Feds Back Off in War With Apple

Feds Back Off in War With AppleEXPAND
File photo from Apple

UPDATE at 3:35 p.m., Monday, March 28, 2016: The government, saying a third party has successfully helped investigators crack the iPhone in question, has completely backed off. See details at the bottom. First posted at 4:50 p.m., Monday, March 21, 2016. 

It was an epic standoff: The government of the most powerful nation on Earth against the world's largest publicly traded corporation, Apple.

The U.S. Department of Justice filed multiple requests in federal court to force Apple to create a "backdoor" to the locked iPhone of San Bernardino terrorist Syed Farook.

Investigators want to dig into his data and his last known communications. While Farook and fellow San Bernardino shooter Tashfeen Malik, his wife, are believed to have supported the Islamic State terror group, it's not clear if they received outside support or directives.

Apple, with newer, 256-bit advanced encryption, has said no backdoors. One backdoor would allow the government to peek into all our iPhones, even if feds say they only want to focus on the 5c phone of Farook, Apple argued.

Well, today, it would appear, the feds backed off — big-time.

Eileen M. Decker, the U.S. Attorney in Los Angeles, filed a motion to vacate tomorrow's hearing on the matter. The hearing has indeed been delayed by a judge, a spokesman for the DOJ told us.

Why the change of heart? Here's what today's filing says:

As the FBI continued to conduct its own research, and as a result of the worldwide publicity and attention on this case, others outside the U.S. government have continued to contact the U.S. government offering avenues of possible research.

On Sunday, March 20, 2016, an outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone. 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.

War averted?

The filing says prosecutors want until April 5 to provide a "status report" on the attempt to crack the phone. So it's not over yet.

It's an interesting development, though, given that many saw this as a test case for a federal government unhappy with smartphones that are encrypted so well investigators can no longer get into them for information in high-crime cases — even when they have warrants in hand.

But the feds say this wasn't about creating a precedent for access to the iPhone.

"Our top priority has always been gaining access into the phone used by the terrorist in San Bernardino," said Melanie Newman, DOJ spokeswoman. "With this goal in mind, the FBI has continued in its efforts to gain access to the phone without Apple’s assistance, even during a monthlong period of litigation with the company. As a result of these efforts, an outside party demonstrated to the FBI this past weekend a possible method for unlocking the phone. 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. If this solution works, it will allow us to search the phone and continue our investigation into the terrorist attack that killed 14 people and wounded 22 people."

The Electronic Frontier Foundation planned to demonstrate outside tomorrow's hearing in Riverside.

"The FBI wants to force Apple to weaken the security measures that keep all of us safe," he said. "This is misguided, and dangerous. On March 22, when Apple goes to court, we’ll display thousands of statements from Internet users outside the courthouse."

UPDATE at 5:40 p.m., Monday, March 21, 2016: The judge in the case also "stayed" or put off the court's order that Apple comply and help feds crack Farook's phone. Here's what today's ruling from U.S. Magistrate Sheri Pym says:

As there is presently uncertainty surrounding the government’s need for Apple’s assistance, the court’s February 16, 2016, Order Compelling Apple Inc. to Assist Agents in Search, in case number ED 15-451-M, is hereby stayed, pending further submissions in this case ... 

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Federal prosecutors were ordered to file that status report April 5.

UPDATE at 6:20 p.m., Monday, March 21, 2016: In a phone call with reporters tonight, Apple attorneys characterized Pym's ruling as an indefinite delay of the previous order to help federal investigators get inside Farook's phone.

Apple's lawyers said the company, as things stand today, doesn't have to comply with anything.

The company said its position on the matter — that this is an issue of protecting the privacy of its customers — hasn't changed and it will continue to fight the government if it is re-ordered to assist in cracking the iPhone's encryption.

The attorneys said it's premature to call this a legal victory: April 5, when the government is supposed to reveal its progress in cracking the phone, will be the day, it appears, that we'll find out if this battle will continue.

It's not clear what possible vulnerability the feds might have found, the lawyers said. Apple's efforts to keep customers' data security is ongoing and ever-evolving, they said.

They hope, in any case, the government will share what they found with Apple. Irony?

UPDATE at 6:26 p.m., Monday, March 21, 2016: The Electronic Frontier Foundation, which has supported Apple's fight, argued that this was always about more than just one particular iPhone.

"The FBI explained that an outside party had demonstrated a way that might get into the locked phone, which would mean that the FBI would have to drop its request for Apple to create the backdoor," said EFF general counsel Kurt Opsahl. "This is good news, because a legal precedent requiring companies to write backdoors is incredibly dangerous to the security of millions of iPhone users.

"This case was always about more than access to a single phone," he said. "It was an attempt to set a legal precedent that requires any company to undermine their users’ security at the FBI’s request. Security is vital to protect the information on your phone, and the FBI should work to enhance user security, not against it."

UPDATE at 3:35 p.m., Monday, March 28, 2016: The U.S. Attorney's Office in Los Angeles today said it was asking a U.S. Magistrate in Riverside to vacate the court's order seeking to force Apple to help federal authorities crack Farook's iPhone. 

"Our decision to conclude the litigation was based solely on the fact that, with the recent assistance of a third party, we are now able to unlock that iPhone without compromising any information on the phone," the U.S. Attorney in L.A., Eileen M. Decker, said in a statement this afternoon.

"We sought an order compelling Apple to help unlock the phone to fulfill a solemn commitment to the victims of the San Bernardino shooting — that we will not rest until we have fully pursued every investigative lead related to the vicious attack," she said. "Although this step in the investigation is now complete, we will continue to explore every lead, and seek any appropriate legal process, to ensure our investigation collects all of the evidence related to this terrorist attack. The San Bernardino victims deserve nothing less."

The battle is over, but it's not clear if the war will rage on. Will the government look for another test case that would allow it to create a backdoor to the iPhone encryption it so despises? Stay tuned.


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