The night before Apple Inc. and the Federal Bureau of Investigation were set to face off in court over whether Apple should be forced to create software to override the iPhone’s encryption, the FBI requested the hearing be cancelled.
The court hearing set for Tuesday was over the case of the iPhone used by Syed Farook, a suspect in the San Bernardino shooting in December. After claiming that the only way to access the data on Farook’s iPhone was for Apple to create software to break the phone’s encryption, the FBI said Monday night that they may have found another way to hack the phone.
In a court filing, the FBI asked U.S. Magistrate Judge Sheri Pym to vacate the hearing, claiming that on Sunday, “an outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone.”
“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. set forth in the All Writs Act Order in this case.”
The filing did not name the “outside party,” but proposed that to make time for testing to determine “whether it is a viable method,” the government should have until April 5 to submit a status report.
Judge Pym granted the FBI’s request around 9:30 p.m. EST Monday. She sided with the agency in February, ruling that the All Writs Act of 1789 justified the government forcing Apple to create the software to decrypt the iPhone, in order to access information on the phone used by Farook.
In contrast, Brooklyn Magistrate Judge James Orenstein ruled on March 1 that the government cannot use the All Writs Act to force Apple to provide data from a locked iPhone, in the case of a suspect facing criminal drug charges in New York.
Orenstein wrote, “The implications of the government’s position are so far-reaching — both in terms of what it would allow today and what it implies about congressional intent in 1789 — as to produce impermissibly absurd results.”
Including the cases of the San Bernardino shooting suspect in California and the criminal drug suspect in New York, Apple is facing a total of 12 cases in which the FBI is pushing for its help to gain access to encrypted data.
Fred Cate, a law professor at Indiana University, told Ars Technica that while the FBI’s request to vacate the hearing could be “good news” for Apple, it is not the end of an escalating security struggle.
“As a practical matter, if the FBI’s new technique works, it likely means that Apple will add more protection to its devices, which is a good thing for consumers, and the FBI will be back in court in the future asking a judge to compel Apple to help the government defeat Apple’s improved security,” Cate said. “So the issue probably has been deferred, not resolved.”