Caleb, your continued posts regarding your thoughts on the legality of the court order at issue continue to illustrate the fact that you do not even have a firm grasp on what issues are at play in this matter.
You state, "The legal issue is very simple. The courts have ordered Apple to open one 'phone. The issue is whether Apple is legally justified in its refusal."
Incorrect. The court has not ordered Apple to to "open one phone." Read the Order! It requires Apple to invent a new operating system that would provide a backdoor to encryption and make it possible for the FBI to "brute force" its way into the phone at issue.
You further state, "The issue is whether Apple is legally justified in its refusal. There is no legal or scientific justification for Apple's refusal. Apple's IPhone contains evidence of multiple murders committed by a terrorist." All these statements that you present as factual are incorrect! The issue is whether the federal government can compel Apple to create and implement the operating system described above which would provide backdoor access to Apple's encryption. There are a host of Constitutional arguments that support the notion that the federal government does not possess the power to compel Apple to create the operating system it desires. Among those are 1st Amendment issues regarding compelled speech, 4th Amendment concerns regarding unreasonable search and seizure of Apple intellectual property, public taking of Apple property without just compensation, due process of law concerns etc... The list goes on.
You next state: "Apple's IPhone contains evidence of multiple murders committed by a terrorist." That is pure speculation. You have no idea what is contained on the phone. Nonetheless, whether or not it contains evidence of multiple murders committed by terrorists does not change the legal issues discussed above.
"Apple must open the 'phone and disgorge the evidence." Incorrect. See legal issues addressed above.
"There is nothing technologically esoteric about this at all." No, there are pressing legal/constitutional concerns at play that override any "esoteric concerns."
Finally, you state, "It is no different from opening a milk can to find a pistol a murderer hid inside the milk can." I have no idea what you are attempting to say here. I assume you mean that opening the phone is like opening a container that contains a murder weapon. For all the reasons cited above, your analysis is very flawed and incorrect.
So put away your slide rule and your copy of Herrman Hesse's "Siddhartha." They cannot help you now. Have a Dovely." Instead, I would suggest that you either refrain from asserting your legal theories without significantly more education and/or research and that you remember to include yourself when you caution that people who have a notebook have become experts in law etc... Your posts demonstrate that, at least when it comes to the law, you have no idea what you are talking about. Let the big boys who have gone to law school handle these tricky issues for you. Rest your weary head confident in the knowledge that you might be the smartest guy currently in your house.
Apparently, your concern revealed in your statement, "that everyone with an iPad or a Notebook, who can type, now proclaims himself an expert in law, mathematics, engineering, politics, worldwide business and government" does not apply to your own proclaimed expertise in law, business, government etc... The argument that Apple should trust its employees and various levels of government is misplaced. The court order at issue requires that Apple create a backdoor to encryption. Once that is accomplished, it is not necessarily Apple employees or government officials that Apple needs to be concerned with, it is with the multitudes of hackers that will try to exploit the backdoor that they will now know exists. I would love to know your reasoning that leads you to conclude that "the court order which requires Apple to assist law enforcement to open the San Bernardino Terrorism Defendants' Apple IPhones and other devices is correct and will be affirmed and enforced." My opinions regarding the matter come, generally speaking, from practicing law in federal courts for the last 18+ years. From what knowledge base do you arrive at your conclusions?
"Apple claims that the Government's request is unprecedented. In opposing the order, it is Apple, not the Government, who seeks to make new law." How so? "Apple lost this round when they tried and failed to build a device secure against themselves. It's embarrassing. Too bad. Build a more secure phone next time, boys." How so? The point is that Apple's phone IS secure such that the FBI cannot get info off of it without getting a court order forcing Apple to write a different OS that introduces a backdoor to encryption. Once Apple writes the OS, after being compelled to do so, the cat will be out of the bag and what was once qa secure system will have been undermined by the court order. That is how it affects future activity.Please do answer my question regarding your statement that it is Apple that seeks to make new law by opposing the court's order. I am genuinely interested in your answer.
