- Tuesday's California court face-off with tech giant called off
- Government says it might have new method for unlocking phone
In a standoff with Apple Inc. over access to a terrorist’s smartphone, the federal government is favoring a technological workaround over a court clash it risked losing.
The U.S. Justice Department, which had sued to force Apple to help it gain access to data locked in the iPhone used by an attacker who killed 14 people last year in San Bernardino, California, abruptly switched tack late Monday. It asked a magistrate judge to cancel a court hearing in the case scheduled for Tuesday, instead saying it would test another way of accessing the information.
“An outside party demonstrated to the FBI this past weekend a possible method for unlocking the phone,” Melanie Newman, a Justice Department spokeswoman, said Monday in an e-mailed statement. “We must first test this method to ensure that it doesn’t destroy the data on the phone, but we remain cautiously optimistic.”
The cancellation avoids a courtroom face-off -- at least for now -- in a case that may redraw the boundary between personal privacy and national security in the mobile Internet age. Apple has vigorously opposed the government’s effort to force it to create software to undercut iPhone security features, saying doing so would threaten the privacy and data security of millions of iPhone users. The decision also lets the government avoid what was sure to be a lengthy legal process that could reach the Supreme Court, with no guarantee of victory.
The decision to potentially abandon the case may be a smart legal strategy, as the Department of Justice faced an uphill battle fighting Apple on this issue through the courts, said Mark Skilton, a professor and cybersecurity expert at the Warwick Business School in the U.K.
"The weight of precedent is against the government in that the cyber risk impacting many people is far greater than the convenience of a back-door hack,” Skilton said in an interview. “It will just open up a huge Pandora’s box of more cyber risks. Apple has a strong case in 2016 but it’s a bigger industry issue of public safety going forward that needs legislation, not quick fixes."
The Justice Department didn’t identify who stepped forward with a new technique for unlocking the phone.
The government was ordered by Magistrate Judge Sheri Pym in Riverside, California, to file a report on the status of its efforts by April 5. Pym also put on hold her order for Apple to cooperate in the San Bernardino investigation.
Apple attorneys told reporters on a conference call that they have no information about the Federal Bureau of Investigation’s new claim that it may be able to access the iPhone without the company’s help. They only found about it Monday, they said.
The lawyers added that they would want the government to share the nature of the security vulnerability with the company if the case proceeds.
“There’s a lot of people right now who are curious who this third party is,” said David O’Brien, a senior researcher with the Berkman Center for Internet and Society at Harvard University. “It appears the FBI turned away from the opportunity to test its case in court and get a ruling that could have set a precedent.”
The Justice Department won’t need Apple’s help in running tests and should know by April 5 whether the new method works, said a law enforcement official who asked not to be identified.
The entity that approached the Justice Department on Sunday isn’t part of the U.S. government, said the official, who declined to provide any other details about it.
If the method works, it will eliminate the need to continue the case against Apple, but it’s too early to say if the technique could also be applied to other cases, the official said.
Security experts have said there are many ways the FBI could hack into the iPhone 5c used by Syed Rizwan Farook, who with his wife carried out the December attack in San Bernardino. Both were killed hours later in a police shoot-out.
Jonathan Zdziarski, a cybersecurity researcher who consults with law enforcement, says the FBI might be able to copy the contents of the phone onto a chip and swap it out. Other potential solutions include finding and exploiting cracks in the software. All systems contain flaws and they continue to be found every month in Apple’s software, according to Jason Syversen, a former manager at the Defense Advanced Research Projects Agency (Darpa) and now chief executive officer of cybersecurity firm Siege Technologies.
Some experts have argued that the FBI should ask the National Security Agency for help. They note that the NSA is the best-funded spy agency on Earth, employs legions of hackers and almost certainly can break into secure computer systems. But in testimony before Congress this month, Worcester Polytechnic Institute cybersecurity professor Susan Landau said the NSA may be reluctant to help the FBI, since the secretive agency’s hacking abilities could become public should it be hauled into court.
Apple Chief Executive Officer Tim Cook, opened a product launch Monday by wading into the political debate over privacy and encryption, saying “We believe strongly we have a responsibility to help you protect your data and your privacy.”
Apple’s event, in which it released a new, smaller iPhone, closed with rocker Tom Petty’s “I Won’t Back Down” blaring over over the sound system.
The case is In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, 16-00010, U.S. District Court, Central District of California (Riverside).