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Comment by bradleyjg | Hacker News Reader

It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before. We shouldn’t drift to a place—or be pushed to a place by the loudest voices—because finding the right place, the right balance, will matter to every American for a very long time.

So why are they asking the courts to stretch the 1789 All Writs Act beyond its breaking point, instead of going to Congress for a new law? The magistrate that signed off on this isn't even an Article III judge.

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Except he did go to Congress, and came back with nothing, forcing him to use the AWA.

So who is pushing who exactly? And who has a louder voice in criminal justice matters than the FBI?

Hadn't thought about it this way before, but he might be turning to the AWA because a reasonable piece of legislation can't make it through congress.

Reasonable according to whom? And Congress passed a ton of stuff last year, it's not like it is totally deadlocked.

The FBI would love a federal law that forces Apple to crack phones for them. Since they don't have one, they are trying to get a court to invent one by stretching the All Writs Act.

Reasonable according to whom?

This is why we have Rule of Law. There is no "we follow the law when it seems reasonable". Whatever the law is, it should be followed, and it does not matter at all what anyone's personal opinion is regarding what the law should be.

Perhaps it is more complex than this, for example in cases of civil disobedience. However, civil disobedience is for cases of conscience when you cannot personally participate in something that is immoral, so you refuse to participate or you protest it. The key here is that this is ignoring the law to resist immoral uses of power, not ignoring the law to remove intentional restrictions to the application of allocated authority.

This applies doubly to the legal system itself. An appeal to the inability of legislatures to "get things done" has been the argument of every tyrant since Caesar.

I was suggesting following the rule of law. Congress passes laws when they get around to it. I'm not in any way advancing that we should ban encryption or support backdoors (effectively banning encryption). I will not however pretend that I have exhaustively considered all legislation that would allow the FBI to open this phone without setting dangerous precedents.

I can't think of any at the moment but I don't think anyone in a position to do anything with an answer is trying. The issue is too good a political bludgeon to bother even seeking some creative solution to the problem (again, not that I am 100% sure there even is a legislative solution that wouldn't be a vastly undesirable and possibly unconstitutional blow to encryption).

It is not a good starting presumption that no reasonable answer can be reached, especially when the topic under discussion isn't a core issue like "backdoor all encryption" but rather "is it possible to pass reasonable and generally acceptable legislation such that Apple can legally be compelled to aid this decryption effort without setting a terrible precedent?" There may be no solution to that problem, which is fine, but don't suggest that I was endorsing some vaguely Orwellian shit because I don't presume as a given that our opponents on the general issue of encryption have malicious aspirations of tyranny.

It's not vaguely Orwellian. Given an ability to disregard the rule of law, and sufficient charisma, and some hard times, any country can become a dictatorship in 5 years.

We can't kill every charismatic person, and we can't prevent hard times. We can insist on the rule of law.

I suggested that a disagreement might have a non-specified solution a) exists and b) would be achievable through legislation, passed by an elected legislature. Nothing I suggested requires killing charismatic people (?) or advocates against the rule of law.

Normally when people intentionally misread me in the most uncharitable fashion possible I can at least see the deranged logic, but in your case I can't see what evil you claim I am advancing or how you arrived at that conclusion.

I am still talking about your original comment.

I understand your clarification, I was nitpicking that you were saying my response to the original comment was 'crazy' or something, but without the context you gave in your reply I think my original response was appropriate.

I agree with your larger point, there is probably a workable solution that balances the threat of government with the benefits of government, but I disagree that it is 'not getting things done' that is the cause of us not finding that compromise.

In general, I think that appeals to 'a lack of will' are almost always incorrect. People, even politicians, are generally good and want to find good solutions. There is a lot of disagreement on what is a good solution, and even more disagreement on what the long term consequences of choices are. This is why there is gridlock, and if you read the Federalist Papers (in the case of the US), you will see that this gridlock is a Feature of the system, not a Bug.

Every time I hear someone defend the recent state of affairs by bringing up the gridlock being a feature and not a bug, I feel like someone who owns a delivery truck that won't go more than 10 mph. I go to the dealer and ask what the fuck, and the dealer says that there's a speed governor on the truck that won't let it surpass 80mph and the governor is just working better than usual.

That is a clever analogy.

I think we are fine though, we are safer than ever before. We don't need to extend government snooping power, because there is no need to do so. If someone disagrees, that is fine, but that is why we have a speed governor.

People have always complained about decisions being made too slowly, but they have never been made faster, if anything they are made more quickly now than ever before. Congress used to only meet a few times a year for a few weeks!

When they only met a few times for a few weeks they were passing laws that were readable in whole by individuals during those sessions. The scope of their responsibilities has increased and I expect them to apply a correspondingly high degree of effort.

I want the legislature to be passing laws rolling back the security state, I want them to cancel or rework programs that don't work across the board. They can't do those things if they spend all their time in some arcane ritual circle jerk whose only and ultimate goal is just to make some of the other participants ultimately look more ridiculous than other participants.

