> A search warrant doesn't require me to create a new capability that did not exist before.
It might, depending on the analytical outcome of the three-factor test introduced in the _New York Telephone_ case. (This case was decided before compelled pen register assistance was prescribed by Congressional legislation.)
"The power conferred by the [All Writs] Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice..."
The factors are:
(1) whether the third party is "so far removed as a third party from the underlying controversy that its assistance could not permissibly be compelled by the order of the court"
(2) Whether the burden placed on the third party is "unreasonable"
(3) Whether the assistance is "essential to the fulfillment of the purpose" of the warrant
It's unfortunate that Hacker News isn't commented upon by more attorneys, and that most news articles don't link directly to the legal filings in these cases; much confusion and false assumptions about the law could be clarified.
A potentially important factor is that the phone companies used pen registers themselves all the time, whereas Apple has no desire at all to write the software that the FBI wants.
It's worth noting that despite the outcome of that case, Congress still had to pass CALEA, which seems to imply there are limits to what can be compelled under All Writs.
There are very few limits to the power of the All Writs Act -- the act, passed the same week as the fourth amendment, grants the courts (not the FBI) the authority to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law".
However, you actually have to get to the courts before the All Writs Act can be applied.
CALEA was passed to create a preemptive requirement for standardized wiretap interfaces/equipment, processes, etc, prior to any actual judicial warrant or writ being written.
The fourth amendment grants us protection against "unreasonable" search and seizure, but doesn't grant the government an affirmative right to require that future "reasonable" searches be easy, or possible.
It also (unfortunately, in my view) doesn't prevent the government from requiring preemptive action to support future searches, and that's what CALEA does.
I think the FBI is acting like there was a pre-emptive requirement for Apple to build a system to permit access.
The reason I say that, is that now that it has been proven the phone does not permit access, the FBI is trying to use a warrant to force Apple to break into the phone. But if providing access was never a legal requirement in the first place, why is it Apple's problem now?
Yes, only Apple can do what the FBI wants to do. In my mind, that should not be sufficient, in the absense of a legislative requirement, to force Apple to break a software system against their will--even their own software system.
I mean, let's say the FBI wants to run a sting operation against a gangster. Can a court use All Writs to force some random person to participate in the sting? I would think not.
Let's say law enforcement needs to pull a hard drive from a 30th floor apartment, without alerting the doorman. Can a court use All Writs to force a rock climber to climb up the building and go in the window to get it? Again, I would think not. Even if there was only one rock climber in the entire U.S. who could do what the FBI needed, it doesn't seem likely to me that an All Writs warrant would succeed against that person.
So why should it succeed against Apple? I mean, Apple is the only company that can do what the FBI wants--true. And they did build the phone to prevent access. But there was no requirement to build it any other way, so why would that be relevant?
The question isn't whether Apple has a capability, the question is why can they be forced to use that capability on a phone owned by a 3rd party?
Apple has many capabilities--they're a $500 billion dollar technology company. Which capabilities are not available to the FBI via an All Writs warrant?
You're conflating very different scopes of "capability" and responsibility.
I'll quote the DoJ's legal brief on how Apple is not "far removed" from this phone owned by a 3rd party:
"... the government is seeking to use capabilities that Apple has purposefully retained in a situation where the former user of the phone is dead ..."
"... iPhones will only run software cryptographically signed by Apple ... Just because Apple has sold the phone to a customer and that customer has created a passcode does not mean that the close software connection ceases to exist; Apple has designed the phone and software updates so that Apple's continued involvement and connection is required."
"More generally, the burden associated with compliance with legal process is measured based on the direct costs of compliance, not on other more general considerations about reputations or the ramifications of compliance".
The DoJ is just re-iterating what everyone knows, which is that Apple can push software updates to a phone.
That does not in any way explain why Apple should be compelled to write new software, that they would not otherwise choose to write, before pushing it as an update.
Apple retained the ability to push updates to improve the performance and security of products, not to make it easier to hack them. There is a difference!
It might, depending on the analytical outcome of the three-factor test introduced in the _New York Telephone_ case. (This case was decided before compelled pen register assistance was prescribed by Congressional legislation.)
The case itself is illustrative and enlightening: https://supreme.justia.com/cases/federal/us/434/159/case.htm...
"The power conferred by the [All Writs] Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice..."
The factors are:
(1) whether the third party is "so far removed as a third party from the underlying controversy that its assistance could not permissibly be compelled by the order of the court"
(2) Whether the burden placed on the third party is "unreasonable"
(3) Whether the assistance is "essential to the fulfillment of the purpose" of the warrant
It's unfortunate that Hacker News isn't commented upon by more attorneys, and that most news articles don't link directly to the legal filings in these cases; much confusion and false assumptions about the law could be clarified.