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Comment by wildmusings | Hacker News Reader

I think Apple is legally in the wrong. What the law should be is a different issue, though I also side with the government in this particular case. I don't think the government should be able to force Apple to ship backdoored phones to customers. But I think that the government should be able to require Apple to use its capabilities to hack particular devices with a court order. In other words, Apple should be free to make phones they themselves cannot hack, but not to refuse to help hack a phone that the government has a warrant for.

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I'm not a lawyer, but I found the ruling from New York pretty interesting.

At the heart of the matter seems to be: should congress have to explicitly disallow the government from doing anything it wants? There is extensive legislation saying when companies like (or similar to) Apple need to comply with law enforcement. They are relatively new (the 90s). This means congress has considered the issue extensively, and ultimately decided to not force a company like Apple to comply with law enforcement in certain circumstances. The DOJ wants that to mean that they can still force them. However, the Judge is saying that, effectively, since the issue has been debated and congress has not forced companies Apple to help, this is a legislative choice, and thus being able to force Apple to help through the all writs act would violate the separation of powers.

Basically, if you believe the DOJ's line of thought, congress could decide not to pass a bill giving the courts the ability to do something, then the courts could still use the all writs act to give themselves that power. Because there is no law outlawing it.

But I think that the government should be able to require Apple to use its capabilities to hack particular devices with a court order.

That's not the question, though: the question is whether the All Writs Act already grants that power, or whether a new piece of legislation is required.

I think that Apple is right that it is more conservative for the courts to construe the existing legislation narrowly, since the Government always has the option to put specific legislation before Congress to remove all doubt.

Legislation shouldn't be construed broadly or narrowly. It should mean what it says. Sometimes that's called 'narrowly', but that's probably in contrast to approaches where the law means whatever you want it to mean. The All Writs Act is a broad law. It grants the courts the broad authority to issue whatever orders are "necessary and appropriate" in order to enforce their judgments, so long as its "agreeable to the usages and principles of law." Congress is free to pass revisions to the All Writs Act if it pleases.

It's all very well to say "It should mean what it says.", but this is just begging the question - frequently what it says is imprecise, so the meaning is open to interpretation. In the case of the All Writs Act, for example, the Supreme Court found a three-pronged test in New York Telephone.

It's precisely because it is a very broad law that it should be construed narrowly - in this case, that it is intended to be able to compel the co-operation of parties with some real involvement in a case, not to authorise open-ended civil conscription in service of the judicial branch.

The issue is there's no way to limit the hack to "particular devices." The software that the government wants could be used to hack any iPhone.

Of course there is. Every modern iPhone has a unique ID and its own private key.

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