RUTHFULLY YOURS

http://www.wsj.com/articles/apple-is-right-on-encryption-1456877827

The Apple encryption conflict has turned nasty, as the Obama Administration, most Republicans and public opinion turn against the tech company. But, lo, Apple won its first court test on Monday, and its legal briefs against the court order to unlock an iPhone used by the San Bernardino jihadists show it has a better argument than the government.

The FBI is attempting to extract information on Syed Rizwan Farook’s device but has been frustrated by Apple’s encryption. So a California magistrate ordered the company to design a custom version of its operating software that will disable certain security features and permit the FBI to break the password. Apple has cooperated with the probe but argues that forcing it to write new code is illegal.

One confusion promoted by the FBI is that its order is merely a run-of-the-mill search warrant. This is false. The FBI is invoking the 1789 All Writs Act, an otherwise unremarkable law that grants judges the authority to enforce their orders as “necessary or appropriate.” The problem is that the All Writs Act is not a catch-all license for anything judges want to do. They can only exercise powers that Congress has granted them.

Congress knows how to require private companies to serve public needs. The law obligates telecoms, for example, to assist with surveillance collection. But Congress has never said the courts can commandeer companies to provide digital forensics or devise programs it would be theoretically useful for the FBI to have—even if they are “necessary” for a search.

Congress could instruct tech makers from now on to build “back doors” into their devices for law-enforcement use, for better or more likely worse. But this back-door debate has raged for two years. In the absence of congressional action, the courts can’t now appoint themselves as a super legislature to commandeer innocent third parties ex post facto. CONTINUE AT SITE

Actors are a peculiar breed. Ask them to play characters of intellectual depth and the more accomplished deliver convincing performances, no problems. As global-warming worrywart Leonardo DiCaprio demonstrated at this week’s Academy Awards, the trouble starts when they write their own lines

Red-carpet aficionados struggling to figure out how a ‘visceral cinematic experience’ – filmed almost entirely in the snowy landscapes of North America – could prompt a frothy take-home serve of climate alarmism from a leading actor should reflect on Mark Twain’s advice: “Never let the truth stand in the way of a good story, unless you can’t think of anything better”.

Today Twain surely would add: “nor in the way of anthropogenic atmospheric angst or a saving-the-planet pitch, no matter how silly”; especially if you have just won an Oscar for the best bear-ravaged frontiersman this side of Fortress Mountain and are doubling as a UN Messenger of Peace with a special focus on climate change.

On the celebrity frontier the mood this week seemed almost as tense – but not as chilly – as it was on location. Plenty of haute-couture and alarming epidermis on display – from Alicia’s ‘fun and flirty’ Louis Vuitton to Kate’s Ralph Lauren ‘garbage bag’. But fewer animal pelts and bear-hugs than last year.

Leonardo DiCaprio was in the front row, just a short walk from his first Oscar after five nominations. In a dignified acceptance speech, the star heaped praise on best director, Alejandro González Iñárritu, and his USD165 million ‘transcendental’ film, The Revenant.

Mad Max: Fury Road’s sound editor turned up the contrast with an F-bomb. True, not the end of the world. But if Mark Mangini did not hear a pin drop, it was probably because it was drowned out by the voice of his spouse, mother or both. “It’s pretty intense up there,” confided co-winner, David White, in Mangini’s defence. “It’s typically Australians who do the swearing. So the fact that I didn’t swear, I deserve the Oscar just for that.”

But DiCaprio’s speech was scarier than any snarling thing roaring down Fury Road. One bear-hunting man’s ‘epic adventure of survival’ somehow morphed post-production into an eco-allegory about

“man’s relationship to the natural world. A world that we collectively felt in 2015 as the hottest year in recorded history. Our production needed to move to the southern tip of this planet just to be able to find snow. Climate change is real, it is happening right now. It is the most urgent threat facing our entire species, and we need to work collectively together and stop procrastinating. We need to support leaders around the world who do not speak for the big polluters, but who speak for all of humanity, for the indigenous people of the world, for the billions and billions of underprivileged people out there who would be most affected by this. For our children’s children, and for those people out there whose voices have been drowned out by the politics of greed. I thank you all for this amazing award tonight. Let us not take this planet for granted..” (transcript , Kadeen Griffiths, 29 February 2016; author’s bolding).

In a ruling that could have ramifications for Apple’s battle with the FBI over the iPhone of the San Bernardino terrorist, a federal magistrate-judge in Brooklyn yesterday denied the government’s request in a similar case to compel Apple to assist the government in searching the iPhone of a suspected narcotics trafficker. Magistrate Judge James Orenstein rejected the Justice Department’s claim that the All Writs Act authorizes the court to coerce Apple’s cooperation.

An unsettling aspect of the cases on both coasts is the Justice Department’s urging of the All Writs Act on the courts as a capacious source of power to coerce assistance from third parties. Interestingly, while Apple has vigorously contested the AWA order in California, the tech giant itself suggested that the Justice Department seek one in Brooklyn. Apple was willing to help in the Brooklyn case (as it has done in approximately 70 other cases), but only if there was an order, which the company even helped the Justice Department draft. It was Magistrate Judge Orenstein who was troubled about whether he had the authority to issue the order. Only when the court hesitated and asked for more briefing on the AWA did Apple do an about-face and oppose the issuance.

The AWA, which is now codified at section 1651 of Title 28, U.S. Code, was originally enacted by the first Congress in 1789 — a time when federal courts played a much more modest role in American life. The idea was that, in the few areas where the courts were empowered to act by the Constitution or a statute, they had some residual authority to issue orders necessary to exercise these grants of jurisdiction. It was never the purpose of the AWA to grant courts a limitless reservoir of power to, in effect, legislate in areas where Congress had not enacted controlling law — or, worse, to assume powers Congress had considered giving to judges but decided not to.

