DOJ seeks to delay Apple encryption hearing, says it may be able to unlock iPhone after all [u]

Posted:
in General Discussion edited March 2016
In a last minute motion filed in the ongoing San Bernardino iPhone encryption case, the DOJ on Monday asked a federal court to vacate a hearing scheduled for Tuesday, saying an outside party has come forward with a potential unlock method that would negate the need for Apple's assistance.




According to a court filing, an unnamed party on Sunday demonstrated a method for unlocking an iPhone tied to San Bernardino terror suspect Syed Rizwan Farook. If the FBI has indeed stumbled onto a working encryption workaround, it would no longer need to compel Apple's assistance or move forward with presenting its arguments in what has become a very high profile case.

"On Sunday, March 20, 2016, an outside party demonstrated to the FBI a possible method for unlocking [terrorist Syed] Farook's iPhone," the Justice Department writes. "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."

Politico reported on the motion earlier today.

Apple in February was ordered by a federal magistrate judge to help FBI efforts in unlocking Farook's iPhone under the understanding that actionable intelligence might still be present on the device. The government is asking Apple to create an intentionally vulnerable iOS variant that would open the door to a brute-force attack.

Apple resisted the order, arguing that the mere existence of a software workaround inherently weakens the security of millions of iOS devices around the world. The public nature of the case sparked debate over the balance of privacy rights and national security, drawing input from tech companies, advocacy groups, law enforcement agencies and other interested parties.

If the government is granted a continuance, it would delay -- potentially indefinitely -- a hearing concerning Apple's challenge to the FBI's AWA assertions. Just last week federal prosecutors pushed for, and received, permission to cross-examine witnesses slated to take the stand.

The stakes are high for both sides. For the FBI, a win would set valuable precedent in asserting AWA as an effective and proper judicial tool for forcing tech company compliance in digital evidence gathering operations. Such precedent would go a long way in shoring up the government's technical shortcomings when it comes to dealing with increasingly sophisticated consumer encryption systems.

If Apple is successful in staving off DOJ pressure, it could cast doubt on AWA's application as it applies to the tech industry.

Taking a step back, the San Bernardino initiative appears to be more of a gamble for the DOJ than Apple. All Writs, as it is intended, is the FBI's last standing option to gain access to evidence, and potential precedent against the measure could be extremely damaging to future investigations (Apple has promised to take the issue to the Supreme Court, if necessary). Apple, on the other hand, has nearly inexhaustible resources and, more importantly, time to strengthen its defenses if forced to break a particular encryption method.

Update: U.S. Magistrate Judge Sheri Pym has agreed to postpone tomorrow's hearing as the FBI determines the viability of the proposed hack. Government prosecutors have until April 5 to file an update to the court. In a follow-up conference call with reporters, Apple said it will request further information regarding the supposed vulnerability.

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Comments

  • Reply 1 of 83
    The DOJ is clueless. 
    The case should go forward if only prevent it from ever occurring again. 

    repressthisnemo227cornchipericthehalfbeetdknoxirelandsockrolidlatifbpgtrfotoformat
  • Reply 2 of 83
    badmonkbadmonk Posts: 736member
    Considering how bizarre the FBI has been, who is this third party?  I feel like the department needs an intervention to keep them from making bad decisions.
    nemo227latifbplostkiwi
  • Reply 3 of 83
    ppietrappietra Posts: 171member
    The FBI already has what it really wanted, enough public support for the Congress to make some changes in the law.
    nemo227
  • Reply 4 of 83
    jungmarkjungmark Posts: 6,568member
    Incompetence. The FBI should be forced to pay Apple's legal bills. 
    latifbpmagman1979propodnolamacguy
  • Reply 5 of 83
    peteopeteo Posts: 332member
    Really? They went through all this crap and now the found another way? FBI is a joke. They probably already had another way to get into the phone and we're just trying to set a precedent with terrorism as a way to get easy access to to everyone's phone. Now that apple didn't roll over and it looks like fbi will loose they drop it. Total asses
    aaronjdigitolpotatoleeksoupcornchipbrakkentdknoxirelandsockrolidlolliverjfc1138
  • Reply 6 of 83
    quinneyquinney Posts: 2,520member
    When they thought things were going their way, the FBI wanted to set a precedent to use the All Writs Act.  Now they look like they are afraid that the precedent to be
    set would be that they cannot use the AWA to increase their snooping powers.  I wonder if the outside party is the NSA.  Richard Clarke had been saying that the NSA
    had the capability, but the FBI did not request them to do so, since the FBI wanted a legal precedent to expand the use of the AWA.
    digitolnemo227potatoleeksouptdknoxsockrolidlolliverlatifbpicoco3jfc1138xamax
  • Reply 7 of 83
    cintoscintos Posts: 103member
    My take is that the FBI finally realized they had a poor hand going into tomorrow's court appearance, and they would rather have no decision than have a loss. The court should have none of this ossification. Last week the moved the format to a full evidentiary hearing, now this. Apple should demand the order be vacated tomorrow.
    digitolnemo227potatoleeksoupradarthekatbobschlobclemynxirelandlolliverlatifbpicoco3
  • Reply 8 of 83
    lkrupplkrupp Posts: 6,520member
    They found another way, huh? Right, John McAfee has been smoking too much weed. And poof, it all goes away the day before the showdown. FBI to Apple, “Never mind.”
    edited March 2016 nemo227cornchiplolliverlatifbpzroger73lostkiwi
  • Reply 9 of 83
    it's play they're doing. they will claim later on that they've exhausted all means. apple should see through this and be prepared.
    digitolration allostkiwi
  • Reply 10 of 83
    designrdesignr Posts: 368member
    I have no idea why we should believe that this is anything more than a face-saving move on their part. Why should we believe they have found "another way"? If they come back and say they did, how will we ever know?

