I disagree. The FBI's job should be to pursue any and all opportunities at gathering evidence for its cases, within the bounds of the law. It is the job of the courts to sketch out those boundaries by interpretation and precedent. If everything is working properly, the courts will decide that the All Writs Act does not grant the Government this power. Then this matter will be settled and the FBI will have to find some other avenue.
Looking at it from the other angle, I think it's a bad precedent if the FBI were to refrain from pursuing an avenue which it believes it may have legal standing to pursue. At that point, it runs the risk of a downward spiral of second-guessing and apprehension.
I don't have a problem with the FBI making a request that is in accordance with their jobs. Let the courts sort it out.
What I do have a problem with is this little fucking PR parade Comey's going on to try to lobby the public against Apple in particular, and privacy and cryptography in general. He's been completely rhetorical this whole time, ignoring the fact that what he's asked for is a huge fucking deal, and forcefeeding "terrorism", "public safety" and other trigger words to get the public to rally behind something they couldn't possibly understand.
Make the request and shut your stupid mouth, Comey.
Consider the Geneva Convention. It's every combatants' obligation to see that the Convention's requirements are upheld. Disobeying direct orders to the contrary is a requirement.
This ... creates certain elements of friction and pressure.
In no world can the FBI be viewed as 'combatants.' They're a civilian law enforcement agency, and the Geneva convention definitely _does not_ apply to them. Ethically, yes, they shouldn't be doing this, but we can't pretend rules of war apply to a civilian agency with 0 role in combat.
My point is that high-order directives -- to obey the terms of the Geneva Convention, or to uphold the rights enumerated and limits of government stated in the US Constitution -- can and do in fact devolve upon all whom they govern.
Not merely courts.
Yes, I expect that courts would be tasked with drawing boundaries where extraordinary discretion is required. But throwing up your arms and saying "hey, we're the executive branch, not my problem" doesn't cut it. In fact that can very well land your ass in gaol or at the receiving end of a civil rights lawsuit (modulo limitations on liability for government officials, but that's another worm of cans).
Incidentally, I strongly recommend developing at least one or two abstract thinking skills if you're going to play around here. Helps smooth things along.
I strongly recommend you learn to debate without resorting to ad hominem attacks. Helps keep things thoughtful and productive, and not just here either. :)
An ad hominem isn't a random insult. It is a dismissing of an argument because of an irrellevant personal trait. E.g., yo're double jointed therefore you know nothing of erlang lathe forming.
Relevant personal attributes, especially those which address credibility, are generally in bounds (see also "the asymmetry of bullshit", a/k/a Brandolino's law).
And observations of personal character not used as basis for argument aren't ad homs. Full stop.
If you're going to use logical fallacies, try to use them correctly.
And while the initial comment whose tone you disagreed with, and the paragraph above may not be seen as acceptable on HN (I tend to feel they skate within bounds), both point out a category of error, and steps a person might take to correct them. Insufficient abstract interpretation in the first case, incorrect use of specific terminology in this case.
Of course, you could simply insist on being wrong. But that's your call.
Yes, I agree it wasn't ad hominem, but you should really back up your insults. You just threw that out of left field, and provided no evidence that I lacked 'abstract thinking skills' or how they related to the rest of your comment at all. If the 'abstract thinking skills' was about inferring the context of your previous comment, I really hope you never accidentally miss some context in your life.
You can prove your point without being a dick, especially when being a dick does nothing to help prove your point. A little politeness goes a long way.
The parent comment was not making that comparison. They were not trying to imply that the FBI is a combatant on a battlefield. It was meant to be an example of friction caused by multi-directional pressure (in the FBI's case, to strictly obey the law and yet to be aggressive in solving crimes by any means within the law).
I guess I'm confused then, because that's precisely what the FBI is doing, and that's exactly what the grandparent comment is doing. The FBI didn't try to side-step the courts, it brought it to them directly and is indeed strictly following the law.
> it brought it to them directly and is indeed strictly following the law
If this is your definition of "strictly following the law" imagine yourself in a scenario where the FBI brings a lawsuit against you: risk going to court, losing, and going to jail, or hiring a lawyer and fighting something with dubious constitution grounding.
There are so many different ways to lose when the FBI plays this game against private companies or individual. They sue you because they want to put you in jail, not clarify the law.
If you're a strongly opinionated CEO of a company with a war chest you fight it and at the very least stay out of jail. If you're the CEO of a small ISP/web hosting company you suck it up, do what they say, and follow the gag order.
What would you propose then? Obviously someone needs to fight the law enforcement agents making these requests; we can't just tell the FBI "you just have to follow the law exactly as it's written, you can't challenge anything" because that would severely tie its wrists.
I do agree it's not quite fair to put defense costs on the company/individual that needs to fight it, but the alternative I can think of is a public defender type system that I don't think many people would be happy with for corporations.
> "you just have to follow the law exactly as it's written, you can't challenge anything"
Isn't that what we expect from all people and institutions? moreover, we expect the people to be in control of "challenges" to the laws, and the laws themselves. Much of what's wrong with government comes from government creating self-serving laws.
Laws are rigid and don't keep up with the changing times. You might argue that that's the government's fault for not passing new laws, and that's a fair point. However, the judicial has set a precedent over the past 200 years or so of interpreting laws to fit with changing circumstances. Given that's the case, it's hard to blame the FBI for taking advantage of that.
The laws are what the courts interpret them to be; no more and no less. Like it or not, strict interpretation is a fantasy and has been since the late 1700s.
The FBI is part of the executive branch, as such we expect it to do the bidding of the government, which in turn we expect to the bidding of the populace. As such, no, of course the FBI should not pursue every legal opportunity when that would run counter to the governments intentions or beliefs.
> FBI's job should be to pursue any and all opportunities at gathering evidence
That's only true in a vacuum. In reality, every tinpot tyrant on the planet would like to have the US set a low bar so they can insist that US tech companies agree to their similar demands.
True but irrelevant. It isn't inherently law enforcement's job to probe constitutionality. That's like saying law enforcement should probe just how much force they should use against you before they get sued by the DoJ.
It's just as valid an argument to say they should be cautious about constitutionality and still get their job done.
It's hardly irrelevant. The parent post said "every tinpot tyrant on the planet would like to have the US set a low bar". In this case, it's important to remember that the executive isn't the only branch of government to have an opinion here.
No one said anything about probing constitutionality. There is a legitimate question about the limits of the All Writs Act. So they asked a court to issue the request.
Law enforcement must work within the confines of the law, but when there is a question of what those confines are -- and in the legal sense, that is most definitely an unanswered question here -- they ask the courts to decide.
Once the courts rule, I expect for the FBI/etc... to act in accordance with the ruling. And if you don't like the ruling, talk to Congress.
Looking at it from the other angle, I think it's a bad precedent if the FBI were to refrain from pursuing an avenue which it believes it may have legal standing to pursue. At that point, it runs the risk of a downward spiral of second-guessing and apprehension.