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

[joecct]

What does this have to do with criminal procedure?

The courts are not going to rule that all phone companies have to build back doors into their products. It will be a limited ruling, whose scope encompasses precisely one serial number of one model. When the government claims one house by eminent domain, they don't claim all houses.

Tell that to the citizens of New Haven.

 

[dxmnkd316]

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

Are you joking? The government can compel you to do all kinds of things. Eminent domain, injunctions, restraining orders, etc, etc.

And none of those are compelling you to do anything. They are taking away your property with compensation and the other two are preventing you from doing something.

 

[St. Clown]

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

Since when do our intelligence and investigation agencies show restraint in anything they do? Edward Snowden laid that for us to see plainly enough. If we open Pandora's box, the tech will be used again and again. They will keep using the tech with or without the providers' (assuming more than just Apple get dragged into this over time) knowledge.

 

[Kepler]

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

We got two new kittens today. We first saw them last Saturday, so we named them in honor of Scalia, "Casey" and "Miranda," after two decisions he violently hated.

 

[unofan]

What does this have to do with criminal procedure?

The courts are not going to rule that all phone companies have to build back doors into their products. It will be a limited ruling, whose scope encompasses precisely one serial number of one model. When the government claims one house by eminent domain, they don't claim all houses.

Not at once, but the next time they want to take a house by eminant domain for the same or similar reason, it will be easier to do so because they can now cite to precedent.

 

[dxmnkd316]

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

We got two new kittens today. We first saw them last Saturday, so we named them in honor of Scalia, "Casey" and "Miranda," after two decisions he violently hated.

Hahaha. I love it.

 

[jerphisch]

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

No, it's not, but nice try. You're arguing that because we allow X, we will also allow Y. That's not what it going on here. This is the equivalent of saying "a man can marry a man once, so men can marry other men all the time." Which is what happens.

Criminal procedure is entirely precedence based. Court says cops can do A, and every cop in the country will do A. Courts say they can't do B, and cops around the country stop doing B.

No, I'm saying that accessing one guilty terrorists phone is fine, therefore accessing all guilty terrorists phones is fine. Much like gay marriage was specific to people not a gateway to hot man on sloth action, this should be specific to guilty terrorists.

 

[LynahFan]

And none of those are compelling you to do anything. They are taking away your property with compensation and the other two are preventing you from doing something.

Selective Service.

 

[geezer]

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

Selective Service.

Because for-profit corporations are people too, and the federal government should be able to draft them to work for the government during "wartime."

 

[dxmnkd316]

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

No sh!!t. It's a bogus argument. The one thing the government can compel you to do, except they can't. You can still register as a conscientious objector.

 

[FadeToBlack&Gold]

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

We got two new kittens today. We first saw them last Saturday, so we named them in honor of Scalia, "Casey" and "Miranda," after two decisions he violently hated.

Violently?

 

[LynahFan]

No sh!!t. It's a bogus argument. The one thing the government can compel you to do, except they can't. You can still register as a conscientious objector.

Good luck with that spontaneous, impromptu conversion to passivism... It's not as easy as you think - you actually have to be it, not just say it.

 

[dxmnkd316]

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

I think we've completely digressed and now you're missing the point.

 

[LynahFan]

I think we've completely digressed and now you're missing the point.

The point is that the government compels people and companies to do things all the time. This is not some completely new phenomenon with drastic, unprecedented consequences.

 

[dxmnkd316]

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

I disagree. It doesn't compel people to do things.

 

[Slap Shot]

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

The government has the right to subpoena the records, it does not have the right to force Apple to unlock the phone.

I agree - I'm saying only that I think Apple should.

Apple Can, Should, And Will Help FBI Unlock Shooter's iPhone

Can Apple unlock the shooter’s iPhone?

The iPhone is a model 5C, which is rather fortunate because is not as protected as newer models. According to security firm Trail of Bits, Apple can create an iOS patch for the iPhone 5C that allows multiple attempts at the password without blocking it, slowing down password attempts, nor erasing encrypted data.

Will the patch compromise privacy?

Well, if developed with privacy in mind, it shouldn’t. Apple can develop the patch specifically for the shooter’s iPhone. Apple could demand conditions under which the patch cannot be accessed by the FBI. For example, the FBI is open to the unlocking happening in Apple premises, so Apple could install the patch, unlock the iPhone, and erase the patch before the iPhone is back in the FBI’s hands.

Should Apple comply?

So which option is riskier and costlier? I would say non-compliance, given that, technically, it is possible to ensure the patch is only used for the shooter’s iPhone. A future terrorist attack with an iPhone could lead to costly legal and PR nightmares. Plus, the FBI and the courts will see through Apple’s ability to comply while minimizing the risk of privacy violations for its customers, so they will not back down. Apple is not in a position to fight hard legally, and if it does it may just incur substantial legal expenses for an unlikely win. In a nutshell, it should comply.

The advantages of Apple initially refusing to comply are:

If Apple had complied right away, it would satisfy the FBI, those who lost their relatives in the San Bernardino incident, and those more concerned about future terrorist attacks than about iPhone data security. But privacy watchdogs and advocates would be unhappy, as well as other major tech firms which would be subject to hack their own hardware and software as Apple sets a precedent, with the costs associated. Not surprisingly, Google GOOGL +0.69% quickly and publicly backed Apple in its refusal to comply.


[*]It caters to the otherwise unhappy privacy advocates and tech firms. Since the FBI and the courts are unlikely to back down, Apple becomes a victim and can pass on the blame to the government

[*]The current media coverage represents global, massive free advertising that the iPhone is very secure, with the headline ”Not even the FBI can hack an iPhone.”

[*]Apple will come across as a fighter for consumer privacy and iPhone security, consistent with its brand.

 

[FreshFish]

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

Because for-profit corporations are people too, and the federal government should be able to draft them to work for the government during "wartime."

Yes, I think I said pretty much the same thing, in that Congress needs to clarify the situation by passing an appropriate law to provide the requisite authorization. Current law does not allow the government to compel Apple, a new law very well could.

We'd first need to get an applicable law passed by Congress. that would change the nature of Apple's arguments considerably.

 

[FreshFish]

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

The point is that the government compels people and companies to do things all the time. This is not some completely new phenomenon with drastic, unprecedented consequences.

Except that the section of PPACA in which the government tried to compel people to purchase health insurance was overturned as unconstitutional, so there already is precedent in saying that government compulsion to purchase a specific product is not okay (PPACA was then allowed to stand as a voluntary tax rather than a mandated purchase).

So there already are precedents on the books that limit the extent to which the government can compel people and companies to do things.

In the case of Apple, it may or may not be a constitutional question, at this point it is a legal situation that can be rectified with Congress passing a new law. The one the feds are citing from 1798 or whatever does not appear to be particularly on point.




I wonder if state law in CA has any applicable statutes already in effect? Maybe the feds could find a friendly state prosecutor and state court and have it be a state action rather than a federal action to get Apple to unlock the phone??

 

[Kepler]

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

Violently?

Passionately. Which kinda makes sense with Casey if you've got the whole OH NOES TEH BABIES!!! weirdness, but having a problem with Miranda tells me somebody's gone to the dark side of the moon.

 

[Kepler]

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

The politics of the nomination, with a gratuitous shot at a hockey state coming out of nowhere.