The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgiving

[Kepler]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

Well, we now know for sure who will NOT be nominated...

He's also 67.

I would think there'd be a million Scaliettes running around out there. The man pulled an (albeit crackpot) entire judicial philosophy out of his arse. He probably had a clone army.

[unofan]

He's also 67.

I would think there'd be a million Scaliettes running around out there. The man pulled an (albeit crackpot) entire judicial philosophy out of his arse. He probably had a clone army.

I just reread the violent video game opinion from 2011; there were definitely areas of law where Scalia has it right without a doubt. I'd forgotten that that was a case where he probably drafted a concurrence that became the majority, "stealing" it from Alito.

He absolutely got it right on the first and fourth amendments more often than not. Ironically, he sucked at the fifth amendment (he hated warrantless searches, but also despised Miranda). He also never got the fourteenth amendment, which is where most of the hatred comes from.

He may have been the highest profile justice, but he was never the most conservative. That goes to Thomas and Alito.

[Kepler]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

He may have been the highest profile justice, but he was never the most conservative. That goes to Thomas and Alito.

538 did a piece on just that. Also, there's nice data here.

[FreshFish]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

The man pulled an (albeit crackpot) entire judicial philosophy out of his arse..

I think you are confusing him with someone else. "Emanations and penumbras" was 1973. Scalia didn't join the Court until 1986.

[unofan]

I think you are confusing him with someone else. "Emanations and penumbras" was 1973. Scalia didn't join the Court until 1986.

Scalia's internal contradiction is that he is a strict constructionist with laws (to the exclusion of legislative intent), but he loves to divine the founders' intent when interpreting the constitution (often to the exclusion of the words actually used).

And his originalist interpretation has a major flaw that the founders themselves recognized, and was the reason the bill of rights wasn't included originally: that by specifically enumerating some rights, some future idiot would assume other rights weren't protected.

[FreshFish]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

This standoff between Apple and the US government is really interesting. The US had to use a law from the 1790s (!) to try to compel Apple to create a backdoor to breach iPhone security, and in this case I am solidly with Apple in their refusal to comply. Congress really should intervene here and clarify the legal situation with a 21st century interpretation and not rely on 18th century precedent that hardly seems to apply.

There is no way that the backdoor will only be used once, and if it is invented, you know the Russian and Chinese governments will have a copy pretty quickly, and the repression of their citizens by those totalitarian governments will just get worse.

There cannot possibly be anything on the San Bernadino shooter's phone that is worth that cost. There has to be another way.

If this case winds up at SCOTUS, it will be really interesting to see how it is resolved.



The courts have consistently ruled that phone companies, cell phone service providers, etc. must turn over data that is within their own possession. However, they are asking Apple to be an unwilling tool of the government to hack someone else's data. That is a step too far. If the government has a warrant, their agents can enter and search my home, but the government cannot compel my neighbor to search my home for them (unless the neighbor coincidentally is a government agent). They can offer to hire the neighbor as their agent on a one-off basis, but the neighbor can still say "no" to that offer. We don't even have a military draft now, and conscription is not currently the law of the land for military service nor any other kind of government service either. I sure hope the first court ruling is overturned on appeal.




Here is an interesting twist on the PPACA ruling: Roberts overturned PPACA as unconstitutional under the commerce clause as a "reach too far" (before he re-wrote the law to make it a voluntary tax rather than a forced compulsion); wouldn't it be something if that ruling were used (among others) as precedent to deny the government's demand as a "reach too far" in this case?

[LynahFan]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

I really, truly do not understand the slippery slope argument. Apple will create a piece of software on a standalone machine that interfaces with the phone data to decrypt it. Nobody can hack onto that computer to steal the decryption software, and Apple clearly does not want anyone else to get it. What's the problem?

[GrinCDXX]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

I really, truly do not understand the slippery slope argument. Apple will create a piece of software on a standalone machine that interfaces with the phone data to decrypt it. Nobody can hack onto that computer to steal the decryption software, and Apple clearly does not want anyone else to get it. What's the problem?

That's not quite right. Apple isn't being asked to decrypt the data, they're being asked to create a modified version of their OS that disables some protections that make it not feasible for the FBI to brute force the password themselves.

I think the slippery slope argument is more along the lines of once the government knows this approach works, they're just going to employ it whenever they feel like it.

