Another Word For It Patrick Durusau on Topic Maps and Semantic Diversity

I am deeply puzzled by commentators who find the analysis by Bobby Chesney and Steve Vladeck in A Coherent Middle Ground in the Apple-FBI All Writs Act Dispute? praise worthy.

Their position is captured by:

…
To cut to the chase, our view is that, properly understood, the All Writs Act should be read to authorize the kind of order the government has sought in these cases only when the recipient is compelled to help the government utilize existing vulnerabilities in its software, and not when the order instead directs the recipient to devote its resources to creating material new software vulnerabilities which can then be exploited by the government. (emphasis in original)
…

Chesney and Vladeck’s analysis, like some treatments of this issue, ignore the deciding of United States v. New York Telephone Company, 434 U.S. 159 (98 S.Ct. 364, 54 L.Ed.2d 376) by 5 to 4, with four justices dissenting on the issue of the district court’s authority to order the telephone company to provide “assistance” to the government.

The dissent by Justice Stevens that focuses on the All-Writs Act:

Even if I were to assume that the pen register order in this case was valid, I could not accept the Court’s conclusion that the District Court had the power under the All Writs Act, 28 U.S.C. 1651(a), to require the New York Telephone Company to assist in its installation. This conclusion is unsupported by the history, the language, or previous judicial interpretations of the Act.

The All Writs Act was originally enacted, in part, as § 14 of the Judiciary Act of 1789, 1 Stat. 81.¹⁵ The Act was, and is, necessary because federal courts are courts of limited jurisdiction having only those powers expressly granted by Congress,¹⁶ and the statute provides these courts with the procedural tools—the various historic common-law writs—necessary for them to exercise their limited jurisdiction.¹⁷ The statute does not contain, and has never before been interpreted as containing, the open-ended grant of authority to federal courts that today’s decision purports to uncover. Instead, in the language of the statute itself, there are two fundamental limitations on its scope. The purpose of any order authorized by the Act must be to aid the court in the exercise of its jurisdiction;¹⁸ and the means selected must be analogous to a common-law writ. The Court’s opinion ignores both limitations.

The Court starts from the premise that a district court may issue a writ under the Act “to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.” Ante, at 172. As stated, this premise is neither objectionable nor remarkable and conforms to the principle that the Act was intended to aid the court in the exercise of its jurisdiction. Clearly, if parties were free to ignore a court judgment or order, the court’s ability to perform its duties would be undermined. And the court’s power to issue an order requiring a party to carry out the terms of the original judgment is well settled. See Root v. Woolworth, 150 U.S. 401, 410-413, 14 S.Ct. 136, 138, 37 L.Ed. 1123. The courts have also recognized, however, that this power is subject to certain restraints. For instance, the relief granted by the writ may not be “of a different kind” or “on a different principle” from that accorded by the underlying order or judgment. See id., at 411-412, 14 S.Ct., at 138-139.¹⁹

More significantly, the courts have consistently recognized and applied the limitation that whatever action the court takes must be in aid of its duties and its jurisdiction.²⁰ The fact that a party may be better able to effectuate its rights or duties if a writ is issued never has been, and under the language of the statute cannot be, a sufficient basis for issuance of the writ. See Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 1028, 39 L.Ed.2d 123; Commercial Security Bank v. Walker Bank & Trust Co., 456 F.2d 1352 (C.A.10, 1972); J. Moore, B. Ward, & J. Lucas, 9 Moore’s Federal Practice ¶ 110.29 (1975).

Nowhere in the Court’s decision or in the decisions of the lower courts is there the slightest indication of why a writ is necessary or appropriate in this case to aid the District Court’s jurisdiction. According to the Court, the writ is necessary because the Company’s refusal “threatened obstruction of an investigation . . ..” Ante, at 174. Concededly, citizen cooperation is always a desired element in any government investigation, and lack of cooperation may thwart such an investigation, even though it is legitimate and judicially sanctioned.²¹ But unless the Court is of the opinion that the District Court’s interest in its jurisdiction was coextensive with the Government’s interest in a successful investigation there is simply no basis for concluding that the inability of the Government to achieve the purposes for which it obtained the pen register order in any way detracted from or threatened the District Court’s jurisdiction. Plainly, the District Court’s jurisdiction does not ride on the Government’s shoulders until successful completion of an electronic surveillance.

