Apple vs the FBI

[alfred russel]

So you are arguing that Apple should say yes to the US, but no to others?

In essence, you are arguing that Apple has the power to evaluate the specifics of a demand, and decide themselves whether or not they should meet it or not?

In the US, isn't that what the preliminary court ruling has effectively said? No one has prohibited them from complying with the request, but they aren't being legally compelled to either (at this stage at least).

[Berkut]

I think they are being legally compelled - they have appealed that compulsion, of course.

[grumbler]

It requires them to create a set of code that didn't exist before.  That is something new as the prior precedent involved things like pen registers that phone companies already had and used for similar purposes.  It raises a question different from the one B is asking - namely whether the US govt actually has the legal authority to do this in the first place.

The US government can, at least in law-enforcement cases, require corporations to render them technical assistance to obtain information in pursuit of search warrants, so long as such assistance is reasonable and necessary.  I don't see how Apple's use of a sales gimmick changes that in any way, other than possibly making the technical assistance necessary but unreasonable.

[Martinus]

I don't think Berkut's question is naive or silly - it is simply a question of ethics/principles. The underlying assumption is pretty Kantian - according to one of two Kant's imperatives, one should always act according to a rule one would like to become a universal law.

[The Brain]

I don't think Berkut's question is naive or silly - it is simply a question of ethics/principles. The underlying assumption is pretty Kantian - according to one of two Kant's imperatives, one should always act according to a rule one would like to become a universal law.

It seems weird to me not to subscribe to the idea that different sovereign countries should have different laws on this matter if they feel like it.

[Martinus]

I don't think Berkut's question is naive or silly - it is simply a question of ethics/principles. The underlying assumption is pretty Kantian - according to one of two Kant's imperatives, one should always act according to a rule one would like to become a universal law.

It seems weird to me not to subscribe to the idea that different sovereign countries should have different laws on this matter if they feel like it.

It seems weird to me that you would conflate ethical behavior with legal behavior, especially in the context of comparative jurisprudence.

[The Brain]

I don't think Berkut's question is naive or silly - it is simply a question of ethics/principles. The underlying assumption is pretty Kantian - according to one of two Kant's imperatives, one should always act according to a rule one would like to become a universal law.

It seems weird to me not to subscribe to the idea that different sovereign countries should have different laws on this matter if they feel like it.

It seems weird to me that you would conflate ethical behavior with legal behavior, especially in the context of comparative jurisprudence.

From the OP:

If a sovereign state actor has the power to demand that a business take this action, are you ok with EVERY sovereign having that same power to compel? Or are there only some of them that should have that power, and how should Apple decide which?

Like any company Apple doesn't have to be philosophical on this matter. They just have to comply with legal requirements, the law is not their decision. Laws don't have to make sense or not be incredibly harmful. And that different countries can have different laws is heavily hinted at in the word "sovereign".

[The Minsky Moment]

The US government can, at least in law-enforcement cases, require corporations to render them technical assistance to obtain information in pursuit of search warrants, so long as such assistance is reasonable and necessary.

Let's unpack that.
The Court, in NY Telephone, held that the All Writs Act could allow an order to a third party to provide "meager assistance" to a criminal investigation where the company's facilities were being used to further a criminal enterprise.  The assistance in that case consisted of installing a pen register - a routine operation commonly carried out by the phone company for its own purposes in other contexts.  All other cases I am aware of also involved the application of existing resources or capabilities in a routine manner.  I am aware of no cases where a company was compelled to create or develop capabilities or resources that previously did not previously exist. 

The All Writs Act was a codification of a grab bag of common law writs.  The AWA does not create any new powers or authority, it only clarifies that courts can use any legally recognized writ in aid of its already existing jurisdiction.   For example, a court can issue orders requiring compliance with prior orders on threat of sanction.  But it cannot impose new relief.  Accordingly, NY Telephone was controversial because as the 4 dissenting justices pointed out, commandeering the assistance of the phone company, even if purely ministerial, was of a different nature than the underlying order approving the warrant to intercept.  In a sense this history is irrelevant, because however slim the majority, the case did go for the government.  But it matters to the extent the government now contemplates a significant expansion of court authority under the All Writs Act.  An already questionable decision made at the time (IMO) on the basis of practical expediency is now being sent down the slippery slope.

In short, this looks an example of hard cases making bad law.  There are some compelling circumstances, but what is being urged is novel and would stretch the statutory authorization well past the textual and contextual breaking point.  The FBI assures us this is a one off, unusual circumstance, but we have a system of precedential common law.  There is no such thing as a one off.

