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Comment by rdpickard | Hacker News Reader

(disclaimer; not a lawyer) How do you see there being probable cause for the issuance of a warrant? My reading of the FBI-Apple-CDCal-Govt-Reply document (page 2 / line) was that there was not forthcoming or ongoing attack, but evidence of the attack that Farook had executed.

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Probable cause? The phone's user shot 22 people. The phone itself belongs to the county, so legally, they don't even need a warrant, but if there isn't cause to issue a warrant in this case, there's never been such cause in any case.

But the phone has no (additional) prosecutorial value against Farook and Apple itself is not in possession of any evidence or information that has to do with the attack, which seems to be the reason why the FBI is using the All Writs Act.

What i am trying to figure out is if the FBI is saying that there is evidence on the phone of future attacks, or information about co-conspirators, or some other material that would lead to additional action. From what I have read, there is no indication that is the case.

What is it the FBI is gaining by unlocking the phone? Other than a legal precedent.

You have no idea what the phone contains, neither does the DOJ, and the whole point of the investigation is to resolve that question.

Not knowing what is on the phone is my point. The FBI is asking for a method to access information on a specific device that impacts all devices of the same type. If there is not a stated reason for positive action, this seems to be unreconcilable with the FBI dismissing concerns about this being a violation of the fourth amendment.

However, I don't know enough about the law to know if probable cause means to take action regardless of the outcome of that action. That seems to be slippery slope toward justified constant mass surveillance.

The whole point of a warrant is to allow investigators to resolve the question of whether evidence is or isn't located somewhere. By your logic, any time a judge issues a warrant, they might as well issue a conviction at the same time, because the question of what the evidence says needs (in your view) to be settled before the warrant issues!

That isn't the intent of my question about the warrant. As I understand it a judge would issue a warrant if there was probable cause that execution of the warrant would prove or disprove the procecution's case against a defendant.

From what I've read, the FBI hasn't made such a claim. Only that it needs to be accessed because Farook committed a crime. The determination of his guilt does not rest on some data stored in the phone.

Going back to my original question, what does the FBI gain in the matter of this case by accessing one device in a way that compromises all existing and future devices? And is the, what I interpret to be a, massive imbalance between cost and gain of the action so great that it represents a threat to the 4th amendment.

The disclaimer that I'm not a lawyer was not intended to be cheeky, but an honest show of ignorance of how these kinds of questions are treated in the judiciary.

They literally have no idea what's on the phone; they're speculating that there might be something useful. A search warrant for searching the possessions of someone who committed a terror act is not out of the ordinary. But I agree with your conclusion.

Don't they have backups which could provide some probability the phones may contain relevant evidence?

Right, that makes sense. I don't have the link handy but the aclu post from a few days ago about a method to brute force the phone by backing up and restoring disk images after a wipe seemed reasonable to me. I also think that the fact that the phone wasn't farook's property but San bernardino government's is a strong argument that there is no expectation of privacy on that particular phone.

It's probable cause for the warrant against (??) Apple that I haven't wrapped my head around. Since apple has no known or suspected connection with the crime itself.

Who wants to start a key escrow company :)

[Encryption, Privacy Are Larger Issues Than Fighting Terrorism, Clarke Says : NPR](http://www.npr.org/2016/03/14/470347719/encryption-and-priva...)

This is in no way responsive to what I wrote.

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