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Did you see Robert Cringely's article where he comes to a very similar conclusion? Ironically, although he sees the same gambit, the two of you seem to be interpreting the situation completely opposite. If I'm reading you both right, you believe Scalia was the most likely to side with Apple, whereas he thinks Scalia was a sure vote for the FBI?

  What’s going on is Justice Antonin Scalia is dead.

  Had Justice Scalia not died unexpectedly a few days ago 
  (notably before the Apple/FBI dustup) and had the FBI 
  pursued the case with it landing finally in the Supreme 
  Court, well the FBI would have probably won the case 5-4. 
  Maybe not, but probably.

  With Justice Scalia dead and any possible replacement 
  locked in a Republican-induced coma, the now eight-member 
  Supreme Court has nominally four liberal and four 
  conservative justices but at least 1.5 of those 
  conservatives (Justice Kennedy and sometimes Chief Justice 
  Roberts) have been known to turn moderate on certain 
  decisions. This smaller court, which will apparently judge 
  all cases for the next couple years, is likely to be more 
  moderate than the Scalia Court ever was.

  So if you are a President who is a lawyer and former 
  teacher of constitutional law and you’ve come over time to 
  see that this idea of secret backdoors into encrypted 
  devices is not really a good idea, but one that’s going to 
  come up again and again pushed by nearly everyone from the 
  other political party (and even a few from your own) 
  wouldn’t right now be the best of all possible times to 
  kinda-sorta fight this fight all the way to the Supreme 
  Court and lose?

  If it doesn’t go all the way to the Supremes, there’s no 
  chance to set a strong legal precedent and this issue will 
  come back again and again and again. 

  That’s what I am pretty sure is happening.

http://www.cringely.com/2016/02/19/the-fbi-v-apple-isnt-at-a...

I did see that, and I think that Cringley is--like many other people who haven't paid attention--seriously misinterpreting Scalia's history on the court.

My own, admittedly amateur, interpretation is that he's largely internally consistent with his ideas of protecting person freedoms and advocating in favor of judicial restraint.

I see citizens united as an exanpsion of Scalia's attitude about protecting personal freedoms (and this is an expansion I disagree with, btw). His logic in Bergofell was that the court doesn't have the authority to meddle further in religious matters than it already has and needs to exercise restraint.

In my opinion, the argument is stronger in Bergofell than it is in Citizens United, even though I agree with the result of the former and disagree with the latter.

I could be incredibly wrong, but I think that over 30 years, Scalia has been a champion of individual rights and protections more often than not. Much to various people's chagrin at different times.

That has sometimes led to good results and sometimes led to bad. I feel comfortable in this case making the assertion that Scalia would have definitively come down on the side of Apple, and done so in the heavy-handed manner that he was known for and probably persuaded a fence justice like Kennedy to side with him in this case. But possibly also bringing RBG in with him at the same time.

Yes, it's all prognostication at this point, and I know that. But in my opinion, the bigger picture of Scalia outside of Citizens United and Obergefell are the history of someone who would have opposed the order against Apple.

Cringley is just being Cringely: bigoted, hateful, and wrong. As usual.

But then again, I could be really wrong. It does happen sometimes.

How is Cringely bigoted or hateful? I'm genuinely curious as I just don't see it.

He can wrong, but then he is known to admit that.

Please, several conclusive examples would be surprising to me and interesting.

I am uncertain how one could consider Scalia's jurisprudence as advocating civil liberties.

Because he's a strict Constitutionalist. I would suggest a review of his actual written opinions. They are spectacularly in favor of a strict interpretation of the Constitution. His Obamacare dissent is a great recent example: the civil liberty to not be compelled to buy a product.

Also look at Texas v Johnson, Maryland v. King, Kyllo v. United, Florida v Jardines.

Scalia would almost certainly be on Apple's side in this because it represents not a question of legislation but a question of the power of the state.

It's easy to dislike Scalia based on decisions not going the way one's personal convictions would hope, but in questions regarding the power of the state, Scalia is very clear. Remember Scalia defended flag burning as well as opposing thermal imaging into a private home without a warrant. He also opposed involuntary DNA submission -- definitely read the opinions and not simply examine the outcomes.

I love how people keep going back to him being a defender of state's rights, but conveniently forget about cases such as the Bush vs Gore recount, where he specifically took away the state's right to recount, with some disastrous consequences

And there are other examples as well.

People want/like to think of him as a defender of the Constitution. Great. But consistent, he never was.

Scalia's opinion in Heller is a good example helping to restore the 2nd Amendment as meaningful along with the 1st and 5th.

And his opinion in Crawford v. Washington essentially restored the Confrontation Act of the Sixth Amendment. [0]

I may have disagreed with Justice Scalia on a great many points, but he was one of the foremost defenders of the rights of criminal defendants.

[0]Crawford v. Washington, 541 U.S. 36 (2004)

Not everyone's individual rights. I didn't see Scalia standing up for my right to do what I want with my female body, for instance. (I know the counterargument is that fetal rights are more important, but then the fact remains: not my rights.)

Scalia also didn't think that women were protected from discriminatory laws under the equal protection clause of the 14th amendment (interview in California Lawyer, 2011).

I just have to conclude he thought some individuals (and corporations) were more equal -- and have more rights -- than others.

Just thinking back in recent history, U.S. v. Jones (2012) [0], Scalia writing for the majority of the court [1]:

> The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.

But additionally, he argues that without the physical intrusion, long term tracking via GPS may be permissible:

> The concurrence posits that “relatively short-term monitoring of a person’s movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. ... That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving sub-stantial amounts of cash and narcotics is not an “extra-ordinary offens[e]” which may permit longer observation.