We've normalized and accepted parliamentarian bullshit at the expense of governing (on both sides, but the republicans are the undisputed masters of the dark arts) for a couple decades now. Legislative lethargy (sorry, had to) is supposed to derive from lengthy debate and substantive disagreement, not from participants purposely tanking the process to score points in the cheap seats. Part of the reason that they got shit done in a couple of weeks in ye-olden-congress is that it was closer to a turn based game, news traveled slower and so the results of the whole session were what constituted news, not every little BS stunt.

The frustrated and vindictive part of me hopes that not a single senator or congressman pays a price for their cynical abandonment of their duty to govern. That way, next term we see months long shutdowns of the whole federal government and a collapse of federal services until [Bernie|Hillary] signs a budget that reallocates all non-entitlement social spending to some insane shit that polled well among likely voters suffering from bathtub-gin induced brain damage. The revolting (both senses) congressmen won't actually care about getting the spending reallocated, but them "standing up to" [Bernie|Hillary] will play well with their group so so be it.

Edit: to clarify the frustrated and vindictive part would be rooting for it in the sense that the worst part about democracy is that people get the government they deserve, and at the moment it doesn't seem like the process thinks we deserve much.

Again, you seem to think we are getting 'worse' government, but we have the best government we have ever had. Just because you can see it close up (in a historical sense), you are aware of it's warts. But I assure you, the governments of the past had all the problems we have today, and many, many, many more. If you were to get in a time machine and go back even 50 years, you would be shocked at how corrupt the government was then compared to now.

Stop with your short sighted, historically ignorant whining already.

I think that was his point. If he can't pass a law through the People's representatives, then he shouldn't be using mental gymnastics with one of US's oldest laws in existence to force a company to hack its own device...

And no, "Congress gridlock" is not a good response to abusing existing laws.

It's not a good excuse to abuse existing law but it seems like a likely explanation.

Forcing him how? If he came back with nothing, that's his answer. The answer of the American people. Perhaps he should learn what no means.

Except the American People also gave him the job to following any and every possible lead.

There is a fundamental conflict with how law enforcement and intelligence does it's job and the way people communicate today. Period.

If people want more secure communications they are going to have to tell the FBI in no uncertain terms "we are ok with you dropping leads."

Apparently in this specific case that has happened as a mother of the slain said:

“This is what separates us from communism, isn’t it? The fact we have the right to privacy,” Adams said to the Post. “This is what makes America great to begin with, that we abide by a constitution that gives us the right of privacy, the right to bear arms, and the right to vote.”

Now, is it up to this mother to make that case? Yea, if the director is to be listened to. After all that is who he invokes when appealing his reasoning. So based on this statement it seems like they should back off, say shit happens, lets mourn our dead and move on.

We need more of the victims to speak out and tell investigations their true thoughts.

[1]http://fortune.com/2016/02/19/victim-apple-fbi/

>So based on this statement it seems like they should back off, say shit happens, lets mourn our dead and move on.

Agreed. It's not like the investigators are totally in the dark here, either.

In addition to the rest of the FBI investigation, given the terrorist/national security nature of the case, it's likely that anything the shooters did online during the past few years was pulled and analyzed—including internet history, e-mail, chat and phone conversations—rendering a pretty good picture of both their interests and associations.

If the FBI didn't do this (they can if it's a national security case), then the intelligence community certainly did.

Some victims are being represented pro-bono in a case against Apple [1]

[1] http://www.reuters.com/article/us-apple-encryption-victims-e...

There should be more discussion. Tech companies should seek to understand the government's job to keep people safe, and the government needs to understand that this is a game of whack-a-mole they can't win

> Forcing him how? If he came back with nothing, that's his answer.

It's amazing how many people don't get this. The Congress makes laws, which are the tools at the FBI's disposal. If they didn't give them this particular tool, then too bad: they have to figure out how to do their job without this tool.

And the DFBI did not address the gross incompetence shown by them, when they asked the County to reset the phone. If they didn't even know the consequences of that request, how can they predict the (supposed no) consequences of their request to Apple?

Exactly. From the public and its representatives' view, the matter is settled. But the FBI keeps saying "we need more debates on this" because it didn't go the way it wanted it to go.

For the lazy:

"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."

This law is basically "The courts can enable discovery and describe implementation of rulings." Setting up the rules of the game.

Could you share why you think that this is a stretch of the AWA? Is it because of the amount of work asked ?

The high profile nature of this court case will ultimately be leveraged into getting Congress to take it up if they lose. I think Apple has a very good case for arguing under AWA that the order is too burdensome, and if the court doesn't agree I think they've got a good case to argue that it infringes their First Amendment right.

> ... instead of going to Congress for a new law

I hate to be in the position of defending the FBI, but this new law would be irrelevant if it's ex post facto, yeah?

No. The ex post facto clause of the constitution only forbids certain types of retroactive criminal laws. See Calder v. Bull for the details.

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