That one phone the FBI wanted unlocked? Here are 63 more, says ACLU The FBI's promise that the San Bernardino iPhone case was a one-off is looking a tad hollow after the American Civil Liberties Union (ACLU) found another 63 ongoing cases of the government using an ancient law to enforce unlocking. "The FBI wants you to think that it will use the All Writs Act only in extraordinary cases to …
It's witnesses who give evidence under oath. Lawyers just make unsworn statements to the court. So the question arises whether "just one" was evidence (how much evidence would be presented in a warrant application?), a statement to the court or PR external to the court. Only one of these risks perjury.
Search warrants are issued based on sworn statements. See the fourth amendment text. The fact that a statement made in a warrant application later is found to be untrue (or no longer true) does not prove perjury, although it might raise suspicions, depending on the circumstances.
Also worth noting in the fourth amendment text is the requirement to "particularly" describe "the place to be searched, and the persons or things to seized." That pretty much guarantees that most warrants to search iPhone-like things will apply to one specific device only, as did the warrant and order that applied to the Farook iPhone.
Assuming the FBI's 75, and Manhattan's 175 are different phones; and assuming therefore that many more cities and district in New York have numerous phones in their hands waiting to be cracked, I feel it is safe to assume there are thousands of phones just in the state of New York, and probably tens of thousands or maybe hundreds of thousands throughout the fifty states that are liable to being forced open, with the number increasing exponentially as 'law enforcement' greedily harvest as many phones as they can in slobbering anticipation of the coming ability to pry into anyone's business without restriction.
"Apple's 14th amendment defence really doesn't seem so silly now."
I'm not a US citizen what with being British and am a little hard of hearing wrt US Constitution Amendments.
So, I thought I'd read it here (always good to get to the source): https://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=014/llsl014.db&recNum=389 . It seems to be granting rights to everyone who is born or naturalized in the US (who isn't a untaxed Indian.) IOW it seems to ensure that anyone who is a US citizen or born in the territory of the US (apart from untaxed Indians) is to be treated as citizen and should enjoy the same rights.
Article XIV also ensures that the States or any State shall be liable for any costs due to the loss or emancipation of any slave. So that's all right then: you don't want to have to pay for freeing slaves.
Am I off track here somewhere? What does this have to do with cracking (i)Phones?
I really don't know what I'm on about here but I got to the above link via https://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html which seems authoritative
Whilst we're off-topic, back when the British government abolished slavery for everyone in the empire except the East India Company (who followed a few years later), they compulsory purchased the liberty of those slaves.
This cost 40% of the government's total spend that year. That's a pretty huge commitment. Just saying, as it seems related to your article, can't see the Apple angle though.
That would explain Section 4 of the 14th Amendment "But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."
Maybe you should try rereading it in its entirety. That bit you threw out about untaxed Indians is under Section 2 of the 14th Amendment "Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed." That othert bit you threw out about freed slaves is under section 4 "But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void." Neither of those sections are relevant to Apple's use of the 14th Amendment as a defense. What you totally missed was section 1 which is the basis of their defense "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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." I'll let someone smarter than I do the exegesis for you if you still don't comprehend that.
It's exactly the "equal protection of the laws" bit. If I understand it correctly, given IANAL, the application here is that the government can't treat Apple differently from anyone else and I suppose everyone else is essentially allowed to write whatever software they like which implies that they aren't compelled to write particular software for the government. Also, as I understand it, software qualifies as protected speech under the 1st Amendment and compelling Apple to write the software would abridge their freedom of speech and this is the "protection of the law" to which Apple is seeking to be treated equally.
Maybe, you should have referenced the correct amendment in the first place, you know the Fourth Amendment that covers "Unreasonable search and seizure"? That's the applicable text.
The 14th does not apply here as these are all typically from court defendants who did something to warrant their phones being seized and searched. They are in the middle of "Due Process" (Court) having been served a search warrant (OR WRIT). Apple is "Obstructing Justice" by "Aiding and abetting" the defendant in his effort to prevent the phones from being opened.
The 14th Amendment applies as the government is using the All Writs Act (1789) to force, under penalty of law, the company, contrary to its commercial well-being, and its employees, against their will and conscience, to create new software.
The argument that code is speech would relate to the 1st Amendment argument, but the fact their labour is being forced against their will is what puts it at odds with the 14th. The government is effectively conscripting Apple employees, which is not really constitutional.
