DOJ Postpones iPhone Court Rearing - May not need Apple's help any longer

Feds gain postponement of iPhone hearing
The Justice Department may not need Apple's help any longer.

By TONY ROMM and JOSH GERSTEIN 03/21/16 06:34 PM EDT Updated 03/21/16 09:54 PM EDT

RIVERSIDE, Calif. — Citing a new possible way to access a locked iPhone used by a shooter in the San Bernardino terrorist attack, the Justice Department on Monday convinced a federal court to cancel a Tuesday hearing on whether Apple should be forced to help the FBI break into the device.

Government lawyers had insisted for months they needed Apple to write special software so the FBI could bypass security features on the iPhone being used by the San Bernardino shooter, Syed Farook, and obtain what could be critical information for their ongoing terrorism investigation.

But the Justice Department unexpectedly told the court just hours before a scheduled hearing that it may not need Apple’s assistance after all.

"On Sunday, March 20, 2016, an outside party demonstrated to the FBI a possible method for unlocking Farook's iPhone," federal prosecutors said in a filing Monday afternoon. "Testing is required to determine whether it is a viable method that will not compromise data on Farook's iPhone. If the method is viable, it should eliminate the need for the assistance from Apple Inc. ('Apple') set forth in the All Writs Act Order in this case."

For the moment, the DOJ’s move hits the pause button on a case that has pitted Washington against Silicon Valley in a fierce debate over the role tech companies should play in terrorism investigations. The Justice Department now has until April 5 to test its prospective technical fix, which law enforcement sources, speaking with reporters on Monday, repeatedly declined to detail.

Apple said late Monday it learned about the DOJ’s change of plans only hours before the government filed its motion. The company’s lawyers, who spoke to reporters on background, said they were unaware of who the Justice Department contacted or how it planned to gain access to the device.

Earlier Monday, however, Apple CEO Tim Cook affirmed his company’s intent to fight this and other cases where the government seeks greater access to digital data. As he unveiled his company’s latest iPhone, Cook pledged on stage in San Francisco that Apple would not “shirk from [its] responsibility” to protect its users.

In the San Bernardino case, the Justice Department had asked a federal magistrate in February to require Apple to write software to help unlock Farook’s password-protected iPhone. Apple doesn’t retain a copy of device passwords, and the iPhone is programmed to erase itself after too many failed attempts to unlock it. The DOJ wanted the company craft special software to remove the restriction.

Federal Magistrate Sheri Pym initially sided with the DOJ in February, drawing a sharp rebuke from Apple, which lambasted the government’s request as a digital “backdoor.” In the eyes of the tech company, a win for the government would set a dangerous legal precedent, allowing the Justice Department unparalleled access to all digital communications in other major national security investigations. Apple argued Congress never gave law enforcement such power, and doing so now would only encourage foreign governments to seek the same access in the future.

The legal battle — marked by bitter rhetoric from both sides — quickly encompassed much of Silicon Valley. Top firms like Amazon, Facebook, Google and Microsoft filed legal briefs in support of Apple, urging the judge not to embolden the FBI as it seeks greater access to data it can't currently intercept or decipher — a problem its director has called “going dark.” Both Apple and the Justice Department seemed to indicate they would continue fighting the case for as long as necessary, setting up an historic war between Washington and Silicon Valley.

In its filings with the court, the Justice Department initially argued it had no option to obtain the data other than ask for Apple’s help — even as security experts suggested the FBI might have been able to extract the phone's contents by other means. FBI Director James Comey was grilled about a potential technical solution by lawmakers like Rep. Darrell Issa (R-Calif.) on Capitol Hill earlier this month.

The DOJ did not specify in its court filing Monday, however, exactly how it planned to obtain the contents of the San Bernardino device. Nor did law enforcement officials, speaking to reporters on background, explain who their “outside source” was or how the FBI got in contact with them.

"As a result of these efforts, an outside party demonstrated to the FBI this past weekend a possible method for unlocking the phone," a DOJ spokeswoman said in a statement. "We must first test this method to ensure that it doesn’t destroy the data on the phone, but we remain cautiously optimistic. That is why we asked the court to give us some time to explore this option."


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