBI wanted to stare down Apple?

It's a game they have never lost before, it doesn't seem so far fetched. Apple pushed back hard.

This one time, this specific case, Apple pushed back. They need to be commended for that, but let's not forget all the other times (and there are very many) when they (and all tech companies) just handed over the data when given a valid warrant.

Companies will always comply with valid warrants for data in their possession, and it would be ridiculous to expect them to do otherwise.

What made this case different was that it was not about a simple warrant for data held by Apple.

> Companies will always comply with valid warrants for data in their possession, and it would be ridiculous to expect them to do otherwise.

Remember, the requirement for a warrent doesn't apply to non-US persons outside the USA. Us europeans have no protection from the 4th amendment for data held in US servers. And in fact, the US gov is trying to claim we don't have protection if it's held in a non-US server run by a US company!

The XIV amendment says:

"nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Which sounds like all people should have the same protection from unlawful searches ... as I'm a conditional law novice can someone briefly outline why this doesn't stand, what removed the protections for "all people" (note the preceding section refers to citizens, so all people is clearly a distinct class).

Is it that the federal nature of the FBI means they are above state law?

This could be a good starting point for research: A 2015 study from the European Parliament - "The US legal system on data protection in the field of law enforcement. Safeguards, rights and remedies for EU citizens"[1]

Specifically it says:

> With regard to EU citizens, the [US] Supreme Court has held that foreign citizens resident abroad are not covered by the Fourth Amendment.

It appears to be based on this Supreme Court case[2]: United States v. Verdugo-Urquidez

[1] http://www.europarl.europa.eu/RegData/etudes/STUD/2015/51921... [2] https://en.wikipedia.org/wiki/United_States_v._Verdugo-Urqui...

The 14th amendment is not relevant to actions taken by the FBI. It's an arm of the federal government, and the 14th amendment serves mostly to clarify that state governments (in addition to the federal government) must refrain from violating rights granted to US citizens through the constitution.

However, the FBI must abide by the 4th amendment, which specifies that warrants are needed for searches. The issue of whether data of foreigners located on US soil is subject to warrant-less search/inspection is a matter of interpreting the 4th amendment.

So data from a foreign national held in a computer in a particular State isn't within that states jurisdiction?

If the 4th requires warrants and the 14th requires state to treat all people as having equal protection under the law in their jurisdiction I don't see where the FBI can go [legally speaking] to do warrantless search of foreign nationals.

In short, how then can a State allow the FBI to operate within its jurisdiction in a way that doesn't provide all people equal legal protections. The State would have to prevent the FBI from operating?

Thanks for any further insights.

> However, the FBI must abide by the 4th amendment, which specifies that warrants are needed for searches. The issue of whether data of foreigners located on US soil is subject to warrant-less search/inspection is a matter of interpreting the 4th amendment.

And the interpretation is that a warrent isn't needed. The 4th doesn't protect me.

Sure, but watch how the message will change from "Company obviously hands over data when given a warrant" to "company doesn't hand over data when given a warrant; they really care about privacy".

What is the alternative available to Apple, or any other technology company, when given a valid warrant for someone's data that isn't blatantly ignoring the law? I'm honestly not sure what you are suggesting.

Apple has already given them Farook's iCloud backups, just not recent ones since they don't exist. If Alice was murdered, and Bob was circumstantially implicated, but had an iPhone that had some kind of data recorded that placed him at the time and location of the murder, what law exists for Apple to protect Bob's data if that data was uploaded to Apple for backup purposes?

This discussion is a bit confused. There are plenty of "valid" subpoenas or search warrants which are squashed after being opposed in court. I'm not sure if the other commenters really believe that no company should ever oppose a search warrant, or if they think "valid" search warrants can't be opposed, or what. But opposing an over-broad or otherwise screwed up "valid" subpoena or search warrant is a necessary part of the American legal system.

Correct. That's what I was trying to deduce, the difference between a valid warrant (eg, a warrant following CALEA for communications data stored on a third party server), and a warrant that is currently being argued as invalid (eg, a warrant for Apple to create software that allows some party to brute force a PIN without restriction).

Sure, it would be nice for Apple to oppose even "valid" warrants for iCloud data backups, because I trust them to keep my data safe on my device, so why should I have a reduced expectation of privacy when using their services. After all, they have billions in cash in some Scrooge McDuck mansion just waiting to be spent on lawyer fees, right? /s

Sorry, do you think the first example shouldn't be subject to opposition? The search warrant could still be over-broad or defective in one way or another, even if it jumps through the CALEA hoops and was signed by a judge. The concept of "valid" that you're using is fuzzy and unclear.

I agree that the second case - court order to create new software - is a lot more obvious and clear, and deserves opposition in court.

The reason I'm being so pedantic is that it's important to disagree with the notion that corporations should roll over in any situation that involves claims of terrorism. Lots of people think that, but it throws away an important part of our legal system.

Absolutely. But if the court challenges fail over this hypothetical warrant, there's a reasonable expectation for compliance. We live in a rule-based society. It works because people, and especially the government itself, are expected to follow those rules.