This time it's code, but what's next? Who can say, but as long as the government can claim it's somehow related to something it is concerned with then a sympathetic (bought) judge will sign off on it and if you have pockets less deep than Apple's you may not be able to go toe-to-toe with the FBI.
"Maybe, you should have referenced the correct amendment in the first place, you know the Fourth Amendment that covers "Unreasonable search and seizure"? That's the applicable text."
Read the bloody article. Apple raised a defence based on the Fourteenth. I was simply asking how does it apply.
"What you totally missed was section 1 which is the basis of their defense "
Admittedly I paraphrased Section 1 "It seems to be granting rights to everyone who is born or naturalized in the US" (my words)
I still don't get it and that smarter person unfortunately hasn't turned up.
I'm a bit off-topic on this one too, for the same "not being an American" reasons as you, but I understood it as a 14th Amendment defence because there is such a concept as Corporate Citizenship - meaning that corporations as a whole are extended the same rights as an individual citizen with regard to certain things.
They might be able to produce a custom OS tailored to just that one phone, but as the cases pile up they'd need to maintain multiple versions of that OS (for the various iPhone models) and track updates of the rest of the OS so there would soon be multiple OS versions of it too.
How much is managing all that going to cost, and how difficult will it be to manage the security of it? More importantly, at what point does the FBI file a case asking to be given a copy of the hacked OS that works on ANY phone, claiming that an urgent national security cases require dispensing with the delay of waiting on Apple to produce a custom version tailored at just one phone.
They probably would have to maintain different versions for sufficiently different hardware versions. It seems likely, though, that there would need to be a lot fewer versions of source code for the few modules that require change than there are major OS versions, save for individual iPhone specifiers that reasonably would be put in distinct header files in order to comply with requirements that each particular load operate only on the particular phone described in a warrant and court order for assistance. Managing security for the special software modules should not be harder or cost more than what they do for the public releases in the ordinary course of business.
It is a legal fine point, but pertinent, that it is not the FBI or police who seek warrants but the US attorney or a state attorney general or district attorney. These officials know better than to ask for unrestricted warrants, as do the judges to whom they must apply; and is very unlikely that a judge would grant a warrant for phones generally, as the fourth amendment pretty clearly forbids that. It is even less likely that Apple or another manufacturer would fail to resist such an order, or fail to get one overturned quickly.
It is entirely plausible that the government (in the person of a US or district attorney) would seek an All Writs Act order (assuming such orders eventually are determined to be legally appropriate) covering a number, perhaps a large number) of phones for which specific warrants had been issued. And there would be nothing wrong with that if each underlying search warrant was in order.
Told ya. RICO Act rides again.
Law enforcement says "special law use case" and you should be hearing "Swiss Army Civil Rights Workaround".
There used to be an old joke with the punchline "Coppers is cunning bastards", but my take is coppers is lazy bastards just like everyone else. Shortest path to the prize wins every time and damn the consequences.
Government spokespeople said the search warrant and court order related to the Farook iPhone applied to only the one device. Anyone who read the court order can confirm that to be a truthful statement, but one that makes no mention of the several hundred other iPhones which various law enforcement organizations have in their possession and for which they have, or expect to obtain, search warrants. While not exactly a lie, it was at least misdirection, since the expectation was that Apple would be asked to help execute them in the same was as in the California and earlier New York cases.
It is not clear why some people seem to find this shocking. Search warrants have been standard law enforcement tools for a long time, and they generally are issued one or a few at a time, in conjunction with specific investigations, as the Constitution and laws require. Despite the tendency to focus on terrorism in the case at issue, only a tiny fraction of search warrants, including those for iPhones and the like, are issued for that. Nearly all of them concern more common crimes like theft, embezzlement, illegal drug dealing (as in the otherwise similar NY iPhone case), murder, fraud, and official corruption.
It also is not clear why anyone should think it inappropriate to use the All Writs Act because it is old and being used in respect of new technology. The fourth amendment is only a about two years younger and nobody argues that it is old and therefore should not apply to the same new technology. If use of the All Writs Act is finally determined inappropriate, it probably will be because other laws govern the case or because the burden in whatever case is finally decided is too large (as Apple argued).