If the All Writs Act confers authority to order persons to aid the Government in the performance of its duties, and is no longer to be confined to orders which must be entered to enable the court to carry out its functions, it provides a sweeping grant of authority entirely without precedent in our Nation’s history. Of course, there is precedent for such authority in the common law the writ of assistance. The use of that writ by the judges appointed by King George III was one British practice that the Revolution was specifically intended to terminate. See n. 3, supra. I can understand why the Court today does not seek to support its holding by reference to that writ, but I cannot understand its disregard of the statutory requirement that the writ be “agreeable to the usages and principles of law.”

The order directed against the Company in this case is not particularly offensive. Indeed, the Company probably welcomes its defeat since it will make a normal profit out of compliance with orders of this kind in the future. Nevertheless, the order is deeply troubling as a portent of the powers that future courts may find lurking in the arcane language of Rule 41 and the All Writs Act.

I would affirm the judgment of the Court of Appeals.

….

15

The statute was also derived from § 13 of the Judiciary Act, which concerned writs of mandamus and prohibition, 1 Stat. 80, and a statute dealing with writs of ne exeat, 1 Stat. 334. The All Writs Act now reads:

“(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.”

16

This proposition was so well settled by 1807 that Mr. Chief Justice Marshall needed no citation to support the following statement:

“As preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the constitution, or by the laws of the United States.

“Courts which originate in the common law possess a jurisdiction which must be regulated by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point, no member of the bench has, even for an instant, been dissatisfied.” Ex parte Bollman, 4 Cranch 75, 93, 2 L.Ed. 554.

17

See Harris v. Nelson, 394 U.S. 286, 299.

18

This Court has frequently considered this requirement in the context of orders necessary or appropriate in the exercise of appellate jurisdiction. See J. Moore, B. Ward, & J. Lucas, 9 Moore’s Federal Practice &Par; 110.27-110.28 (1975). Here, we are faced with an order that must be necessary or appropriate in the exercise of a district court’s original jurisdiction.

19

These restraints are necessary concomitants of the undisputed fact that the All Writs Act does not provide federal courts with an independent grant of jurisdiction. McIntire v. Wood, 7 Cranch 504, 3 L.Ed. 420; Rosenbaum v. Bauer, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743. The factors mentioned above may be relevant in determining whether the court has ancillary jurisdiction over the dispute. See Dugas v. American Surety Co., 300 U.S. 414, 57 S.Ct. 515, 81 L.Ed. 720; Labette County Comm’rs v. Moulton, 112 U.S. 217, 5 S.Ct. 108, 28 L.Ed. 698; Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 417 F.2d 728 (1969). In this case, the District Court’s order was entered against a third party—the Telephone Company. The Court never explains on what basis the District Court had jurisdiction to enter this order. Possibly, the District Court believed that it had ancillary jurisdiction over the controversy, or that the failure of the Company to aid the Government posed a federal question under 28 U.S.C. 1331. See Board of Education v. York, 429 F.2d 66 (C.A.10 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 968, 28 L.Ed.2d 237. Since I believe that the District Court could not enter its order in any event since it was not in aid of its jurisdiction, I do not find it necessary to reach the question where there was jurisdiction, apart from the All Writs Act, over the “dispute” between the Government and the Telephone Company. However, the Court’s failure to indicate the basis of jurisdiction is inexplicable.

