The legal battle pitting Apple against the U.S. government over whether the tech giant should be required to help the FBI unlock the iPhone owned by one of the terrorists involved in the San Bernardino massacre was defused today when the government was granted a postponement in proceedings.
The U.S. Attorney’s Office sent a request to U.S. Magistrate Sheri Pym, asking that she vacate a hearing scheduled Tuesday while the FBI explores a potential avenue for decrypting Syed Rizwan Farook’s phone. Pym granted the request.
“On Sunday, an outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone,” according to the court filing. “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 of Apple Inc.”
Prosecutors will submit a status report to the court by April 5.
“We must first test this method to ensure that it doesn’t destroy the data on the phone, but we remain cautiously optimistic,” said Department of Justice spokeswoman Melanie Newman. “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.”
The “method” for circumventing the iPhone’s security wall was not disclosed. However, reports have circulated that several overseas firms, including Israel’s Cellebrite, have touted possession of forensic hacking technologies that could siphon data from the mobile device without damaging it.
Apple Inc. CEO Tim Cook today addressed the issue at the outset of the company’s product launch event in Cupertino, saying Apple was taking a stand to spotlight “how much power the government has over our data.”
“We did not expect to be in this position, but we find ourselves at odds with our own government,” Cook said. “But we believe we have a strong responsibility to protect the data of our customers. We will not shrink from our responsibility.”
Federal prosecutors had asked Pym to enforce her All Writs Act directive of Feb. 16, instructing Apple to take the necessary steps to assist FBI technicians in boring through the firewall protecting Farook’s phone.
Apple challenged the warrant on the grounds that it would compel the company to create a “backdoor” technology that could be applied ad infinitum to gain access to Apple products throughout the world, by government or other sources, to the detriment of users.
The FBI has tried unsuccessfully to decrypt the phone. The concern is that repeated attempts to penetrate the data bank could trigger the device’s auto-wipe mechanism, obliterating its contents.
According to an affidavit filed by Apple attorney Lisa Olle, the software firm made a senior engineer and other personnel available immediately after the iPhone was seized from Farook’s black Lexus IS300. Olle said Apple reps provided assistance via telephone to help “the government obtain data from the subject device” — but the effort was for naught.
Compelling the company to put members of its design and programming team at the FBI’s behest would “inflict significant harm to civil liberties, society and national security,” according to Apple’s Feb. 25 motion asking Pym to nullify her All Writs Act order.
If it stands, “it will only be a matter of days before some other prosecutor, in some other important case, before some other judge, seeks a similar order using this case as precedent,” the brief states.
“Once the floodgates open, they cannot be closed, and the device security that Apple has worked so tirelessly to achieve will be unwound without so much as a congressional vote,” according to the company’s attorneys.
The All Writs Act, implemented in 1789, is a broad directive that the courts employ to gain compliance from entities implicated in a criminal investigation.
The U.S. Attorney’s Office stressed in a March 10 brief that there are “compelling facts (that) justify ordering Apple to remove the barriers to executing a warrant for an iPhone used by a terrorist who carried out mass murder.”
Prosecutors called the court’s order “modest” and a simple step toward producing “a narrow, targeted piece of software capable of running on just one iPhone” — the passcode to which Farook took to his grave.
The 28-year-old San Bernardino County Department of Environmental Health employee and his wife, 27-year-old Tashfeen Malik, gunned down 14 people and wounded 22 others at the Inland Regional Center on Dec. 2 in what federal agents said was an Islamist-motivated terrorist attack. The pair were killed a few hours later during a shootout with police.
The U.S. Attorney’s Office noted that the All Writs Act had been applied multiple times, including to decipher encrypted data belonging to New York Telephone Co. in the late 1970s.
“Like Apple, the telephone company argued that … relying on the AWA was a dangerous step down a slippery slope ending in arbitrary police powers,” according to court papers. “The Supreme Court dismissed this argument. In the 40 years since that decision, it has become clear that the court was correct, because those fears have proved unfounded.”
Prosecutors wrote that “the government and the community need to know what is on the terrorist’s phone, and the government needs Apple’s assistance to find out.”
A constellation of tech firms, privacy protection and civil rights organizations have rallied to Apple’s cause, filing amicus briefs and identifying themselves as interested parties.
Amazon, Cisco Systems, eBay, Facebook, Google, Linkedin Corp, Mozilla, Yahoo, Twitter Inc. — to name only a few — have entered the fray, allied with the ACLU of Southern California, the Consumer Technology Association and the Electronic Frontier Foundation.
Supporting the government’s position are the California Peace Officers’ Association, the Federal Law Enforcement Officers’ Association, the California State Sheriffs’ Association and the California Police Chiefs’ Association.