[Cryptography] USG v. Apple, Apple Motion to Vacate Decrypt Order

[John Levine]

>Doesn’t this all boil down to a 2nd Amendment argument?
>
>Namely, if it is within my personal power to protect my
>privacy using whatsoever weapons or technology I may avail
>myself of, do I have a prima facie right against the
>powers of my state arrayed against me as their citizen?

This is what some might call an intriguing and innovative
interpretation of the 2nd amendment, and others might call hooey.

For the first two centuries of the American republic, the 2nd
amendment was considered to empower each state to have a citizen army
(the "well regulated militia") which was a big deal before the 1860s
in southern states for putting down slave rebellions.  Since the 1960s
a revisionist interpretation ignores the militia bit and claims it's a
personal right to own weapons, a theory recently endorsed by a narrow
majority of the US Supreme Court.

Throughout all of this, I have never heard of the 2nd amendment being
applied to anything other than guns and physical weapons like
switchblades, dirks, billy clubs and police batons.  It'd be fun to
argue a case that claimed software was a 2nd amendment weapon, but I
doubt it'd get very far.

The Apple brief mostly argues that the government's use of the All
Writs act, a relic from the era when the US government was
bootstrapping itself into existence, was improper since it requires
Apple to create something that doesn't currently exist purely for the
government, unlike normal writs that compel production or records or
in some phone company cases, to use equipment they already had.  They
also as an afterthought make a 1st amendment argument that the
software demanded would be compelled speech, which courts have
consistently disfavored.

The Apple brief is well written and you don't have to follow all the
footnotes to understand it.  Just read it.

R's,
John