I think the FBI is acting like there was a pre-emptive requirement for Apple to build a system to permit access.
The reason I say that, is that now that it has been proven the phone does not permit access, the FBI is trying to use a warrant to force Apple to break into the phone. But if providing access was never a legal requirement in the first place, why is it Apple's problem now?
Yes, only Apple can do what the FBI wants to do. In my mind, that should not be sufficient, in the absense of a legislative requirement, to force Apple to break a software system against their will--even their own software system.
I mean, let's say the FBI wants to run a sting operation against a gangster. Can a court use All Writs to force some random person to participate in the sting? I would think not.
Let's say law enforcement needs to pull a hard drive from a 30th floor apartment, without alerting the doorman. Can a court use All Writs to force a rock climber to climb up the building and go in the window to get it? Again, I would think not. Even if there was only one rock climber in the entire U.S. who could do what the FBI needed, it doesn't seem likely to me that an All Writs warrant would succeed against that person.
So why should it succeed against Apple? I mean, Apple is the only company that can do what the FBI wants--true. And they did build the phone to prevent access. But there was no requirement to build it any other way, so why would that be relevant?
The question isn't whether Apple has a capability, the question is why can they be forced to use that capability on a phone owned by a 3rd party?
Apple has many capabilities--they're a $500 billion dollar technology company. Which capabilities are not available to the FBI via an All Writs warrant?
You're conflating very different scopes of "capability" and responsibility.
I'll quote the DoJ's legal brief on how Apple is not "far removed" from this phone owned by a 3rd party:
"... the government is seeking to use capabilities that Apple has purposefully retained in a situation where the former user of the phone is dead ..."
"... iPhones will only run software cryptographically signed by Apple ... Just because Apple has sold the phone to a customer and that customer has created a passcode does not mean that the close software connection ceases to exist; Apple has designed the phone and software updates so that Apple's continued involvement and connection is required."
"More generally, the burden associated with compliance with legal process is measured based on the direct costs of compliance, not on other more general considerations about reputations or the ramifications of compliance".
The DoJ is just re-iterating what everyone knows, which is that Apple can push software updates to a phone.
That does not in any way explain why Apple should be compelled to write new software, that they would not otherwise choose to write, before pushing it as an update.
Apple retained the ability to push updates to improve the performance and security of products, not to make it easier to hack them. There is a difference!
The reason I say that, is that now that it has been proven the phone does not permit access, the FBI is trying to use a warrant to force Apple to break into the phone. But if providing access was never a legal requirement in the first place, why is it Apple's problem now?
Yes, only Apple can do what the FBI wants to do. In my mind, that should not be sufficient, in the absense of a legislative requirement, to force Apple to break a software system against their will--even their own software system.
I mean, let's say the FBI wants to run a sting operation against a gangster. Can a court use All Writs to force some random person to participate in the sting? I would think not.
Let's say law enforcement needs to pull a hard drive from a 30th floor apartment, without alerting the doorman. Can a court use All Writs to force a rock climber to climb up the building and go in the window to get it? Again, I would think not. Even if there was only one rock climber in the entire U.S. who could do what the FBI needed, it doesn't seem likely to me that an All Writs warrant would succeed against that person.
So why should it succeed against Apple? I mean, Apple is the only company that can do what the FBI wants--true. And they did build the phone to prevent access. But there was no requirement to build it any other way, so why would that be relevant?