    I think they know they're likely to lose and they don't want that precedent set.

    edited March 2016 aaronjdigitolnemo227cornchipradarthekatclemynxirelandlolliverjfc1138Rayz2016
  • Reply 11 of 83
    quinneyquinney Posts: 2,520member
    cintos said:
    My take is that the FBI finally realized they had a poor hand going into tomorrow's court appearance, and they would rather have no decision than have a loss. The court should have none of this ossification. Last week the moved the format to a full evidentiary hearing, now this. Apple should demand the order be vacated tomorrow.
    I agree.  The court should not allow the FBI to just postpone this hearing until they think the wind is just right.
    latifbpgtrmacky the macky
  • Reply 12 of 83
    badmonk said:
    Considering how bizarre the FBI has been, who is this third party?  I feel like the department needs an intervention to keep them from making bad decisions.
    Given the bad advice they have already followed, I wouldn't be surprised if someone told them to put it in the microwave for 5 minutes to "soften the security." 
    nemo227lolliverlatifbpmacky the mackyjahbladelostkiwi
  • Reply 13 of 83
    jfc1138jfc1138 Posts: 3,090member
    The DOJ is clueless. 
    The case should go forward if only prevent it from ever occurring again. 

    Why do you think they're halting it? They have a very good idea which way it was heading and they want to stop it before they get a loss on the record. 
    edited March 2016 latifbplostkiwi
  • Reply 14 of 83
    Would the said unnamed party be the NSA?
    latifbp
  • Reply 15 of 83
    fallenjtfallenjt Posts: 3,930member
    don't see it? They found "other ways" and later come back saying that "other ways" give them value information about future attack plans contained in San Bernardino shooter's work phone, so they can attack Apple for not complying. 
  • Reply 16 of 83

    quinney said:
    cintos said:
    My take is that the FBI finally realized they had a poor hand going into tomorrow's court appearance, and they would rather have no decision than have a loss. The court should have none of this ossification. Last week the moved the format to a full evidentiary hearing, now this. Apple should demand the order be vacated tomorrow.
    I agree.  The court should not allow the FBI to just postpone this hearing until they think the wind is just right.
    My guess is they drop it all together in the courts and try to get congress to pass a legislative solution. All the rhetoric and heart string tugging in the media is more geared towards that than getting the court to rule on the legality of the warrant. 
  • Reply 17 of 83
    rwesrwes Posts: 155member
    Would the said unnamed party be the NSA?
    quinney said:
    When they thought things were going their way, the FBI wanted to set a precedent to use the All Writs Act.  Now they look like they are afraid that the precedent to be
    set would be that they cannot use the AWA to increase their snooping powers.  I wonder if the outside party is the NSA.  Richard Clarke had been saying that the NSA
    had the capability, but the FBI did not request them to do so, since the FBI wanted a legal precedent to expand the use of the AWA.
    I'm thinking NSA as well - we'll (probably) never know...
  • Reply 18 of 83
    designrdesignr Posts: 368member
    rwes said:
    Would the said unnamed party be the NSA?
    I'm thinking NSA as well - we'll (probably) never know...
    we'll (probably) never know...

    Fixed that.

    clemynxjfc1138
  • Reply 19 of 83
    Back tracking for fear of losing?
    potatoleeksoupbrakkensockrolidjfc1138
  • Reply 20 of 83
    tundraboytundraboy Posts: 1,593member
    ppietra said:
    The FBI already has what it really wanted, enough public support for the Congress to make some changes in the law.
    I don't think they have enough public support to get the legislation they want.  In fact as people got more educated about the whole issue of breaking phone encryption, the more they sided with Apple.  Looks more like a face-saving, shall I say it?, backdoor out of the corner that they stupidly painted themselves in.
    potatoleeksoupcornchipradarthekatclemynxsockroliddigitollostkiwi
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