> I suspect that the intelligence and law enforcement communities are afraid that if this case goes to the Supreme Court the All Writs Act may be scaled back or ruled unconstitutional.
It's not that the act is unconstitutional, it's that the interpretation of it that the DoJ has been selling to magistrate judges in ex parte hearings is extremely broad and would never survive appeal.
The Supreme Court has made it very clear in multiple rulings that A) The AWA is certainly constitutional and B) it is extremely narrow in its powers and it doesn't grant courts anything even remotely similar to the powers the FBI has been pressuring magistrate judges into believing it has.
So, essentially, by avoiding a highly publicized appeals smackdown, the FBI can still convince magistrates to issue wildly out-of-line AWA writs, and use those writs to pressure companies/people into doing things they wouldn't be held to if they had the time/money to actually appeal.
edit:
> The All Writs Act goes back to 1789 and is used for all sorts of things, like wire tapping, obtaining call and ISP records, etc
Also, I see this mistake a lot (I'm not saying you're making it, but it's a pretty common one). The AWA doesn't actually give the government the power to wire tap things, etc. There are separate statutes that authorize wiretapping. All the AWA does, per the Supreme Court, is give courts the authority to issue common law writs in the course of carrying out powers conferred by some other statute. The AWA is described as being a source of "residual" (secondary) power that only acts to help carry out some primary source of authority.
The DoJ has been pushing an argument that the AWA is a source of primary power in-and-of-itself in any area of law where congress hasn't passed a law saying a court can't do X thing, and the writs don't have to have antecedents in common law. This more-or-less contradicts any number of Supreme Court rulings. They've only been getting away with it because they get a magistrate Judge to issue them by asking for them in "emergency" ex parte hearings, meaning the other side isn't present to offer a competing argument, which the FBI excuses by arguing its a time-sensitive matter (even though it generally isn't). One of the amicus briefs in this case was submitted by 32 law professors, who pointed out that this violates due process.
I understand that in principle, but is that the end of it in reality?
I'm pretty sure NewEgg was recently taken to court by a patent troll, and after the troll realized that NewEgg fights instead of paying, they backed off. Then NewEgg sued to get a judgement that would guarantee this couldn't happen to them again.
I know this is a different venue and there are topical differences. But are you absolutely certain that there is no counter-action Apple (or any company, for that matter) can pursue to get a judgment about this?
Newegg's actions were different, in that the patent owner's dropping the suit didn't actually resolve the question of infringement. It was still out there, and the patent owner could re-file suit at any point in the future. Between now and then, if Newegg were in fact infringing, monetary damages would continue to pile up. So the uncertainty can have a pretty significant impact on business decisions and impair their ability to operate. A request for declaratory judgment seeks to resolve that uncertainty so that both parties can get back to normal.
For Newegg, the request accomplishes a few things. It lets them clear the air, indirectly help solve the resulting from the remaining suits against retailers selling Rosewill products, and it's the legal equivalent of spiking the football and giving the troll a swift kick in the nuts. Minero Digital now gets to defend itself in a Delaware court, absent all of the little advantages of East Texas. It's a rather bad break for them.
Honestly, if I were a patent troll, I'd be scared shitless to send a letter to someone like Newegg. With their stance on patent suits, they're exactly the sort of company that would preemptively file a request for declaratory judgment after they were contacted.
This court case is over. But the fight for encryption was never really in court anyway, it was in Congress and the White House. It became obvious over the past month that there is still a lot of education on encryption that needs to happen.
Boo. IANAL so I can't quite see where the harm may lie in requiring the "moving party" to see through what they started (if the defending party wants it, of course).
I'm all for it. If you bring suit the other party should be allowed to cause you to have to continue if you feel like dropping it. There is some potential for abuse there though, this is not a simple matter.
Counterpoint: if you want to sue everyone in the Unites States for pirating your porn, ask for $50 in settlement for dropping charges, and drop charges for anyone who shows up in court with legal representation, should the judge be sympathetic to you? Isn't a frivolous lawsuit a frivolous lawsuit anymore?
In addition to the counterpoint that newjersey brings up, we could also restrict this power to cases where the plaintiff is the government (local, state, or federal).
While nuisance suits from private actors can totally be ruinous, the potential for harm from government actors is so much greater.
