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In the weeks leading up to a courtroom skirmish between Apple and the U.S. Department of Justice, the FBI and government lawyers hammered out a consistent message: Apple alone holds the power to unlock the iPhone used by Syed Rizwan Farook, one of the terrorists responsible for the shooting rampage in San Bernardino last year that left 14 people dead.
Having exhausted its technical capability to access the locked device on its own, the nation’s most powerful law enforcement agency turned to the courts, asking Federal Magistrate Judge Sheri Pym to force Apple to help penetrate the iPhone. Apple challenged Judge Pym’s order and was prepared to defend its position in court.
But in a surprise twist, less than 24 hours before Apple and the Justice Department would appear in front of Pym to settle the dispute, the hearing was canceled — at the government’s request.
On Sunday, an outside party demonstrated to the FBI a possible method to access the iPhone; if proven successful, it would dissolve the government’s case against Apple. But the third party, whom the Justice Department refused to identify, is suspected by experts to be a mobile forensics firm that has contracted with the U.S government for several years, casting doubt on the Justice Department's timeline — that it became aware of a way to get into the phone only at the last minute.
“This suggests that the FBI either doesn't understand the technology well enough or wasn't telling us the full truth earlier when it said that only Apple could break into the phone,” Alex Abdo, an attorney for the ACLU, told BuzzFeed News. “Either possibility is disconcerting.”
Contrary to the Justice Department’s stated position, lawmakers and privacy advocates have long argued that the San Bernardino case is not merely about gaining access to one device, but setting a legal precedent, redefining the limits of law enforcement and broadening the demands placed on Silicon Valley to assist with government surveillance.
In an editorial Wednesday, the Wall Street Journal described the government’s clash with Apple as “reckless,” as the Justice Department “rushed to legal war with dubious theories,” and “fibbed” by stating that the San Bernardino case is all about one phone, even as law enforcement officials clamor for special access to encrypted devices in numerous cases across the country.
In a letter to the Journal, FBI Director James Comey said, “You are simply wrong to assert that the FBI and the Justice Department lied about our ability to access the San Bernardino killer’s phone.” Comey’s remarks echo those of DOJ officials from earlier this week, who stated that the worldwide publicity of the San Bernardino case prompted interested parties to contact the FBI and share methods to gain access to the iPhone. But all previous attempts have fallen short, until now. “Lots of folks came to us with ideas,” Comey said.
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“It looks like one of those ideas may work and that is a very good thing, because the San Bernardino case was not about trying to send a message or set a precedent; it was and is about fully investigating a terrorist attack.”
Proponents of strong consumer encryption, however, remain skeptical of the Justice Department’s decision to postpone the hearing.
“If the FBI thought they had a strong case they would not have asked for a delay in the hearing," Rep. Ted Lieu told BuzzFeed News.
Lieu pointed to articles that were publicized for weeks, suggesting alternative methods to gain access to the San Bernardino iPhone. Lieu believes the Justice Department backed down, facing public backlash and concerted opposition from the tech industry. “I think the FBI and DOJ saw the writing on the wall,” he said. For him, the apparent disintegration of the Apple battle “undermines the credibility of the FBI and DOJ on technological cases involving encryption.”
“The FBI’s move raises more questions than it provides answers,” Rep. Darrell Issa told BuzzFeed News. “Trying other techniques to get into the phone that don’t require tech companies to introduce vulnerabilities to their own software is exactly the type of due diligence I asked the FBI to take,” he said.
During a congressional hearing earlier this month, Issa needled Comey with technical questions about the steps the FBI had taken to gain access to the iPhone. Comey insisted that “all parts of the U.S. government” had been engaged to help unlock the device, but said he remained open to suggestions. “Lots of people have emailed ideas,” Comey said at the time.
While the Justice Department is required to report back to Pym by April 5 on the status of their iPhone exploit, its unclear if the government will share the identity of the outside party or details of the iPhone vulnerability. Apple attorneys said they know nothing about the method but hope the Justice Department will share information about the exploit whether or not the San Bernardino case proceeds.
A Justice Department spokesperson declined to comment on the identity of the outside party or the particulars of the method with which it hopes to hack the San Bernardino iPhone. The spokesperson also declined to answer questions about the April 5 status update and whether or not the agency will share with the public the success or failure of the outside party's hacking method, and any evidence it might have recovered.
“It’s encouraging the FBI has decided to pursue ways to crack this phone that don’t require weakening security for millions of other devices,” Sen. Ron Wyden told BuzzFeed News. "However, it’s clear the fight over strong encryption is far from over.”
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