As Lady Gaga’s voice soared with emotion while performing “Til It Happens to You,” her song from “The Hunting Ground” (co-written with Diane Warren), masses of young women along with some men strode out on-stage with their forearms extended to reveal words of victimhood imprinted on them. Most disturbing was the word “survivor” recalling the term commonly associated with victims of the holocaust. Possibly lost on under-educated people below the age of 60 was the symbolism of that forearm, the site of numbered tattoos forcefully stamped on prisoners of Auschwitz and other concentration camps by Nazi exterminators. Tears could be seen in the eyes of the sensitive audience and defiance in Gaga and her gang as they represented the latest p.c. special interest group – Victims of Campus Rape. But there is zero similarity between that experience and the horrific plight of holocaust survivors subjected to starvation, torture, sadistic experiments and the most brutal modes of murder.

Current estimates are that one in five college students will experience campus rape. If you’re thinking of an assault in a dark alley by an unknown male brandishing a weapon or threatening violence, think again. According to statistics compiled by Campus Safety Magazine, 43% of victims have consumed excessive alcohol while a scorching 90% of “acquaintance rape” involves that substance. 84 % of women victims are freshmen or sophomores – under age for any alcohol consumption, much less binge drinking. And 38% of college victims are women who claim to have been victimized before, making this the best predictor for any campus rape. Male aggressors who have consumed alcohol are held legally responsible for their actions; females who report that they were too drunk to give consent are foolishly exempt from responsibility for that condition. While no one disputes that in the trendy, free-wheeling lifestyle of many campuses some violent rapes occur, a more common scenario is a young girl who knows and may like her partner but has drunk too much to be in control of herself and later regrets being taken advantage of.

On a hot day in June, the grandson of a bank president took to the floor of the Senate to denounce the daughter of sharecroppers. “I feel compelled to rise on this issue to express, in the strongest terms, my opposition to the nomination of Janice Rogers Brown to the DC Circuit,” Senator Obama said.

Born in segregated Alabama, Janice Rogers Brown had been a leftist like Obama before becoming conservative. When Obama rose to denounce the respected African-American jurist for her political views it had been almost a full two years since President Bush had nominated her in the summer of ’03.

Obama had arrived a few months earlier on his way to the White House and was eager to impress his left-wing backers with his political radicalism. He held forth complaining that Judge Janice Rogers Brown, who had gone to segregated schools and become the first African-American woman on the California Supreme Court, was guilty of “an unyielding belief in an unfettered free market.”

And he filibustered Judge Brown, along with other nominee, trying to deny them a vote.

“She has equated altruism with communism. She equates even the most modest efforts to level life’s playing field with somehow inhibiting our liberty,” he fumed.

Brown, who due to her family background knew far more of slavery than Obama, had indeed warned about the dangers of a powerful government. “In the heyday of liberal democracy, all roads lead to slavery. And we no longer find slavery abhorrent. We embrace it. We demand more. Big government is not just the opiate of the masses. It is the opiate — the drug of choice — for multinational corporations and single moms, for regulated industries and rugged Midwestern farmers and militant senior citizens.”

February is always short in days, but this month was long in news – more than I could cover.

Antonin Scalia’s death, which came as a surprise and disappointment, showed the partisan divide in Washington. As well, it highlighted the functions and responsibilities of our three branches of government. The President has the right, and indeed the obligation, to nominate Justice Scalia’s replacement. The Senate has the right, and indeed the obligation, to advise the President and to consent to the nomination, table it or deny it. Our system was not designed to be efficient – to “get stuff done” – but to be true to the principles of representative government. Justice Scalia felt personal preferences should play no role in a justice’s interpretation of the Constitution. His greatest contribution was his sense that contentious social issues, like abortion and gay marriage, are better resolved at the ballot box than determined by nine unelected individuals who are in no way representative of the people. As Justice Scalia often reminded us, four of the justices grew up in New York City and all nine received their law degrees from either Harvard or Yale.

Justice Scalia’s death was not the only one in February. The reclusive Harper Lee, author of To Kill a Mockingbird died at age 89, less than a year after her second novel Go Set a Watchman was published, a book unlikely to enhance her reputation. Umberto Eco, author, philosopher, essayist and semiotician – best known for his mystery The Name of the Rose – died at age eighty-four. The world lost two wonderful women, both friends: Betsy LeGard, who with her husband Ed have been friends for forty-five years, and Barbara Perkins, who with her husband Ned have been friends in Old Lyme for the past twenty years. Jerry Gold, a friend for over forty years and the OM (oldest member) of the Drones of New York – a swarm of P.G. Wodehouse fans – died last week. Thank God for memories.

As it has been for most of the past eight months (and will for the next eight!), the endless election process dominated domestic news. On the Democrat side, while the popular vote has been fairly close between Clinton and Sanders, the delegate count (502-70) has not, because of the undemocratic way Democrats assign Super Delegates. On the Republican side, Trump (who at the end of the month gained the endorsement of Chris Christie) has taken about a third of the popular vote and about two thirds of delegates. In terms of delegates, Republicans are more democratic than Democrats. The outlook may change with today’s “super Tuesday” primaries, but at this point the leading candidates are a demagogic man who has nothing nice to say about anyone (apart from himself and his family) and who has, unsurprisingly, the most negative poll numbers of any candidate, and an ethically-challenged, demagogic woman who was Secretary of State when $6 billion went missing and who lied about Benghazi. As former Defense Secretary Donald Rumsfeld would put it, in the first instance we have a known unknown and in the second, a known known. Neither’s appealing.