20

The Court’s failure to explain why the District Court’s order was in aid of its jurisdiction is particularly notable when compared to the rationale of the prior Court cases on which it relies. See, e. g., Harris v. Nelson, 394 U.S. 286, 299, 89 S.Ct. 1082, 1090, 22 L.Ed.2d 281 (“the habeas corpus jurisdiction and the duty to exercise it being present, the courts may fashion appropriate modes of procedure . . . . Where their duties require it, this is the inescapable obligation of the courts”) (emphasis added); FTC v. Dean Foods Co., 384 U.S. 597, 604, 86 S.Ct. 1738, 1742, 16 L.Ed.2d 802 (injunction issued under All Writs Act upheld because it was necessary “to preserve the status quo while administrative proceedings are in progress and prevent impairment of the effective exercise of appellate jurisdiction “) (emphasis added).

The Court apparently concludes that there is no functional distinction between orders designed to enable a party to effectuate its rights and orders necessary to aid a court in the exercise of its jurisdiction. Ante, at 175 n. 23. The Court reaches this conclusion by pointing out that the orders in cases such as Harris v. Nelson, supra, protected a party’s rights. This is, of course, true. Orders in aid of a court’s jurisdiction will usually be beneficial to one of the parties before the court. The converse, however, is clearly not true. Not all orders that may enable a party to effectuate its rights aid the court in its exercise of jurisdiction. Compare Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166, with FTC v. Dean Foods Co., supra.

21

A citizen is not, however, free to forcibly prevent the execution of a search warrant. Title 18 U.S.C. 2231 imposes criminal penalties on any person who “forcibly assaults, resists, opposes, prevents, impedes, intimidates, or interferes with any person authorized to serve or execute search warrants . . . .” This section was originally enacted as part of the Espionage Act of 1917, see n. 6, supra, and is the only statutory provision imposing any duty on the general citizenry to “assist” in the execution of a warrant.

….

As Justice Stevens points out:

…
If the All Writs Act confers authority to order persons to aid the Government in the performance of its duties, and is no longer to be confined to orders which must be entered to enable the court to carry out its functions, it provides a sweeping grant of authority entirely without precedent in our Nation’s history. Of course, there is precedent for such authority in the common law the writ of assistance. The use of that writ by the judges appointed by King George III was one British practice that the Revolution was specifically intended to terminate. See n. 3, supra. I can understand why the Court today does not seek to support its holding by reference to that writ, but I cannot understand its disregard of the statutory requirement that the writ be “agreeable to the usages and principles of law.”
…

the construction urged by Chesney & Vladeck and the slim majority in United States v. New York Telephone Company, 434 U.S. 159 (98 S.Ct. 364, 54 L.Ed.2d 376), is a parallel to one of the reasons for the American Revolution.

The writ to compel Apple to assist the FBI is the

…portent of the powers that future courts may find lurking in the arcane language of Rule 41 and the All Writs Act.

that Justice Stevens foresaw in his dissent.

Rather than scrambling for some tortured “middle ground” with the FBI, legal scholars should be lining up to urge correction of the mistake made in United States v. New York Telephone Company, 434 U.S. 159 (98 S.Ct. 364, 54 L.Ed.2d 376).

The time has come to end the threat of slavery for both corporations and individuals under the All-Writs Act.

The portions of the opinions quoted above are from the Legal Information Institute (LII) at Cornell University Law School. Supporting the LII fosters public access to legal resources.

Government hints it may demand iOS source code, signing key by Gregg Keizer.

Gregg points out that the latest brief by the DOJ in the San Bernardino case, at footnote 9, page 22, the government says:

9 For the reasons discussed above, the FBI cannot itself modify the software on Farook’s iPhone without access to the source code and Apple’s private electronic signature. The government did not seek to compel Apple to turn those over because it believed such a request would be less palatable to Apple. If Apple would prefer that course, however, that may provide an alternative that requires less labor by Apple programmers. See In re Under Seal, 749 F.3d 276, 281-83 (4th Cir. 2014) (affirming contempt sanctions imposed for failure to comply with order requiring the company to assist law enforcement with effecting a pen register on encrypted e-mail content which included producing private SSL encryption key).