Apple got a valid warrant here! But they fought back against this one.

I'm not saying they're wrong to obey court orders.

I'm saying that people will be saying that Apple fight against court orders when in fact they don't usually fight the court orders. They normally give out the information.

No - in this case it was clear to Apple that the warrant was not legal, which is why they chose to fight.

When warrants are clearly legal, there is nothing they can do to fight them.

They only give out the information they are legally forced to do, and are doing everything in their legal and technical power to reduce that as much as possible.

Yes. Exactly. Apple and every one else (company or individual) is required, by law, to comply with valid warrants. When one receives a warrant or any kind of legal request that they feel is invalid, the only way to challenge that potentially illegal or invalid request is to not comply and then let the courts decide. If there is existing precedent then they could be held in contempt. If there isn't precedent then hopefully one will be made by the result of the challenge.

The idea that the Govt can only issue "valid" warrants is flawed. The Government is just people, and like everyday citizens like myself, we're perfectly capable of breaking laws, either unintentionally (eg, giving a lift to a friend who has undisclosed controlled substances on their person (state dependent)) or intentionally (eg, murder).

I definitely expect Apple to comply with valid warrants to the extent possible. Is there a serious belief that Apple should flout the law? Is there a company in the world that obstructs justice in their home country?

Some technologists hold an anarchist view that the government is evil and should be displaced.

There are extremists within any group. These folks do not want to bother fighting the government for rights because they think the public is too dumb and the government will win that fight. In thinking this way, they become apathetic themselves.

They're not all bad. Some of them contributed a lot to free software. But some times the ideas are toxic and hold people back from their best.

For example, many believe Snowden deserves a full pardon, and anything short of that is wrong. Well, Snowden himself has said he would return to face a fair trial. So it seems we are divided on some issues, and that can weaken our side in fighting for digital rights.

Well, the USG considers Linux users to be extremists also. I think the phrase "One person's terrorist is another person's freedom fighter" applies. There should be no moderation in freedom (outside of the absolutes of killing another or dispossessing them of their property).

My response to these types of comments is precisely - when it is demonstrated that people make laws rather than governments in collusion with corporations - then I will pay attention.

> There should be no moderation in freedom (outside of the absolutes of killing another or dispossessing them of their property).

Why the focus on property rights? Much libertarian thought is expended on equating freedom to how you/others interact with property. It hardly gives credence to other man made rights that should be equally, if not more, recognized.

When you look at the group of people it dogmatically and absolutely resolves, and who funds think-tanks promoting the ideology, it is the well-propertied.

I find it hard to believe that all other freedom can be derived from and ensured by deifying property rights.

> Well, the USG considers Linux users to be extremists also.

That's interesting, since the National Laboratories employ tens of thousands of people who not only use Linux, but use Linux at work. Perhaps you should let the FBI know about this so they can revoke their security clearances?

> My response to these types of comments is precisely - when it is demonstrated that people make laws rather than governments in collusion with corporations - then I will pay attention.

This sounds like an excuse to selectively not follow any laws you don't like. The core law surrounding warrants in the US, which is sufficient for a lot of cases (no All Writs Act or FISA needed), are in the Constitution and some very early bills. Were these also made by collusions between the government and the corporations?

I don't blame you a bit.

A lot of the big tech companies had an inside look at the growing surveillance state far before the average citizen did. I think an argument can be made that the should have done more to inform the public.

Are you suggesting they go out of business like Lavabit? That is the stand you're taking when you disobey orders to keep government requests secret. And, I'm not sure a large corporation has that option. How could shareholders accept a fine for which they're not permitted to know the details?

Remember when Snowden first revealed the Prism program? All the tech companies issued similar statements saying they want to tell people more, but did not have permission from the US government. For example, Apple said,

> Like several other companies, we have asked the U.S. government for permission to report how many requests we receive related to national security and how we handle them. We have been authorized to share some of that data, and we are providing it here in the interest of transparency. [1]

Also, I'm sure Yahoo would've loved to rally support from its users when the government was threatening to fine them $250,000 per day for refusing to hand over data, but they were not allowed to tell anyone [2]

I do believe the government was doing what they thought was right to protect public safety. However, they don't understand technology. Ted Lieu is about the only guy in Congress who does. We need a bit more representation there to have our voices heard, whether through electing Congressmen with CS backgrounds, independent lobbying like the EFF, or just better tech reporting and questioning in the White House daily briefs.

The existence of the FISA courts is something we should be scrutinizing more. Former NSA Director Hayden pointed out in one interview that we're the only country who has such secret courts. With these courts, democracy is circumvented. Currently, the public is not able to participate in the discussion of what's right on some major issues that have far reaching impact.

[1] http://www.apple.com/apples-commitment-to-customer-privacy/

[2] http://www.theguardian.com/world/2014/sep/11/yahoo-nsa-lawsu...

