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?
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.
While nuisance suits from private actors can totally be ruinous, the potential for harm from government actors is so much greater.
(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
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.
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.
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.
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.
http://www.usnews.com/news/articles/2016-02-23/bill-gates-on...
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".
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."
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.