So at a clip, I'd go with my usual and say that Scalia had an independent mind that tried to balance a original reading of the Constitution with federal law. How he'd land on the Apple case is entirely unclear.

[0] https://en.wikipedia.org/wiki/United_States_v._Jones_(2012) [1] https://www.law.cornell.edu/supremecourt/text/10-1259#writin...

Scalia was hoping mad about the Obamacare decision that, among other things was an attempt by the state to force a citizen to buy a product. I won't rehash the arguments, they are well known, but the short answer is that Scalia would likely be opposed to forcing a company to build something. If the 'something' existed already, there might be a different argument to make considering that there isn't a 4th Amendment question (as the perpetrator is dead.) The idea of the state to compel an entity to build something (which is the same as forcing them to buy something as they must spend money buying the labor to build it,) would be, in Scalia's view, against the Constitution.

The plaintiffs would have to prove with substantial weight that there is a national security issue (i.e. An imminent threat.) That would be hard to prove as the government is really just investigating and fishing as opposed to having proof there's a nuclear launch code on the phone. I would suspect the 9th Circuit would rule in favor of Apple.. As such a 4-4 Supreme Court would by default result in the 9th Court decision standing.

I tend to agree with you. It is strange in the sense that the government is free to build such software itself, and subpoena Apple for such knowledge to do so, but instead is compelling Apple to act in a substantial way. For Scalia's reductio ad absurdum, could the govt use All Writs to force a safe maker out on the battlefield in Afghanistan to open a safe? If Apple had a working quantum computer, could they be compelled to use it to aid the govt? What's the limit on All Writs if this instance were upheld?

I don't think you can lobby SCOTUS. Theoretically you could present an amicus brief but I think the bar is very high

It's probably a good thing we can't lobby them

You absolutely can write letters to the members individually. Perhaps lobby was a bad word for it.

Perhaps my idea is broken on the face of it. But an amicus brief put together by the HN community doesn't seem completely unreasonable.

My point here is that there are things we are capable of doing that might affect the outcome of such a court case.

For those of us who care--in either direction--it seems reasonable to try.

What I'm going to try to research and build this weekend is the most effective way of contacting the court and sharing your opinions.

It could very well fail to be effective, but that's not going to stop me from trying.

I would be very interested in hearing your research - good luck

I will share what I come up with over the next couple of days.

Hell even if it doesn't turn out well, it will be an interesting thing to put up on github to help me get a job.

You can invite them to a weekend party at your branch, and bend their ear.

What is the ruling that prevents this exactly? There needs to be some basis, and considering the circumstances (individual warrant, not even property of the terrorist) I have a hard time seeing the constitutional argument here that is related to any right to privacy.

Based off of the ruling handed down by the judge, it sounds like you could only rule that the work demanded of Apple is too onerous... I feel like that won't accomplish much though. I feel like this situation is pretty orthogonal to a ruling against any "Mandatory Backdoor" laws (which is the holy grail for us at this point)

The question is, is this act (the whole text follows):

https://en.wikipedia.org/wiki/All_Writs_Act

"(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction."

a reasonable legal ground in this case to demand from a company to develop anything, in this case a special version of the operating system? Does this act mean "we can order anything to anybody"? Especially when there is "the Communications Assistance for Law Enforcement Act of 1992."

If anything goes, as "All Writs" is tried to be used by the FBI now, we don't need any other laws. "All Writs" rules.

> No tinfoil intended here, but it strikes me as very unfortunate that the Supreme Court Justice most likely to be opposed to this recently passed away last weekend.

I know Scalia fans like to believe this, but you are dead wrong. It would all depend on how the Republican/Conservative establishment feels. If the Republicans agreed with the Feds, you can bet your ass Scalia would side with them.

The man had no principles, he was just an anti-Democrat and anti-Liberal.

Your rant is the very definition of bigotry. People tend to be more nuanced than your B/W view of them.

I am not an expert on this stuff but hardcore conservatives are falling in line with law enforcement on this issue. I'm not so sure he would have sided with Apple here.

Maybe we want Apple to lose this case.

If Apple wins, DOJ gets to turn around and push legislation mandating backdoors on the basis that terrorists are winning in their courts. The public will eat it up, because who the hell wants to side with some guy that murdered 20+ people in San Bernardino?

Conversely, if Apple loses, there are no real lasting effects. Encrypted phones are the new norm, and the 5C is weaker than its successors. If Apple actually can't undermine the encryption (ie: like the newer iPhones), the courts can't force them to do anything. The precedent of being able to force them to undermine underminable phones is meaningless.

The thing to fear is legislation.

You know, there's this thing called judicial review too.

I don't need the Supreme Court to tell me what my natural rights are regarding privacy.

The answer is to reject this perverse notion of Judicial Review. This is what we should be lobbying for.

I do not care what SCOTUS or a private corporation does or says. If you attempt to diminish natural rights you should be forwarned; I am coming after you directly to either alter or abolish the policies and government you have unjustly imposed over me and society.

I don't care about these silly irrelevant constructs. My rights to privacy preexisted government, Apple, encryption and the Bill of Rights.

If the DoJ ot FBI disagrees, then we should abolish them. I am no fan of the FBI and their fascist organization built by an oppressive corrupt criminal named Hoover.

One day they will no longer exist and neither will this idea that little men in robes need to tell people what their obvious natural rights are.

Completely right.

Sad HN down votes truth.