[FreshFish]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

I really, truly do not understand the slippery slope argument. Apple will create a piece of software on a standalone machine that interfaces with the phone data to decrypt it. Nobody can hack onto that computer to steal the decryption software, and Apple clearly does not want anyone else to get it. What's the problem?

it has less to do with the specifics of this particular situation than the broader precedent. Never before has the federal government been granted the authority to conscript a private company to do its work for it. Even during our most difficult times, either it was voluntary (e.g., World War II), or it was shot down by the Court (e.g., Truman's attempt to have the government take over the steel industry in 1952, Youngstown Sheet & Tube Co. et al. v. Sawyer).

What part of "unreasonable search and seizure" is so hard to understand? It is a "seizure" of Apple's resources. There is no legal basis. If the government wants that power, Congress needs to pass a law to authorize said power, and even then it would be an interesting case.

If it were a state agency and not the federal government, the rules might be different, since states have regulatory rights denied to the federal government (shorthand: feds can only regulate activities while states can regulate people, or so I am told by those who supposedly know better than me). I don't know but I still would not like it at all, not one bit.

What next?

An automobile company is failing, and so the government seizes its resources, pre-empts the bankruptcy code and stiffs bondholders to benefit employees, and takes over all of its resources too? (oh, wait, never mind about that one. )

I read somewhere that Hank Greenberg challenged the federal seizure of AIG and the courts so far have let the case proceed. It has not been dismissed either. So there are several precedents here and as far as I know every one of them has been against the government to protect private property rights from government confiscation. I'm sure if there is one obscure case to the contrary unofun will jump in immediately to contradict me.

[LynahFan]

That's not quite right. Apple isn't being asked to decrypt the data, they're being asked to create a modified version of their OS that disables some protections that make it not feasible for the FBI to brute force the password themselves.

I think the slippery slope argument is more along the lines of once the government knows this approach works, they're just going to employ it whenever they feel like it.

This makes no sense to me (not a software guy). They're going to install a new OS on the shooter's phone? Without first breaking into the phone and wihout losing the data? Even if that were true, how would that affect a single other phone?

The government is not trying to force Apple to include a backdoor into every phone in perpetuity.

[geezer]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

The government is not trying to force Apple to include a backdoor into every phone in perpetuity.

According to Apple, that's exactly what it would amount to. Every phone is not made with a unique OS, so once you create the program to void its security, every phone they've ever made is instantly compromised by the existence of the override.
For some reason they don't trust the government agency that is forcing them against their will to invent it, to follow through with promises to use it once and then destroy it. I wonder why?

[bronconick]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

The irony is that this all important info they want is gone anyway. If they create the update the FBI wants, this single phone won't get it anyway because you have to sign into it to get said update and they can't. This is for the next time, which is why Apple is dragging their feet.

[LynahFan]

The irony is that this all important info they want is gone anyway. If they create the update the FBI wants, this single phone won't get it anyway because you have to sign into it to get said update and they can't. This is for the next time, which is why Apple is dragging their feet.

Well if that's the case, it's complete crap and the government should cram it.

It really would help if there were such a thing as a journalist with a clue so they could explain the technical details of exactly what the government wants.

[Slap Shot]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

According to Apple, that's exactly what it would amount to. Every phone is not made with a unique OS, so once you create the program to void its security, every phone they've ever made is instantly compromised by the existence of the override.

None of my Apple products have ever spontaneously been changed - the upgrades only occur when I've initiated them after being advised of the available patch. So therefore the only way for the update to be available would be for Apple to publish it which of course they would never do in this case. Of course if the phone can't be hacked and yet the only way for it to be hacked is via an upgrade there's a chicken and egg conundrum that again makes me question Apple's public cries about this situation. Third I can't believe they'd be myopic enough to create a system in which it's an all or nothing process. Fourth if they've been able to keep their system secret enough to keep it out of the hands of everyone else why couldn't this hack be just as secure? If the government has a right to subpoena the records of someone on the grounds of terrorist threats there is no Pandora's box if Apple can bust a singular product which I don't doubt for a second can be done.

[burd]

Re: The Power of the SCOTUS VIII - I am certiorari we'll be arguing until Thanksgivin

What part of "unreasonable search and seizure" is so hard to understand? It is a "seizure" of Apple's resources. There is no legal basis. If the government wants that power, Congress needs to pass a law to authorize said power, and even then it would be an interesting case.

I don't share your fear of all things federal, but those who peddled fear of boogeymen with hypodermic needles and bomb vests have already emasculated and 4th Amendment.