> My not-a-lawyer read on the whole warrant canary thing is that it would never fly in front of a judge
I'm not sure that the US government would _really_ want to take Apple, of all people, to court. Currently, the general public is not particularly aware of this type of warrant; that would certainly change with the inevitable media circus.
> if there has in fact been a 215 order by the time the next report rolls around, then deliberately removing the warrant canary language is tantamount to revealing the order's existence, which is illegal.
The government could certainly try to make that point, but they'd have to go to court to do it.
> The judge has indicated skepticism over the government’s demands. Initially, Apple agreed to a formal order to help the Justice Department gain access to Mr. Feng’s phone, but Judge Orenstein balked, questioning whether the All Writs Act could be used that way. He invited Apple’s lawyers to raise objections.
This is curious, because I was under the impression (due to the lawyers on HN) that this is basically an open and shut case in the eyes of the law: the government has the ability to compel Apple to act. Why would the judge think differently?
(I'm genuinely curious as to the legal aspects of this and not taking a side either way.)
But why couldn't it? All the executive orders so far have been pretty draconian. What would exactly stop them from explicitly stating that Apple is not to signal everyone using their canary and to leave it there. Maybe even providing an assuring immunity that they will be not prosecuted for making false statements in company's reports.
> > In my personal opinion, when apple began these scans, they effectively became an agent of the state.
> [I think you mean] it's illegal in the US for private services to conduct mass scanning for CSAM and notify the government
Nearly. If the government is requiring this then it becomes improper.
Not that Apple would be breaking the law, but that the search would be by a government proxy and thus inadmissible.
imho with the FBI's past pressure on Apple it doesn't seem unlikely that this is somewhat coerced.
> I would have expected it to have been brought up by the defense in a trial and stopped as a result. That it still happens is a strong indicator that it is, in fact, not illegal.
If their lawyer doesn't feel they could win with this argument they won't waste time bringing it up. Their job is defense not legal correctness.
> Frankly, it sounds like the same nonsense "sovereign citizens" get up to.
SovCits argue about stuff like that they don't belong to the government because they spell their name in all-caps, not about actual constitutional principles.
They would be fined, or executives charged with contempt of court and possible jail time. That would also make the Judge mad at them, and not likely to agree to anything they ask.
The Judge has a LOT of power - he can impose some really high fines, and that's just to start with. Apple will not mess with him.
> I don't know what the next step of FBI will be.
Not FBI. If the Judge says to do it (so far he has not), he will be the one making sure they do it. The FBI will just complain to the Judge if necessary, not actually do anything.
> Can they say okay give us the device and we will give you the data but not the actual 'modified os'?
They can ask the Judge if they can do that. It's up to the Judge to say yes or no. They'll probably have to explain why it's better that way, and that the end result would be the same. The FBI can then argue against it, (or accept it). The Judge will listen to both sides and explain his reasoning in a paper.
You might want to try to read all the stuff the Judge writes in this case. Ignore what the lawyers for Apple or FBI write, read just what the Judge writes (he will summarize what the lawyers wrote, so you won't miss anything).
> The law is very broad on this, and subject to interpretation by the judge.
I'm sure the US government would just _love_ to go to court with Apple over this. That wouldn't be hideous publicity for a currently little-known provision of the law at all...
> This isn't correct. More precisely, it does not address obtaining court orders.
Please explain how the FBI could legally compel Apple to do something without a court order. If it's the only way it can happen then it's kind of implied.
> If the EPA tells you that you can't dump in the river, and you dump in a river, then they can prosecute you and send you to jail. But this is very different then getting a court order to do something as part of an investigation.
The primary difference apparently being that in that case there is something the law says you can't do, whereas in this case there is something the law says the government can't do.
>The problem is, Apple has to fight this now because once they've done this once, they're in a losing position when the government wants it done 800 more times.
Since each of those 800 times will used after court issued a legal warrant, that is actually good.
That searching the effects of a dead terrorist is acceptable? I really don't find this objectionable in any way whatsoever.
> Apple could no longer argue they had to create something to fulfill the warrant, since it was already created.
Good, Apple's desires to not be subject to the laws of nations where they do business has historically hurt their customers. Even now people argue that Apple are doing this to protect their customers of which there's no evidence whatsoever.
> How would Apple be able to say yes in this case, but no in the next case?
Well, because an actual judge would be required to make such a decision, and in each case, the merits would be assessed separately. So Apple could say no, and a judge might agree with them "right, the government has no grounds here".
> sent expensive lawyers to lie to the judge about the judge's power to subpoena digital evidence.
You're being unreasonable here since it is a very grey area.
If Apple is compelled for example to hand over encryption keys to a judge (which often means a bunch of junior lawyers) then that would infringe everybody's right to have their information be secure.