It's not that obvious. Paul Klemperer (auction theorist) covers a similar question: what happens if the losing party has to pay the prevailing party's legal fees? Answer: the same amount will be spent on legal fees and the same cases will be brought forward.
> ...covers a similar question: what happens if the losing party has to pay the prevailing party's legal fees?
That's not at all a similar question. We're talking about staking the following strategy through the heart:
* Some part of USGov makes an overreaching legal demand using a really shaky (perhaps unsupportable) legal argument.
* They get a magistrate to issue an order in an "emergency" ex parte hearing
Now either:
* USGov presents that court order to a small and/or legally clueless business who says: "This is a court order! I have to comply with it, else I get in trouble!". USGov gets what they wanted and gets to bully another unwary victim with the same bullshit tactic
or
* USGov presents that court order to a larger and/or legally savvy business who examines it and says: "No. This is bullshit."
* That company goes to the court and tells the court why the order is bullshit
* The court quietly mumbles: "USGov... they're right, looks like it's bullshit."
* USGov goes: "Oops! We really didn't need that anyway!", withdraws the request, and retries it at a later day with a less savvy victim
So, completely different situations.
If USGov had to keep pushing such cases through if the defendant demanded that they be pushed through, what you'd get is what we get when Newegg fights patent trolls: evisceration of bullies, thugs, and the chicanery that permits them to operate.
The least that should happen in this case is the courts should ask the FBI exactly how did they found an alternative method to crack the iphones. If they don't, its unfair to Apple since they were potentially about to be ordered by the state to exploit a vulnerability themselves. IANAL of course, this is just my informed view based on existing facts.
In this case, moving party didn't drop it so much as stall for time. But, the judge also stayed the order that Apple had to help the FBI which telegraphs her intent. I think the FBI knows it lost this round and needs to find a face-saving way to get out of it.
There's the 'capable of repetition, yet evading review' exception to the mootness doctrine. But I agree this particular case is probably DoA. Maybe Apple can move for sanctions ...
IANAL. Why does the existence of the AWA allow such things that the FBI is trying to do? The AWA seems to be a very small piece of law, and using it in the way it's being used seems against the spirit of it.
It's frustrating enough that code impact is completely unrelated to code size. I would rather our law not be the same way, but who am I to criticize.
> IANAL. Why does the existence of the AWA allow such things that the FBI is trying to do?
Short answer: It really doesn't.
But if you can talk fast and convince magistrate judges to issue writs ex parte (no one is there to oppose you), you can get a lot of mileage out of writs that wouldn't survive an appeal. Most people won't have the time, money, or inclination to challenge them.
Even then, magistrate judges have been pushing back. The FBI's going to get slapped for this in the long run. But the long game here is that Comey was hoping public outrage against Apple would convince them to fold and play along with the writ, or nudge congress into giving it the powers it wants. The former clearly isn't working out, but the latter still may.
> The AWA seems to be a very small piece of law, and using it in the way it's being used seems against the spirit of it.
Bingo. It's also against established case law in the opinion of a very large number of people.
I don't think the Congress is really fond of what Comey's doing. The FBI is basically trying to bypass the legislative power by its own means, and to do that it aimed at a target that's too big. The Cupertino hippies might not be well regarded in Washington, but the fact that they are the biggest American company, the most valued and the most respected all over the world still touches some strings in DC.
The non-controversial part (that even Apple concedes in its briefs) is that the AWA grants courts the power to issue one of several particular forms of writs (court orders) that existed in British Common Law prior to the American Revolution, when it's necessary to do so in service of some other order that the same court has already issued.
The controversial part is what the AWA authorizes (if anything) beyond those pre-existing types of writs. Apple's position was "not much, if anything". The government's was, in effect, "anything not specifically denied by a law passed by Congress" -- which attracted heavy criticism, not only from Apple's lawyers, but also from many highly qualified lawyers who submitted amicus briefs.
But the FBI reports to Obama and Obama being an ex-law professor surely would've told them that their plan would be doomed to failure. Unless Obama wanted them to fail…?
It appears as reading in too much, because nobody knew if Apple would react so strongly and bravely, risking to be presented by the majority of the press as "helping the terrorists." Read, as an example of the view opposite of Apple's, how Bill Gates reacted:
I added that in an edit, but basically, it doesn't grant any powers by itself. It simply aids the court in carrying out its jurisdiction.