I'm only suggesting that Apple and others could have taken a stand in favor of privacy much earlier, and that their decision to do so now likely has more to do with their bottom line than any genuine concern for public welfare. BTW, hi Rob! You know me from the PPUA :)

Hi! =). Apple is free to design products as they wish, right? If their products still have security issues, the tech community will call them out on that. I bet the public will pay more attention to such critiques on Apple's security now too.

My understanding is people who are serious about security do not currently depend on Apple. Those folks use open source software and build it themselves. That said, I'm still interested in defending Apple's position (and not necessarily Apple) because I want our government to understand how to maintain public safety. Relying on access to people's phones, going forward, is not the right way to do that. You could argue that I am advocating privacy, but I'd say I am more in support of security.

Definitely, the US government can ban or backdoor every commercial encryption product on the planet, and those that are serious about security will still be using GPG, Tor, Linux/BSD, etc.

At a certain point, civil disobedience becomes a moral responsibility.

Plus, extremely large and powerful companies do not play by the same rules as the rest of us. You aren't going to see the government risk serious economic damage just to enforce some laws. Wall Street is a case in point. When huge companies decide whether to fight unjust laws or acquiesce, their choices have a major impact on the political equation.

I need to explain myself a bit more clearly.

For many years all tech companies have, as expected, complied with warrants. We don't expect otherwise.

Now, in this one case, Apple is fighting the warrant.

And some people are saying "Look how great Apple is; they really care about your privacy".

Well, no, not really. Apple isn't as bad as some, but they still gather too much data and they still (as they should) obey any warrant they're given.

This isn't a warrant, it's a request for far more than that. Apple is being asked to develop new code to actively defeat its own encryption measures.

It seems silly to bicker over whether a company is all good or all bad. Do you know any people who are all good or bad? Are you?

Hate or support the game, not the player. Stand up for ideas, not people.

Can you tell more what exactly superfluous data is Apple gathering?

I wouldn't be surprised. The fact that we don't hear about companies standing up like this every couple of weeks might imply that the standard response is compliance.

Which in turn could mean that the standard request is valid, or appears to be valid to the respective party.

This was probably the best possible case for them to try this with. They had a terrorist attack on American soil, and one involving Islamic extremists at that. Not only is there less than zero sympathy for the attackers, there's also an element of fear that you have here as well to go along with the hatred people tend to feel towards terrorists and mass shooters.

They probably thought that if it came down to a PR battle, assuming Apple didn't just roll over for fear of the PR consequences of "obstructing a terror investigation," they had it in the bag. Turns out? Not so much.

To set a legal precedent. Sort of a set it and forget it kind of law.

Would it be foolish to think they struck some kind of behind-the-doors deal with Apple?

Yes because it would open Apple up to someone leaking the details of that deal. After the stand Tim Cook took that would not go down well.

At the start of this Apple-FBI episode, didn't Apple initially ask the FBI to submit their request for unlocking software under seal? Doesn't that imply that Apple was willing to assist? Why else would Apple want to keep the request secret?

Apple said they would assist in unlocking the phone, not the software, under seal. Apple very well could have said they would not modify the software, prompting the FBI to go public and take the fight to the court of public opinion.

Why would Apple want that under seal?

If you had engineers threatening to quit if forced to write "GovtOS", it would make sense that there would be quite a few who wouldn't mind leaking that a behind-the-doors deal was made.

Not foolish, but would Apple really agree to the "we found another way to backdoor the phone" messaging?

What agreement? Apple doesn't nor should they care what the government does with the phone. If the government drops their suit, Apple has prevailed in their argument.

As in - the government is trying to push "Stuff you Apple, we found another way in" argument.

That isn't good PR for Apple.

Whether the government is just lying, in order to save face, remains to be seen - somebody with more knowledge of the technology at hand may be able to comment.

This needs to be decided once and for all.

A savvy judge would not allow the Department of Justice to cancel the hearing just to avoid setting a precedent.

It's a procedural thing, not really up to the judge.

Hilarious. Since when does the FBI announce when it finds a new vulnerability to exploit?

It's up against the biggest companies in the world, the US public, and the international community. And now it's backing down with its tail btw its legs, and telling a silly story to save face.

The following is the best analysis by far that I've seen about the All Writs Act and its application in these cases. It's from the Just Security blog, out of NYU Law School:

https://www.justsecurity.org/29634/readers-guide-magistrate-...

(I'd read the links to the articles in the blog itself.)

> All Writs Act may be scaled back or ruled unconstitutional

Totally agree with the broader point (I think they're scared of a restrictive precedent), but I don't think a law that's been on the books for two hundred plus years is going to be out and out declared unconstitutional. It's extremely broad in the number of domains of application but that doesn't necessarily mean that it grants overly broad power.

Also, the FBI would have to be able to sell something (their story) better than ... Apple Computer Inc.

If you are in the game of trying to sell something better than Apple, you better have a pack of actual wizards casting spells on your side ala Bewitched.

People love to bring up the fact that this act is rather old, but so are the amendments. I assume it is to say that the writs act is outdated, but what was its original rationale and why is it considered to no longer be constitutional?

I think it's more likely that they fear this use of the awa would be ruled incostitutional, not the law itself