<story><title>U.S. Says It May Not Need Apple’s Help to Unlock iPhone</title><url>http://www.nytimes.com/2016/03/22/technology/apple-fbi-hearing-unlock-iphone.html</url></story><parent_chain><item><author>nostromo</author><text>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.&lt;p&gt;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., and now trying to force Apple to make malware for their own phone.&lt;p&gt;It&amp;#x27;s definitely a risk for the FBI to fight this battle and potentially lose a tool they use all the time.  Since there is probably no new info on the phone, it may not be worth the risk of making this a big fight with a motivated and well-financed adversary like Apple.</text></item></parent_chain><comment><author>msbarnett</author><text>&amp;gt; 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.&lt;p&gt;It&amp;#x27;s not that the act is unconstitutional, it&amp;#x27;s that the interpretation of it that the DoJ has been selling to magistrate judges in &lt;i&gt;ex parte&lt;/i&gt; hearings is &lt;i&gt;extremely&lt;/i&gt; broad and would never survive appeal.&lt;p&gt;The Supreme Court has made it very clear in multiple rulings that A) The AWA is certainly constitutional and B) it is &lt;i&gt;extremely narrow&lt;/i&gt; in its powers and it doesn&amp;#x27;t grant courts anything even remotely similar to the powers the FBI has been pressuring magistrate judges into believing it has.&lt;p&gt;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&amp;#x2F;people into doing things they wouldn&amp;#x27;t be held to if they had the time&amp;#x2F;money to actually appeal.&lt;p&gt;edit:&lt;p&gt;&amp;gt; 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&lt;p&gt;Also, I see this mistake a lot (I&amp;#x27;m not saying you&amp;#x27;re making it, but it&amp;#x27;s a pretty common one). The AWA doesn&amp;#x27;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 &lt;i&gt;conferred by some other statute&lt;/i&gt;. The AWA is described as being a source of &amp;quot;residual&amp;quot; (secondary) power that only acts to help carry out some primary source of authority.&lt;p&gt;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&amp;#x27;t passed a law saying a court &lt;i&gt;can&amp;#x27;t&lt;/i&gt; do X thing, and the writs don&amp;#x27;t have to have antecedents in common law. This more-or-less contradicts any number of Supreme Court rulings. They&amp;#x27;ve only been getting away with it because they get a magistrate Judge to issue them by asking for them in &amp;quot;emergency&amp;quot; &lt;i&gt;ex parte&lt;/i&gt; hearings, meaning the other side isn&amp;#x27;t present to offer a competing argument, which the FBI excuses by arguing its a time-sensitive matter (even though it generally isn&amp;#x27;t). One of the amicus briefs in this case was submitted by 32 law professors, who pointed out that this violates due process.</text></comment>
<story><title>U.S. Says It May Not Need Apple’s Help to Unlock iPhone</title><url>http://www.nytimes.com/2016/03/22/technology/apple-fbi-hearing-unlock-iphone.html</url></story><parent_chain><item><author>nostromo</author><text>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.&lt;p&gt;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., and now trying to force Apple to make malware for their own phone.&lt;p&gt;It&amp;#x27;s definitely a risk for the FBI to fight this battle and potentially lose a tool they use all the time.  Since there is probably no new info on the phone, it may not be worth the risk of making this a big fight with a motivated and well-financed adversary like Apple.</text></item></parent_chain><comment><author>cturner</author><text>I assume they are not particularly interested in the phone itself. Rather, that they have been shopping for a situation with the character of this one so as to try their luck at pushing their capture rights.</text></comment>