If this were happening in Brooklyn, maybe. But while People v Pena supports Apple’s case, and is a precedent, it’s not binding on the US Supreme Court. They can take it into account, but they don’t have to.
Where’d you get that from?
It’s not a court order “turn over the key”. It’s a court order - “here’s a lock. Figure out how to pick it.” In other words, they believe that the company ordered to do something has knowledge and expertise beyond the ability of average men and can devise a process that others can’t. And must spend weeks or months devising that process.
Can the court order someone to write a best-seller or a hit song from scratch? it’s not a matter of “produce what you have”. I see it as akin to “tell us the password”, a person (through a corporation) is being forced to divulge something they may or may be able to do.
What the FBI is seeking, besides a tool to use on lots of less obvious and sympathetic cases, is intel. Not evidence. Big difference.
With *intel *about who else to surveil, they can build cases against those others. And their associates. And *their *associates.
Seeking intel is the classic fishing expedition. But that metaphor was coined in the era of fishing with a pole & a line. Not with a big data trawl-net miles wide.
Historically there are pretty strong limitations on the police power to gather or retain intel on US citizens that’s not aimed directly at solving a particular identifiable pre-existing crime.
How much that remains true today for the FBI, CIA, DEA, etc. is a mystery to me. Others here may know.
FISA courts *seem *an example where they approve “warrants” that essentially read “trawl for anything and everything you can learn from any source with any connection, no matter how tenuous, to Person of Interest A.” Then add that data to your ever-growing network of connections and come back for fresh warrants on everyone you connect to PoI A.
It’s clear the OP is confused about the role of the court at this moment. But I don’t think anybody is confused about Apple’s or the FBI’s motivations.
It’s quite relevant, actually. Why is SCOTUS bound by an old New York case that is only binding on some state courts? In case you didn’t know, New York’s highest court is called the Court of Appeals. In any event, Pena (assuming this is the case you are referring to) relies on New York’s rules of procedure, which don’t even apply to the present proceedings against Apple. In any event, the FBI is not on a fishing expedition because the contents of the phone are relevant and material to an ongoing criminal investigation.
In short, you get 0 points.
I have not read this case.
But if you are correct that the decision comes from the New York Supreme Court, then it sets no controlling precedent.
Alone among the states, New York calls its trial court the “Supreme Court.” The intermediate courts of appeal are called the Appellate Division, and the highest court in New York is the Court of Appeals. The latter create controlling precedent in New York, so far as I recall, but in New York, a “Supreme Court,” case typically affects the parties before it only, and does not create controlling precedent.
Any case, even one under French or Japanese law, could be called “persuasive” precedent. Is that what you meant?
:: glares at RNATB and mutters about typing speed ::
I only just got into the office from a mediation, too. But you could always address this assertion…
…which is even weirder.
True. But not requiring a lot of typing.
No, it doesn’t.
Well, by the same token I thought my original response to the Pena thing was sufficient.
We need to get past the right of the FBI to search the phone, they have that and apparently not by court order. The problem is the FBI can’t search the phone, Apple said they can’t without exceptional effort.
If I may take your analogy a step further, the FBI find a gun safe with a combination lock. They call in the safe manufacturer and tell them to open the safe. They don’t have the combination, they can’t open it, it’s specifically designed to be “uncrackable”. So now the safe manufacturer has to go and buy a cutting torch, learn how to use it and with exception effort cut the top off the safe, which was specifically designed to be very difficult to do.
Can the court order this without a written law saying they can? If the safe manufacturer is required to break into any safe they make, then they are prohibited from making a safe that cannot be broken into.
This question is at the heart of the dispute.
The government is saying there already is such a law.
Apple – and I – say that the law upon which the government is relying does not give them that power.
The phone belongs to his employers, so the wishes of the heirs is beside the point.
The Judge made it pretty clear that the government would have to pay.
(are you not reading the case?)
However, I cant figure out why the FBI wants this. Sure, it might help a little in this case, but it would:
open every iPhone up to hacking & fraud.
Allow the government of China, etc to use the tool, also.
For the precedent?
The FBI wants another tool to do their job better. The wider implications of opening the phone in this way aren’t their concern. That’s someone else’s problem.
Does this his level of Court even set precedent? Bricker?
Well, maybe they’re hoping it goes all the way to SCOTUS. It’s a roll of the dice if it does, but there would then certainly be the chance to set a precedent.
Well if apple refuses to comply the us government can always threaten to nationalize them.
A federal district court’s ruling isn’t even binding in the district. But it will be binding on Apple, which is all the feds seem to care about. Not sure if that means my Android phone is super unsecure or what.
The source code for Android OS is open, so it is freely available, and while iOS has had notable vulnerabilities, Android has been rife with them, and additionally, no means to push updates automatically; users have to manually load OS and firmware fixes if they so desire. There are secure versions of Android OS that are comparable to the security of iOS but they are not the default installations that come on most consumer devices.
Regardless, if the precedent is established that Apple can be compelled to bypass encryption security (i.e. data scramble after ten failed attempts at the PIN) by the court then the same could presumably be applied to any other US country that provides a mobile operating system, and couple be more broadly applied to any other electronic data security measure.
This is not a new issue; the NSA and FBI have been fighting the dissemination of effective private encryption since Zimmermann’s PGP algorithm was first released and arguing the need to restrict encryption tools and source code (challenged in Bernstein v. United States, Junger v. Daley). However, the previous tack was to argue against dissemination to foreign agents via International Trafficking in Arms Regulations, resulting in the famous “This shirt is classified as a munition…” t-shirts with the RSA algorithm printed on it; the current effort essentially argues that a company has to comply with the effort to break encryption safeguards on their operating system even when in use by a US citizen, which is basically another way of instituting the same kind of security backdoor that would have been provided by the Skipjack algorithm/Clipper chip.
Meanwhile, a professional intelligence gathering or terrorist organization could use commercially available encryption and steganography tools to secure and conceal communications in a way that no one can defeat without a revolutionary advance in computing. Given the ready available and ease of use of these tools it would be surprising if they were not already in use. Creating a means to bypass security on a mobile devices reduces personal privacy in general without doing a single thing to affect this, and again, if investigators want to see who the perpetrators may have had communications with, a legal court-issued subpoena (or the data collection that the NSA appears to have been and likely continues to do) could be used to find calls and data exchanges.
A question for the legal minds: while I don’t question that there is an argument that Apple cannot be compelled to perform the creation of “new art” in the form of a modified operating system, how does this square with the provisions of the Communications Assistance for Law Enforcement Act of 1994, which required telecommunications providers to modify or install new equipment and software to facilitate electronic surveillance?
Stranger
CALEA applies to carriers, not device manufacturers.