So, when it comes to wiretapping, there are specific statutes that authorize wiretapping in such-and-such circumstances. The court can then issue writs as needed to carry that out, provided the writs meet fairly narrow criteria (not overly burdensome, only targeted at an entity "close to" the case at hand, only targeted at an entity whose actions are "necessary" and where there's no other way to carry out the jurisdiction, rather than, say, just convenient) and the writ must have some kind of antecedent in common law, which is a somewhat fuzzy topic, but it boils down to "the writ can't just be pulled out of thin air, there's a set of traditional writs and it should appear to be consistent with that set".
"First, there is a jurisdictional problem. There is no basis in the record for this Court
to assert Article III jurisdiction to issue or enforce the February 16, 2016 Order (“the
Apple Order”). The search warrant’s authority is already exhausted and the government’s
motion to compel recognizes that CALEA (“Communications Assistance for Law
Enforcement Act”) does not provide sufficient authority to support the Apple Order.
Rather, the government’s request rests solely on the All Writs Act. However, the All
Writs Act is not an original source of federal jurisdiction and cannot support the
government’s motion or this Court’s order. The All Writs Act merely provides a source
of residual authority where such jurisdiction independently exists.
Second, the underlying Order is invalid because it deprives Apple of liberty and
property without due process of law. The government initially took the time to seek
Apple’s help outside the judicial process. Only after Apple declined did the government
file its ex parte application, which did not allow Apple an opportunity to respond. Even
though Apple has now had an opportunity to respond to the government’s motion to
compel, the underlying Apple Order itself was issued in violation of due process and must
be vacated.
Third, CALEA and ECPA (“Electronic Communications Privacy Act”) govern the
substantive validity of the Order and set out telecommunications carriers’ obligations to
assist law enforcement. Significantly, when Congress enacted CALEA, it exempted
“information services,” which includes certain services that Apple provides, from that
requirement. The Supreme Court has instructed that where a statutory scheme governs a
particular subject matter, the All Writs Act’s residual power does not.
Finally, no court has ever issued a valid order that imposes an equivalent burden on
a non-party. Our research has not found any case that uses the All Writs Act to require a
third-party private entity to design and create new software. Some courts have compelled
disclosure of already-existing information in cases where the All Writs Act is found
applicable. In contrast, the order the government demands in this case would require
substantial expenditures of time and talent above and beyond what is appropriate under
the All Writs Act. This point is particularly alarming where Apple has made a deliberate
decision to exclude the features that the government now demands."
It's not that the act is unconstitutional, it's that the interpretation of it that the DoJ has been selling to magistrate judges in ex parte hearings is extremely broad and would never survive appeal.
The Supreme Court has made it very clear in multiple rulings that A) The AWA is certainly constitutional and B) it is extremely narrow in its powers and it doesn't grant courts anything even remotely similar to the powers the FBI has been pressuring magistrate judges into believing it has.
So, essentially, by avoiding a highly publicized appeals smackdown, the FBI can still convince magistrates to issue wildly out-of-line AWA writs, and use those writs to pressure companies/people into doing things they wouldn't be held to if they had the time/money to actually appeal.
edit:
> The All Writs Act goes back to 1789 and is used for all sorts of things, like wire tapping, obtaining call and ISP records, etc
Also, I see this mistake a lot (I'm not saying you're making it, but it's a pretty common one). The AWA doesn't actually give the government the power to wire tap things, etc. There are separate statutes that authorize wiretapping. All the AWA does, per the Supreme Court, is give courts the authority to issue common law writs in the course of carrying out powers conferred by some other statute. The AWA is described as being a source of "residual" (secondary) power that only acts to help carry out some primary source of authority.
The DoJ has been pushing an argument that the AWA is a source of primary power in-and-of-itself in any area of law where congress hasn't passed a law saying a court can't do X thing, and the writs don't have to have antecedents in common law. This more-or-less contradicts any number of Supreme Court rulings. They've only been getting away with it because they get a magistrate Judge to issue them by asking for them in "emergency" ex parte hearings, meaning the other side isn't present to offer a competing argument, which the FBI excuses by arguing its a time-sensitive matter (even though it generally isn't). One of the amicus briefs in this case was submitted by 32 law professors, who pointed out that this violates due process.