I don't see how Apple's use of a sales gimmick changes that in any way, other than possibly making the technical assistance necessary but unreasonable.

Not sure what the "sales gimmick" here is, but Apple put in an affidavit saying that compliance would involve a team of 6-10 employees working 2-4 works to develop and deploy the new code.  Perhaps this is an exaggeration but even taking it at discounted face value, it is an effort orders of magnitude different from NY Telephone.

[Admiral Yi]

So you see the principle argument against as the time and money required?

[The Minsky Moment]

So you see the principle argument against as the time and money required?

No the argument against is that the US is a government of limited powers and this ain't one of them.

I think as a matter of pure legal interpretation, NY Telephone was wrongly decided.  But it did make sense pragmatically.  The government had the power to install the pen registers.  The phone company could do it far more effectively and efficiently.  It seemed silly to say the government has the power to intercept but not to ask the phone company to lift its pinky finger.  The argument against was slippery slope and sure enough Justice Stevens thundered about King George III.  But the argument against that was that there was a limiting principle - namely "meager" assistance involving conduct of typical or routine operations using existing resources. 

Once you take the step of saying the rule can be extended to creating something new, in a manner that is opposite from the company's usual procedure, that limiting principle is blown up.  What's the new one?  If it is time and money, how is that weighed and decided - e.g. could the government take over the entire Apple enterprise for a couple hours?  A day?  A week?  A month?  If it isn't time and money, what is it? 

[dps]

I don't think Berkut's question is naive or silly - it is simply a question of ethics/principles. The underlying assumption is pretty Kantian - according to one of two Kant's imperatives, one should always act according to a rule one would like to become a universal law.

That's fine on a philosophical level, but on a practical level, it's kind of a moot point.  I wouldn't mind whatever the courts wind up saying is the US law in this case being the law worldwide, IF all other countries had the same legal systems and protections for human rights we have.  But they don't.

We will see the exact same thing in the US, writ small. If the FBI can compel, then so can the Rochester District Attorney.

Which is entirely appropriate, IMO.  I don't see the terrorist angle as being relevant--the question is (or should be) to what extent the authorities can compel someone to assist in any criminal investigation.  If allowing the FBI to compel Apple's cooperation in this particular case hurts Apple's business, too fucking bad--that shouldn't be something the court should consider IMO.

[Admiral Yi]

With all due respect Joan, everything after the no seems to be about yes.

[dps]

So you see the principle argument against as the time and money required?

No the argument against is that the US is a government of limited powers and this ain't one of them.

I think as a matter of pure legal interpretation, NY Telephone was wrongly decided.  But it did make sense pragmatically.  The government had the power to install the pen registers.  The phone company could do it far more effectively and efficiently.  It seemed silly to say the government has the power to intercept but not to ask the phone company to lift its pinky finger.  The argument against was slippery slope and sure enough Justice Stevens thundered about King George III.  But the argument against that was that there was a limiting principle - namely "meager" assistance involving conduct of typical or routine operations using existing resources. 

Once you take the step of saying the rule can be extended to creating something new, in a manner that is opposite from the company's usual procedure, that limiting principle is blown up.  What's the new one?  If it is time and money, how is that weighed and decided - e.g. could the government take over the entire Apple enterprise for a couple hours?  A day?  A week?  A month?  If it isn't time and money, what is it? 

I agree, but as I said in the other thread, primarily on the basis that being compelled to assist is a violation of the 13th Amendment.  I don't expect any court to actually endorse my view.  That seems to be fairly similar to what you are saying, but you're not putting it in such stark terms.

[The Minsky Moment]

With all due respect Joan, everything after the no seems to be about yes.

Hmm let me retry.

The argument against is the government doesn't have the power, period.

But in 1977 the Supreme Court ruled the government could nonetheless exercise the power, where the impact on the company was "meager"

Given that ruling the boundaries of "meager" have to be carefully policed.  Not because of financial impact on corporate America.  But because we are already in constitutionally dubious territory and thus the exceptional authority needs to be contained.

[The Minsky Moment]

I agree, but as I said in the other thread, primarily on the basis that being compelled to assist is a violation of the 13th Amendment.  I don't expect any court to actually endorse my view.  That seems to be fairly similar to what you are saying, but you're not putting it in such stark terms.

There are separate constitutional arguments even if All Writs Act applied.  But those don't even need to come into play if the statutory authority doesn't exist in the first place.