Harvard Law professor Susan Crawford and former special assistant to President Obama has written a blog post setting out the reason why she believes it is legally impossible for the FBI to win its case. The piece is entitled ‘The Law is Clear: The FBI Cannot Make Apple Rewrite its OS.’
While the FBI is relying on an extremely broad interpretation of the All Writs Act, Crawford points out that it is an accepted principle that specific laws take precedence over more general ones – and there is a specific law which outlaws what the FBI is asking for …
That law is the Communications Assistance for Law Enforcement Act (CALEA). CALEA grants the government a lot of wiretapping powers, she says, but also clearly sets out the limits to those powers.
The government won an extensive, specific list of wiretapping assistance requirements in connection with digital communications. But in exchange, in Section 1002 of that act, the Feds gave up authority to “require any specific design of equipment, facilities, services, features or system configurations” from any phone manufacturer.
That wording, she argues, means that the government is specifically prohibited from requiring Apple to create a compromised version of iOS.
The government is aware of this, and the blog piece describes how it is attempting to argue its way around the issue, but Crawford says the FBI’s brief uses a circular argument. CALEA has, she writes, “no gaps; no interpretive sunlight: CALEA stops the government from doing what it wants to do to Apple.”
The next hearing takes place at the U.S. District Courthouse in Riverside, California, on 22nd March. Protest group Fight for the Future is inviting Apple supporters to post online messages which it will display outside the court.
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Please provide link to the blog post bySusan Crawford. All articles should link to sources they cite, thats common practise.
Not sure what happened to the link, it’s back in now.
BTW, here is the link: https://backchannel.com/the-law-is-clear-the-fbi-cannot-make-apple-rewrite-its-os-9ae60c3bbc7b#.r4lyz2lqd
Hopefully more and more legal experts weigh in with these arguments – it can only help the Apple Legal Team to cite precedents when they hit the court!
The law is painfully clear, even to a layperson but apparently not the FBI or they choose to ignore it. Isn’t ignoring the law by definition the beginning of a criminal act?
Is it time to impeach the director of the FBI and the FBI’s ‘business’ practices? Office of the Inspecror General, where art thou?
I agree with her that the law is clear, but my only concern is that law was written specifically for the telcos. Does Apple fall under that category? i am afraid if the judge say no, then Apple cannot use it as a shield. I am no lawyer so I am not sure what the answer is.
If you read the briefing, there is ample precedent for Apple to be considered a telecommunications company per the definition of the CALEA statutes and others. Apple really should be on very solid legal ground here, assuming the judge is at least partly competent. And if not they will of course appeal.
https://backchannel.com/the-law-is-clear-the-fbi-cannot-make-apple-rewrite-its-os-9ae60c3bbc7b#.i6fyybknr
https://backchannel.com/the-law-is-clear-the-fbi-cannot-make-apple-rewrite-its-os-9ae60c3bbc7b#.tmb0b5x1c
Firstly, section 1002 is from Title 47 of the US Code , NOT from CALEA. CALEA amended Title 47. Secondly, section 1002 may not apply. It is directed at allowing the government to listen to telecommunications and the limits of that listening. In the San Bernadino case the government wants to read the data on a cell phone/computer which is not telecommunications.
Auctally an iPhone is Telecommnications. Secondly what do you think the Government is doing with they listen to a phone call? Collect Data. That is exactly what they are wanting to do with the iPhone in this case, collect data. This is a much closer president than the All Writs Act which is what the Feds are trying to use.
Actually an iPhone is Telecommnications. Secondly what do you think the Government is doing with they listen to a phone call? Collect Data. That is exactly what they are wanting to do with the iPhone in this case, collect data. This is a much closer precedent than the All Writs Act which is what the Feds are trying to use.
Actually an iPhone is NOT telecommunications. It is a device. Telecommunications is the sending of messages between two points. Title 47 Section 1002 is about intercepting telecommunications in real time as it happens. The San Bernadino case is about reading fixed data on a device after the data was placed on the device. Yes the government collects data when intercepting a call, but the law is about companies facilitating the interception of the call. The only data in addition to the data obtained from intercepting the call that the government can get according to title 47 Section 1002 is the caller id info. Please read the law. In fact the law is clear that the phone companies cannot be required to assist in decryption unless they themselves created the encryption. So AT&T, Verizon, etc., cannot be required to help the government with the decryption of WhatsApp messages.
The government is trying to collect data that’s not necessarily specific to the telephone calls through Apple. they are looking at emails, notes, spreadsheet data, bank info, plans associated with future terrorist attacks, etc. that’s just stored on the “phone” but doesn’t necessarily have anything to do what the telecommunications of voice or text message conversations. yeah, they can already go to the cell service provider and get whatever they want from them, but they want any tidbit of information they can get on these devices, because in reality, a smartphone is technically a computer and a phone jammed into one device and they are wanting the data on the computer side of the device.
Of course an iPhone is Telecommunications. The device itself is regulated by the FCC. Its on the phone.
Hmm…
Follow link to CALEA
“Congress enacted CALEA on October 25, 1994″…
Were there any cell phones around then?
Well, apparently even earlier than that! 1973!! Motorola’s first commercial one was 1983. There’s a riot of a picture there with a Motorola executive holding up a “Saved by the Bell” type portable phone! :-)
http://www.knowyourmobile.com/nokia/nokia-3310/19848/history-mobile-phones-1973-2008-handsets-made-it-all-happen
So, it seems that this really would apply to Apple’s iPhone!
haha… great picture… such a happy fella…lol
but yes… this law was created back in 1994 when most phones had a limited number of characters per text messages (this was around the time when short had texting took off… my friend even got a book for xmas back in 2000 when he got his first phone… i was lucky, i got my first phone in 1999)… phones back then did not have a coloured screen, no means of taking a photo or video etc…
But of course — this law applied perfectly to phones of today — all this shows is that this law needs updating…something that will happen now.
Given that the CALEA was passed in 1994 — a time when the digital age was in its infancy still… the FBI can push for an amendment to update that law.
phones of that time period couldn’t access the internet, make videos, take photos, or store the amount of information as it can today.
A lot has changed in 20 years…
i can imagine this will be the FBI’s next step.
The All Writs Act was passed in 1789, and it’s the basis the FBI used to obtain the warrant. Not only were there no cell phones then, nobody who had anything to do with The All Writs Act back then even knew they would someday have electricity! I can imagine two of the founders conversing over candlelight on a cold winter night, when one of them says “John, at this rate we ain’t never gonna have television…”
Something Awful IS Going To Happen:
Whenever a government curtails, weakens, subverts or removes citizen’s rights, the terrorists WIN. It’s that simple.
“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
– Benjamin Franklin, Historical Review of Pennsylvania, 1759