I don't think I disagree with the main point you are trying to make but I want to pint out a couple of things. First, there is no such thing as "the 11th district Court of Federal Appeals. There are "District Courts" which are the federal trial courts and there are "Circuit Courts of Appeal," the federal appellate courts. There is then the U.S. Supreme Court. The 5th Amendment states as you say it does but it is not implicated in this matter. No one is prosecuting Apple for a crime thus it is not refusing to testify against itself. The court's order was not issued by an administrative law judge but by a federal magistrate judge. Federal Magistrate Judges routinely issue preliminary orders in both civil and criminal cases. I agree that the order is improper but the fact that it was issued by a magistrate judges versus a District Court Judge is of no consequence.
This is largely incorrect. To begin with, your statement that, "becoming a Federal Magistrate is not difficult, for it is first a political appointment" is simply false. Further, the term Federal Magistrate was abolished in the 1970's and they are now called federal Magistrate Judges. They are hired by the District Judges of a court. In almost all scenarios, the magistrate judges' decisions are not reviewed by the District Judge. They can exercise both criminal and civil jurisdiction. Federal Magistrate judges are, in my 18+ years experience of practicing law, extremely well qualified as a general rule. While a lifetime appointment as a District or Circuit Court judge can involve politics for appointment to a lifetime judgeship following Senate confirmation, these magistrate judges are selected by merit and retained the same way. Magistrate judges ARE NOT required to "submit their decisions to be reviewed by the sitting Federal Court District Judge." Here's a good article to read to refresh your stale information regarding federal magistrate judges, their authority and their process of appointment. http://www.nced.uscourts.gov/pdfs/Selection-Appointment-Reappointment-of-Magistrate-Judges.pdf
The difference is that, in this case, the government is attempting to force a private company to create code to defeat its own encryption. And it isn't for just this one case. Creating a backdoor to encryption would mean that it will work on ALL iPhones, not just the one in question. Further, it wouldn't just be for one ohone. If this order stands you can rest assured that the FBI, other law enforcement agencies and other governments will demand the same for other phones. The Manhattan DA admitted in a recent interview that he will demand Apple do the same with respect to 155-160 phones in his possession. Here's a link to Apples open letter to its customers that also explains why your argument must fail.http://www.apple.com/customer-letter/
That simply isn't true. To begin with, had the suspects not been killed and were still alive, they would merely be accused of committing crimes. As you know, defendants are presumed to be not guilty unless and until convicted. We don't throw out the 4th Amendment's protections against unreasonable searches and seizures merely because the defendant is accused of committing a heinous crime.
There is a reason that your statement is not being used/applied in this scenario. It has nothing to do with the issue at hand. No one is arguing that a "search" of the phone is legal/illegal (notwithstanding the fact that the mere fact that the "user" of the phone is now dead does not change the government's burdens/duties with respect to the 4th Amendment. The county actually "owns" the subject phone). The issue is whether Apple can be forced to draft a new operating system that would create a backdoor to the encryption used in the Iphone. That has nothing to do with whether a search of the phone is legal or illegal due to the death of the "owner" of the phone.
That argument fails. If you argue that then Apple should have complete and total control over its own property. If it claims to own the property then surely it can refuse to alter that property in manner is does not want to.
I'm not sure why you think that "not that many terrorists have encrypted phones, or much data on them." The growing problem our intelligence agencies are facing is the prevalence of third party apps that make encrypted communications readily available to terrorists. Further, a court lacks any power to to turn to some corporation or government agency and say, "Here, use your big nutcracker to crack this nut." Finally, the point of this article and of all the comments is that the government DOES NOT have anything readily able to crack the encryption of this iPhone.
Interestingly enough, the law which the FBI cites in support of its argument that it can force Apple to do what the FBI has requested it do, is based on the "All Writs Act of 1795."
Yes. It's standard practice. A copy of any proposed order must be submitted to counsel for each party in a lawsuit but supplying the judge with a proposed order is a routine practice.
Ummm... I don't think the FBI is interested merely in the phone numbers called by that phone or that called that phone. They are interested in the wealth of information we all store on our phones. Identities/locations of possible terrorists, banking information, travel plans etc... The information stored on an iPhone far exceeds just phone numbers.
