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26 February 2016 Can Spies Break Apple Crypto?
Date: Fri, 26 Feb 2016 12:33:23 -0500 The factual posture in the key Supreme Court precedent, New York Telephone, involved a situation where only the subject of the order was capable of providing the assistance at issue. This is the basis for Apple's claim that (to date) the law seems to require that the government not be able to proceed on its own before an All Writs Act order should issue. Of course unique ability to help is not listed as an element in the All Writs Act ... probably because that act is really about preserving court jurisdiction, not making search warrants and the like more effective; that last bit is subsequent judicial gloss if not judicial bending-out-of-shape. Personally, I think Apple has made a good showing on the 'burdensome' prong: if Apple's facts hold up, what it is being asked to do is much, much more work than the Supreme Court approved of requiring in the New York Telephone case. Deciding the case for Apple on that issue allows avoiding all the other sticky factual and constitutional issues, so it could be quite appealing to a judge. --
A. Michael Froomkin, http://law.tm
On Fri, 26 Feb 2016, John Young wrote: From Cryptography mail list 26 February 2016 Henry Baker: "The All Writs Act also requires that the govt prove to the Court that the 3rd party's efforts are *required* -- i.e., that the govt has *exhausted* all other means to achieve the desired result. In particular, that *all* departments of the govt have been consulted, and *none* of them has the required capabilities.
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