>> "The thing is, if privacy advocates lose this fight, we have a greater chance of losing the next one."
> you could say that about any skirmish in the privacy debate. Every legal case sets some precedent that affects the next one.
Yes and no. The role of the judiciary is to interpret and implement the law. They are not supposed to create law. That is the job of Congress.
This case is so unprecedented that there's a chance the precedent here will effectively create a law. It will come down to a matter of interpretation by the justices. If they rule against Apple, the message is, "This is covered by the AWA, and the AWA was intended to compel companies to weaken their products' security". In that case, many of us in the public feel that the justices will have unfairly created a new law.
If they rule for Apple, the message is, "This is an undue burden being forced upon Apple. That is not the intention of the AWA. If you want them to comply, go to Congress and ask for a law"
Obama was a lawyer, he knows this, and in light of the public's disapproval of mass surveillance, he chose the path (the AWA) that is most likely to get him what he wants, which is to grant law enforcement access to all iPhones. The public currently will not re-elect congressmen and women who push through new surveillance laws.
>This case is so unprecedented that there's a chance the precedent here will effectively create a law.
This case is actually super with precedent, if you ignore the digital nature of things. Apple has keys to a safe (digital signage key for iOS updates), FBI has warrant to search safe, court orders keys to safe. Fourth amendment doesn't apply because Apple can't incriminate themselves by giving signage keys.
There is the whole "asking Apple to write the OS changes and sign it", instead of just "Asking Apple for the signing keys." I would call this a compromise ruling to avoid having Apple have to give the actual for real skeleton key.
Asking a judge to not force Apple to surrender the digital signage keys requires more subtle arguments about burden. Asking for any ruling on encryption itself is asking a court to legislate from the bench
The precedent you reference doesn't really apply because, as you say, the FBI isn't actually asking for the signing keys.
The big difference between what's being asked and the signing keys is that Apple already have the signing keys. There is certainly plenty of precedent for a court to ask Apple to produce something they already have, but less precedent for a court to ask Apple to make something that doesn't exist yet.
In the analogy, the FBI doesn't have a warrant to "search the safe". What is protected by the signing keys is the ability to distribute iOS updates, but the court wants the data on the phone, which is protected by a different key Apple don't have.
A more correct non-IT analogy is to imagine that the safe has two locks: one pickable, the other unpickable. Apple don't have a matching key for either, but knows how to cut a key for the unpickable one. The FBI has asked Apple to set up a key-cutting facility, definitely only for use on this one occasion, so they can make a key for the unpickable lock.
> you could say that about any skirmish in the privacy debate. Every legal case sets some precedent that affects the next one.
Yes and no. The role of the judiciary is to interpret and implement the law. They are not supposed to create law. That is the job of Congress.
This case is so unprecedented that there's a chance the precedent here will effectively create a law. It will come down to a matter of interpretation by the justices. If they rule against Apple, the message is, "This is covered by the AWA, and the AWA was intended to compel companies to weaken their products' security". In that case, many of us in the public feel that the justices will have unfairly created a new law.
If they rule for Apple, the message is, "This is an undue burden being forced upon Apple. That is not the intention of the AWA. If you want them to comply, go to Congress and ask for a law"
Obama was a lawyer, he knows this, and in light of the public's disapproval of mass surveillance, he chose the path (the AWA) that is most likely to get him what he wants, which is to grant law enforcement access to all iPhones. The public currently will not re-elect congressmen and women who push through new surveillance laws.
P.S. I like your site vayable.com