You clearly do not know a whole lot about the appointment of federal magistrate judges. A federal magistrate judge is hired by the District Court judges in any particular district. They serve as at-will employees of the judges of the court. The "administration" has nothing to do with selection of magistrate judges. The same is true with respect to campaign donors. Those factors are somewhat true when discussing the appointment of federal district or Circuit court judges (who receive lifetime appointments after Senate confirmation) but simply is not the case with respect to the magistrate judges.
I don't support the FBI's efforts here but the fact that the crime has already been committed does not lessen the possible value of the information on the phone. It could lead to con-conspirators, locations, identification of other terrroists etc...
Re: Re: Re: Apple Must Open The San Bernardino Terrorist's IPhone.
You state, "The legal issue is very simple. The courts have ordered Apple to open one 'phone. The issue is whether Apple is legally justified in its refusal."
Incorrect. The court has not ordered Apple to to "open one phone." Read the Order! It requires Apple to invent a new operating system that would provide a backdoor to encryption and make it possible for the FBI to "brute force" its way into the phone at issue.
You further state, "The issue is whether Apple is legally justified in its refusal. There is no legal or scientific justification for Apple's refusal. Apple's IPhone contains evidence of multiple murders committed by a terrorist." All these statements that you present as factual are incorrect! The issue is whether the federal government can compel Apple to create and implement the operating system described above which would provide backdoor access to Apple's encryption. There are a host of Constitutional arguments that support the notion that the federal government does not possess the power to compel Apple to create the operating system it desires. Among those are 1st Amendment issues regarding compelled speech, 4th Amendment concerns regarding unreasonable search and seizure of Apple intellectual property, public taking of Apple property without just compensation, due process of law concerns etc... The list goes on.
You next state: "Apple's IPhone contains evidence of multiple murders committed by a terrorist." That is pure speculation. You have no idea what is contained on the phone. Nonetheless, whether or not it contains evidence of multiple murders committed by terrorists does not change the legal issues discussed above.
"Apple must open the 'phone and disgorge the evidence." Incorrect. See legal issues addressed above.
"There is nothing technologically esoteric about this at all." No, there are pressing legal/constitutional concerns at play that override any "esoteric concerns."
Finally, you state, "It is no different from opening a milk can to find a pistol a murderer hid inside the milk can." I have no idea what you are attempting to say here. I assume you mean that opening the phone is like opening a container that contains a murder weapon. For all the reasons cited above, your analysis is very flawed and incorrect.
So put away your slide rule and your copy of Herrman Hesse's "Siddhartha." They cannot help you now. Have a Dovely." Instead, I would suggest that you either refrain from asserting your legal theories without significantly more education and/or research and that you remember to include yourself when you caution that people who have a notebook have become experts in law etc... Your posts demonstrate that, at least when it comes to the law, you have no idea what you are talking about. Let the big boys who have gone to law school handle these tricky issues for you. Rest your weary head confident in the knowledge that you might be the smartest guy currently in your house.
Re: Apple Must Open The San Bernardino Terrorist's IPhone.
Re: Re: Re:
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: This is a non-issue, isn't it?
Re: Re:
Re: Re: or maybe it's more calculated than it appears...
Re: Apple Is Being Unreasonable.
Re: Re: Re: Re:
Re: Re: Re: Re:
Re: Re: Involuntary servitude ???
Re: Re: Re: Hmmmmm
Re: Where's the NSA
Re: There is no such fallacy that gets around what's going to happen.
Re: Re: Possible?
Re: Re: Re:
http://abovethelaw.com/2016/02/we-read-apples-65-page-filing-calling-bullst-on-the-justice -department-so-you-dont-have-to/?rf=1
Re:
Re: Re: Re: Re: Hmmmmm
Re: What could possibly be on this phone anyhow?!
Re: Re: or maybe it's more calculated than it appears...
Re:
More comments from KidOmaha >>
Techdirt has not posted any stories submitted by KidOmaha.
Submit a story now.
Tools & Services
TwitterFacebook
RSS
Podcast
Research & Reports
Company
About UsAdvertising Policies
Privacy
Contact
Help & FeedbackMedia Kit
Sponsor/Advertise
Submit a Story
More
Copia InstituteInsider Shop
Support Techdirt