>> why you think CALEA would apply to what Apple announced?
Read what I stated. I said no such thing. I said that CALEA shows that companies can sometimes be forced to be do things they do not want to do, to take actions at the behest of law enforcement that they would not normally do. CALEA would clearly not be applied to apple in this case. It would be some other law/warrant/NSL that would force apple to do something it normally would not do. CALEA stands as proof that such things have long been acceptable under US law.
> but as the law stands right now, what Apple is doing is legal.
Thats an interesting prediction. So you are claiming that the judge in the Apple vs Epic case will not rule against Apple, in any way, on any of its behavior.
That is a strong claim for you to be making. And since you have made this prediction, I will be sure to come back to your comments in a couple months.
Because I am pretty sure that the judge will rule against Apple on at least some issues. Probably not the whole thing. But there will be some things that Apple is doing, which will be ruled illegal.
The real question is, if this happens, will you back off on your extordinarily strong claim, that absolutely nothing that Apple was doing, will be deemed illegal by the judge? Will you admit that maybe you didn't think this all through?
> Apple is very likely trying to get ahead of what's likely to be requests from the government that they won't be able to just not abide by
No. Don't make that excuses for them. If it were true it would be a shocking revelation which might result in thousands of cases being overturned.
If the NCMEC searches by providers are being done as a result of government coercion then the fourth amendment requires there be a search warrant. Since there isn't one, these searches would all be unlawful if there was coercion.
Thus far, tech companies like Google and AOL have gone out of their way to testify that there is no coercion (I haven't found a case involving Apple).
If there were coercion it would be a shocking conspiracy. I wouldn't argue that it's impossible: The USG has done some shockingly unethical and illegal things in the past but it fails occams razor.
Moreover, the excuse doesn't actually make apple look better: Instead of being a corporation compromising user privacy and security for commercial gain, they'd be an active participant in a conspiracy to violate the US constitution.
Apple is doing this because they believe they'll make more money this way, and because they believe the complaints raised here about people rejecting devices betraying their trust are fundamentally inconsequential.
Show them otherwise, don't make excuses. Don't blame the government. The government may well be to blame too, but Apple's actions are apple's fault.
This comment comes across as being from someone who has never paid attention to Apple’s business tactics. No offence.
Maybe I’m on the opposite end and too cynical, but I don’t think we know a) whether Apple will practice malicious compliance in a way that makes the ruling meaningless or b) whether they will comply at all.
And if they do comply in any way, we don’t know how long they will keep it that way before clawing back little by little or simply ending that compliance.
> then become illegal after a Judge issues a ruling.
No actually. It would mean that it was already illegal. Thats why the judge would rule it that way.
Judges interpret the law. So yes, if the judge rules this way, then this means that you were wrong to claim that Apple's actions were not illegal.
And I look forward to coming back to this post when this happens, so that I can show you the explanation of why the actions were illegal on some fronts.
> Right now, what Apple is doing is legal.
Well if the judge says otherwise, on some fronts, we will be able to look back on this post, and re-evaluate then, won't we?
> become illegal in future.
No, becoming illegal would be if a legislator changed the law. Instead, this case is about interpreting existing law. So if the judge rules this way, then it means that Apple's actions were illegal. They did not become illegal. They were always illegal.
But, of course, I can already see people making up excuses, to ignore the judge, if the judge disagrees with then. If the judge disagrees with them, and she says that the actions were illegal, they have already made up an excuse as for why the judge is wrong.
Personally, I trust the opinion of the legal system. And that means that if the judge rules that some of the actions were always illegal, then that means that the judge is probably right, and you were wrong.
> it was clear that the Judge was repeatedly seeking some sort of bone to throw Epic's way
Ah, so then you agree that some of Apple's actions are illegal, and you take back your previous statement. Got it.
Glad you agree that the judge will likely rule that some of Apple's actions were always illegal.
> Do you really not understand how precedent works or are you being deliberately obtuse?
Please do not insult people on HN. This false dichotomy is offensive to me.
> The criminal act being investigated is irrelevant. They want data on a device in their possession that they have permission to search. That is all that matters.
Then why are you concerned about precedent? They have met all of the requirements to search this device. Apple is impeding them for no good reason purely to advance their corporate interests.
I'm not sure that the US government would _really_ want to take Apple, of all people, to court. Currently, the general public is not particularly aware of this type of warrant; that would certainly change with the inevitable media circus.
> if there has in fact been a 215 order by the time the next report rolls around, then deliberately removing the warrant canary language is tantamount to revealing the order's existence, which is illegal.
The government could certainly try to make that point, but they'd have to go to court to do it.
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