[tptacek]

I'm sorry, but this still isn't a coherent argument. The Fourth Amendment delegates to the court the decision over whether a search is or isn't reasonable. It is a court that has ordered this particular search. The court is part of the government.

If you can't trust any part of the government, the Fourth Amendment is immaterial: you can't trust the entity to whom is entrusted the power to adjudicate reasonableness.

[aniro]

The power of the courts is kept in check by the Legislature. They are not above elements of mistrust.

The court is compelling a third party to perform an act that really isn't part of a search and seizure of items.

Search and Seizure as defined by 4A is over and done with. The Prosecution has searched the "places to be searched" and is in possession of the "persons or things to be seized."

Now can it compel Apple to make them useful? (Potentially useful, as even the State has argued there likely isn't really any useful evidence there anyway.. sorta makes this whole thing look like a dog and pony show.)

[tptacek]

I don't think the legislature helps you here, because one of the very first things the legislature did, when it was populated with the framers and signers of the Constitution, was to delegate to the courts the power to compel third parties to assist investigations.

[aniro]

And Apple is arguing that the "All Writs Act" to which you refer is not authority to demand whatever you damn well please, from anyone, at any time. They are arguing that there are well established limits to that authority and that the judiciary is overstepping its bounds here and need defer judgement to elected representatives (the legislature).

[tptacek]

I don't think this is accurate. To wit: I don't think Apple's argument is that the limits they're seeking are well established (they are not), only that they are important and sound.

Either way, Congress isn't a check on the Supreme Court. It's typically rather the other way around.

[aniro]

Application of the All Writs Act in this manner is unprecedented. The conditions under which it may be applied are well defined and are not met for this application.

The Supreme Court isn't a factor at this stage.

"Typically" you are correct. The formal method for checking the power of the Judiciary is for Congress to remove Judges from the bench.

Apple is arguing that All Writs doesn't grant the authority that is being used. If that authority is to be sought then it will have to come from Congress. At least one Judge agrees.

[tptacek]

That's the nature of the AWA; it's a catch-all. Every new technology or social institution that appears is going to create a new "unprecedented" use of the AWA. But the underlying principle of the AWA is so simple that it was one of the first things that came before Congress: the people are entitled to every person's evidence, and if a third party stands in the way of that, the courts have the right to compel their assistance.

[JoeAltmaier]

Its an electronic search of a device in the FBI's possession. Clearly this is a modern issue that exceeds the language of the Constitution etc. Its a fair question - how much extra work can a manufacturer be compelled to do for the FBI, to enable them to understand the device/information they have already seized? The word 'search' is being stretched to the breaking point here.

[tptacek]

I do not concede the point that "electronics" somehow bring controversies outside the scope of the Constitution. The Constitution didn't foresee electrical power, automobiles, or telephony either. Human air travel was a fantasy when the Constitution was drafted, and we didn't have to amend it to deal with airspace controversies.

What I do think is that people who are intimately involved with new technologies will tend to believe that the complexities of their technologies must somehow swamp the Constitution.

[JoeAltmaier]

I wish that wasn't true. But govt seems to think that way. Personally I think searching my laptop ought to be covered under freedom of the press, but it isn't. Email should get the same protections as snail mail, but no love there.

No, its not the technologists who don't get it.

Anyway to the point: we need to clarify if searching my house, and searching my person, and searching my laptop, and searching my cloud-based email history are in the same class. Hell, even searching my breath or blood isn't protected like they should be. Its a long way from clear, what Constitutional protections are extended to modern situation and which aren't. Technology has challenged everything we thought we knew.

[ethbro]

Fair point. What are the laws on producing evidence, whereby the evidence constitutes a challenge to review?

E.g. If I was ordered to produce logs that may be evidence in a case, and I only had and only produced a 10GB+ text log with a single line the warrant was interested in. Can a warrant order me to parse the log to find the relevant information?

Furthermore, at what point does a digital space become similar to a physical space? When I can carry 3 hard drives that can contain almost as much information as the Library of Congress print collections, is it reasonable to think of them as "one thing" for legal purposes? In that if you have access to the physical container, you have access to all its contents?

[aniro]

If I remember, Lavabit attempted just such a "Big Sky" tactic with the logs (or a similar set of files) in their case and it was deemed a transparent attempt to obfuscate.

[ethbro]

That was the SSL key delivered on 11 pages of printout in 4pt type. A bit less arguable than compelling someone to find the needle in their haystack for you.

[1] http://www.newyorker.com/tech/elements/how-lavabit-melted-do...