Hacker News Reader

> Apple came and filed a Joinder in Motion and sent expensive lawyers to lie to the judge about the judge's power to subpoena digital evidence.

If a lawyer makes an argument in court about the law governing a case (as opposed to the facts of the case), and the judge accepts the argument, and the judge's decision survives all its appeals, then the lawyer's argument is, by definition, true.

EDIT: I'm objecting here to the characterization of the lawyers' arguments as "lying". The judge's "power" to suboena digital evidence sounds like a question of interpretation of the law. Many (all?) US court cases have at least one question of law in which the parties make opposing arguments. One party prevails, the other does not, or maybe one party prevails on some points and the other prevails on other points. But however those questions are ultimately decided, that's the law, as it pertains to that case. In that context, it seems very strange to characterize either party as "lying" in such arguments.

If, on the other hand, "the judge's power to subpoena digital evidence" really means Apple's technical ability to produce such evidence, then I would agree that those are facts about which some statements could be considered truthful or not.

>"If a lawyer makes an argument in court about the law governing a case (as opposed to the facts of the case), and the judge accepts the argument, and the judge's decision survives all its appeals, then the lawyer's argument is, by definition, true. "

This is a Kafkaesque and wrong understanding of the legal system. There are all sorts of errors of law and errors of fact that are non-appealable.

I think poster above is right, certainly with respect to the legal system in the USA.

In the USA you often get one direct appeal - an appeal by right - and then if that fails, a discretionary appeal by a more superior court.

I've seen some bone-headed decisions made by the trial judge, then the same error made by the appellate judges, and you know the superior court would reverse, but they only take 0.01% of the cases they see every year and so they just don't have time to fix every mistake. So some really stupid legal decisions become "the law of the case" simply because society doesn't have the funds to pay more judges to check the work of lesser judges.

Case law, not truth. Judges do not decide fact.

> Judges do not decide fact.

Trial court judges in jury trials do not (in principal) decide fact questions (though even that is misleading, since they can decide “as a matter of law” that offered evidence is insufficient for a particular fact conclusion even over the jury’s determination of fact, except in the case where that would be unfavorable to the defense in a criminal trial.)

Judges in bench trial, and appellate judges in many cases, do, in fact, decide matters of fact, though in the latter case the usual rules are generally, but not infinitely, deferential to trial court decisions.

US based? I understand if you can't divulge any specifics, but I'm always curious about the nature of these attacks, e.g. we know certain types of journalists/activists are often targeted.

US-based, yes.

> and they are certainly allowed to violate T+Cs even when a violation of a T+C is a criminal act (which it is in many jurisdictions).

Is violating a T&C criminal in the US, if the violating action itself is not a crime? I have not heard of this. Are there any examples that can be linked to? I thought it was always a civil matter.

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

Yes it is a federal crime, but was recently limited by https://en.wikipedia.org/wiki/Van_Buren_v._United_States

The CFAA includes this. I am not sure it's possible for US government actors to violate the CFAA unless they're violating some other law also. It seems very unlikely Congress intended to make T&Cs binding on law enforcement or intelligence investigations.

"This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States."

https://www.law.cornell.edu/uscode/text/18/1030#

This is correct, although most US States have their own version of CFAA which aren't so limited and don't include any exceptions or exemptions, either.

Yes, for instance in Illinois there is a specific crime for violating terms of service:

720 ILCS 5/17-51(a-10)(1) Computer tampering

https://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=0...

Perhaps you may want to ask https://eff.org for help.

I tried at the time, but received no response.

> sent expensive lawyers to lie to the judge about the judge's power to subpoena digital evidence.

You're being unreasonable here since it is a very grey area.

If Apple is compelled for example to hand over encryption keys to a judge (which often means a bunch of junior lawyers) then that would infringe everybody's right to have their information be secure.