The DOJ hints that it will enlist the courts to assist it in the theft of Apple’s property and as Gregg further points out, may still want to force Apple to assist it:

Even if the Court ordered Apple to provide the government with Apple’s cryptographic keys and source code, Apple itself has implied that the government could not disable the requisite features because it “would have insufficient knowledge of Apple’s software and design protocols to be effective.” (Neuenschwander Decl. ¶ 23.) (at page 28 of the latest government brief)

Powerful briefs have been filed in support of Apple but its time to take the factual gloves off.

The expansive claims of the government are based solely on the entirely fictional notion that it is in hot pursuit of a terrorist threat.

If there were any terrorist threat to speak of, one would expect the TSA to have found a terrorist, at least one, this many years after 9/11. Some fifteen years this next September 11th. But it hasn’t.

Yes, fourteen people died during the San Bernardino attack, which the government has yet to show was anything more than a work place related dispute that erupted at a holiday party.

No government, not even the United States government, is entitled to declare facts not in evidence and expect others, especially fact finders such as courts, to meekly accept them as true.

The DOJ keeps posturing about the government’s interest. Apple and others should put that interest to a factual test.

Government agents are engaging in budget justifying behavior is a far less compelling reason to violate Apple’s constitutional rights than an actual terrorist threat.

But the so-called terrorist threat doesn’t exist. One suspects that is why the DOJ has omitted any factual basis for its claims. It could easily whistle up all the FBI arrests for terrorism, but that would expose the recruitment of the mentally ill people who are then supplied by the FBI to make those arrests.

I’m guessing that would diminish the government’s case in the eyes of the fact finder.

In some cases the government has a compelling interest, but fictional compelling interests don’t count.

The DOJ should be challenged at every step of the process, building a factual record that consists of everyone who had any part in the San Bernardino investigation, conversations with Apple, staff of the various DOJ offices, along with office notes, records, and phone logs.

If the interest of the government is so compelling, then it should not be reluctant to make a factual demonstration for the record.

Will the DOJ build a factual record? Will Apple demand it?

A recent post about the FBI claims in the iPhone case reminded me of this Dilbert cartoon, where Dogbert advises Dilbert:

Maybe for your first crime you shouldn’t put your name and address on it and distribute ti to ten thousand strangers.

There is a similar rule for lying to judges, the first rule being never to lie to a judge, its just bad practice but especially never lie when it can be proven that you are lying.

Representatives of law enforcement broke that second rule and compounded the error by lying in written pleadings.

In the iPhone case, Daniel Kahn Gillmor makes an air-tight case for the FBI having lied to the court both in its initial application and in subsequent pleadings about the “auto-erase” feature of the iPhone in question. One of the FBI’s Major Claims in the iPhone Case is Fraudulent.

In a nutshell, the FBI has attempted to mis-lead the court into thinking the “auto-erase” feature dooms the FBI to ten tries at guessing the password. A lay person might think so but with just a little thought, you make a backup of the NAND flash memory where the encrypted data is stored. Try to your heart’s content, but only ten attempts before you have to restore the memory.

In addition to lying to the court, the FBI gambled on the court possibly lacking the technical background to realize the falseness of the FBI’s claims.

That’s more rank than outright lying to the court. All parties to litigation have an affirmative obligation to see that the court is fully and accurately informed of the facts before it.

After denying the government’s claims in the iPhone case, the court should refer the attorneys for the government to the Califoria Bar association for disciplinary hearings.

Orenstein Denial of Government Motion

Posted at the Electronic Freedom Foundation site, Judge Orenstein (Eastern District, New York), denied the FBI’s request using the All Writs Act to access an iPhone.

The opinion runs 50 pages so I have only skimmed the beginning but wanted to pass it on for your consideration.

More to follow after a reasonable time to read and digest its contents.

One for the good guys!