With less than 24 hours to go until the landmark court hearing in Apple’s case against the FBI, the Department of Justice requested that the hearing be cancelled while the agency explores a “new unlocking method” that may mean they no longer need Apple’s assistance.
In a court filing Monday, the DoJ claimed that an “outside party” had demonstrated a “new unlocking method” over the weekend, and requested that the court case be postponed while the FBI tested this method to try and get access to San Bernardino attacker Syed Farook’s iPhone without Apple’s help. Later in the day, the court agreed, requesting that the FBI update the court by April 5.
This surprise development represents an immediate, if perhaps temporary, victory for Apple, but raises more questions about the FBI’s decryption ability and technical reach. Speculation about the “new unlocking method” is rife already, with some linking the development to a new iMessage vulnerability uncovered by researchers at Johns Hopkins, and others suggesting that a foreign data forensics lab may have proposed an approach to mirroring the iPhone, allowing for multiple attempts without loading a new operating system.
Whatever is going on behind the scenes, there is widespread agreement that the FBI realized they had miscalculated, and that their lawsuit with Apple was set up to fail. The extent of this miscalculation was already apparent earlier this month, when FBI Director James Comey was forced to respond to an unusually hostile House Judiciary Committee, with pointed questions about the FBI’s disingenuous approach coming from Committee Members from both parties. This aggressive response from lawmakers was due to pressure from the public, civil society groups, and the tech industry, who united to demonstrate how the FBI had carefully selected a terrorism-related case that they believed they could use to set a legal precedent to weaken encryption through court order instead of legislative process.
In a statement yesterday, the DoJ tried to repeat their tired and thoroughly discredited argument that the case against Apple was just about accessing one phone:
Our top priority has always been gaining access into the phone used by the terrorist in San Bernardino. 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 month-long 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. (Source)
The tech community and activists responded by highlighting how the FBI themselves have already acknowledged how this case would set a valuable precedent, with Techdirt describing the argument as “more misleading bullshit from the DOJ.” Fight for the Future Campaign Director Evan Greer writes:
This case was never about a phone. It was a grab for power. The FBI already had the capability to hack this phone using forensic tools, but they thought this case would be a slam dunk––a way for them to set a dangerous precedent that they’ve wanted for years. Instead, it appears they’re running away with their tail between their legs, trying to save face while they go. They knew they were going to lose, both in the court of law and the court of public opinion.
While this is an important victory, the fight is far from over. We know from experience that the FBI wants to be free to conduct surveillance with as little oversight as possible, and will seize on any opportunity to create new legal precedent or shape public opinion to help meet these goals.
We need to maintain pressure on members of congress to pass cybersecurity and privacy protections that will actually keep us safe, and take action to curb FBI overreach and surveillance of first amendment protected activity. If you haven’t done so already, read about our campaign for real congressional oversight of the FBI and DHS, and add your voice by signing the petition today.
We’ll close with our favorite tweet as yesterday’s news broke:
FBI: Hey Apple, wanna fight?
Apple: Yeah okay, let’s fight
FBI: Ok, gonna fight you now
Apple: K let’s fight.
FBI: Uh something just came up
— Evan Greer (@evan_greer) March 22, 2016