"Search warrants have been standard law enforcement tools for a long time, and they generally are issued one or a few at a time, in conjunction with specific investigations"
This is quite true and it's right that they should be case specific. In fact this is one of the problems with bulk interception - it doesn't have the specificity and safeguards of a search warrant; it treats everyone as a suspect and thus tramples on the presumption of innocence; that presumption is one of the safeguards of all those who are innocent.
But this wasn't about a search warrant. It was a warrant issued against a third party to compel them to do something, ostensibly just once but clearly, to anyone with a whit of judgement, as a precedent. And the end point of that precedent-setting trail would likely be a tool usable against any Apple device and corresponding tools against other devices which would treat everyone as a suspect etc.
It's great isn't it - we hear people like the FBI bang on about how laws need to be updated to address modern technologies but happily use a law first penned at the same time that the most effective long-distance communication technology essentially involved waving flags at each other and the cutting-edge of electricity production involved hooking up a series of frogs legs.
But, even so, ignoring the technical differences between then and now, there is a far better reason why this broad law should no longer be relevant, which is the LEGAL difference between then and now.
We are talking about a law that was written less than a decade after the Constitution!
Such a broad law, though potentially dangerous even then, made far more sense for a new country lacking an extensive series of legal history and precedents. That is manifestly not the situation to day and the US has had long enough to flesh out the legal system into a far more comprehensive one than it was a handful of years after they set down their muskets.
I.e. it was a rough but pragmatic stop-gap to help build the legal framework of a new nation which is now being twisted to ends that could not have been foreseen. That the law still exists shows exactly why we should always be wary of governments that want more powers - for whatever reason. Once they have them, they will not willingly give them up.
The All Writs Act, part of the Judiciary Act of 1789 that set up the federal courts subordinate to the Supreme Court, authorizes courts to issue orders to enforce other more specifically authorized orders such as, for instance, search warrants. It is not a general purpose authority to issue ad hoc orders or orders not supported in a general sense by the Constitution and the body of statutory and common law.
The notion that the United States in 1789 was without a well established legal framework is quite incorrect. The new nation adopted the common law framework of England with modifications the founders thought reasonable and appropriate for the new world environment and taking note of what they considered defects or excesses in that framework. A number of those modifications can be found in the first ten amendments, ratified in 1791. Thus, in the earliest years, the US had a fully functioning legal system with roots well over 500 years in the past.
So Apple and Google (and other similar tech companies) could move their unlocking technology to a subsidiary that exists outside of the US - France for example.
The FBI would have to send the phone to the company outside of the US and pay to get it unlocked. Google Unlocking Inc could simply refuse, or could charge a whopping 'Govt Special' fee. If Google wanted to be nice (or just wanted to rub the FBI's nose in it), they could donate the fee to the affected individual for legal costs.
"So Apple and Google (and other similar tech companies) could move their unlocking technology to a subsidiary that exists outside of the US - France for example."
France might be a dubious example. They seem very keen on no encryption just now.
France might be a dubious example. They seem very keen on no encryption just now.
China would be fun. "We cannot unlock it here. It is locked using Chinese technology which we are not permitted to export from China. The phone must be physically transferred to our facility in China".
There are other jurisdictions which would be even more fun.
In the near future such a facility might be the first business to relocate off-planet.
I think I have a cunning strategy to mitigate that scope creep, to some extent at least:
Agree to the process for the one specific case, at cost plus some reasonable margin. With the condition explicitly written into the contract that the fee for each future decryption project for a government body in the USA will double. (And without predjudice to contest each project, and the company's discretion as to how many items a project entails, etc.) The head of the FBI has to sign, judges have to sign, the president has to sign, it has to be cleared by congress, whatever makes it legal.
Donate a percentage of each subsequent project to a suitable charity, for example EFF.
That would hopefully restrict the feds from wantonly serving warrants, but still allow them to proceed in the event of a significant need.
Yep - many of my students query whether I've made a mistake when I teach about the Offences Against the Person Act 1861. The age of a law does not necessarily make it bad, but there does need to be close scrutiny of laws that are hundreds of years old. Times change, and the problems being addressed may not exist any more, or society may have changed to the extent that the initial aim is no longer acceptable. I tend to think that the All Writs Act falls into this category, but I haven't looked sufficiently at justifications given for its continuing existence, nor whether other jurisdictions have an equivalent law.
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