A much-anticipated court hearing on the federal government’s effort to force Apple Inc. to unlock the iPhone used by one of the shooters in the San Bernardino terror attack was abruptly vacated Monday after the FBI revealed it may have a way to access data without the company’s help.
Federal prosecutors made the surprising announcement on the eve of Tuesday’s hearing in U.S. District Court in Riverside, California. In court papers they said the FBI has been researching methods to access the data on Syed Rizwan Farook’s encrypted phone since obtaining it on Dec. 3, the day after the attack.
“An outside party” came forward over the weekend and showed the FBI a possible method, the government said in court papers requesting the hearing be postponed. Authorities need time to determine “whether it is a viable method that will not compromise data” on the phone.
If viable, “it should eliminate the need for the assistance from Apple,” according to the filing.
The government did not identify the third party or explain what the proposed method entailed.
Magistrate Judge Sheri Pym granted that request and ordered the government to file a status report by April 5. Pym also stayed her Feb. 16 order compelling Apple to create software that would disable security features on the phone, including one that erases all information if a passcode is incorrectly entered more than 10 times.
In a conference call with reporters, Apple attorneys said it’s premature to declare victory in the case because it’s possible that authorities could come back in a few weeks and insist they still need the company’s help. The attorneys spoke under an Apple policy that wouldn’t allow them to be quoted by name.
The company hopes the government will tell Apple about whatever method it uses to access the phone’s encrypted files. But the attorneys said it may be up to the FBI to decide whether to share the information.
The fact that a third party may have found a way into the phone without Apple’s help appears to contradict every sworn affidavit and filing put that the Justice Department has put forward in the last month. The government has argued in each of its filings that Apple’s help is necessary and that the company was the only entity that could provide investigators with what was needed.
FBI Director James Comey told the House Judiciary Committee in sworn testimony earlier this month that agency investigators had approached even the National Security Agency for help but did not have success.
Apple has previously said in court filings that the government did not exhaust all its options, and lawmakers have criticized the FBI for not doing more to try to crack the iPhone itself before seeking Apple’s help.
“To me, it suggests that either the FBI doesn’t understand the technology or they weren’t giving us the whole truth when they said there is no other possible way” of examining the phone without Apple’s help, said Alex Abdo, staff attorney for the American Civil Liberties Union. “Both of those are scary to me.”
The ACLU has filed a court brief supporting Apple’s position.
Robert Cattanach, a former U.S. Department of Justice attorney who handles cyber-security cases for the Dorsey & Whitney law firm, said the government would likely not have disclosed it had a lead on possibly unlocking the phone unless it was almost certain the method would work. That’s because the disclosure weakens the government’s case by introducing doubt that it could only access the phone with Apple’s help, he said.
“They’ve created ambiguity in a place where they’ve previously said there is none,” he said.
Prosecutors have argued that the phone used by Farook probably contains evidence of the Dec. 2 attack in which the county food inspector and his wife, Tashfeen Malik, slaughtered 14 at a holiday luncheon attended by many of his work colleagues. The two were killed in a police shootout hours later.
The FBI has said the couple was inspired by the Islamic State group. Investigators still are trying to piece together what happened and find out if there were collaborators.
The couple destroyed other phones they left behind, and the FBI has been unable to circumvent the passcode needed to unlock the iPhone, which is owned by San Bernardino County and was given to Farook for his job.
Apple has argued that the government was seeking “dangerous power” that exceeds the authority of the All Writs Act of 1789 it cited, and violates the company’s constitutional rights, harms the Apple brand and threatens the trust of its customers to protect their privacy. The 18th-century law has been used on other cases to require third parties to help law enforcement in investigations.
It’s not clear what method the government now wants to test. But even as the FBI has insisted that only Apple is able to provide the help it needs, some technical experts have argued there are other options.
The most viable method involves making a copy of the iPhone’s flash memory drive, said Jonathan Zdziarski, a computer expert who specializes in iPhone forensics. That would allow investigators to make multiple tries at guessing the iPhone’s passcode. A security feature in the phone is designed to automatically erase the data if someone makes 10 wrong guesses in a row.
But if that happens, Zdziarski said, investigators could theoretically restore the data from the backup copy they have created.
The data itself would remain encrypted until the phone is unlocked, but it would remain viable while investigators continued to guess the passcode, he added.
“It’s a lot more involved than it sounds,” Zdziarski cautioned, and no one has demonstrated that it would work in this case.
Some experts have also suggested that investigators could use lasers and acid to deconstruct the phone’s memory chip, in order to physically examine the encrypted data and the encryption algorithm, in hopes of cracking the code. But hardware experts say that method has a high risk of destroying the memory during the process.
The notion of copying the flash memory was raised by U.S. Rep. Darrell Issa, a California Republican who previously ran a car alarm business, during a congressional hearing earlier this month, when Comey insisted that his bureau had explored all other possibilities. It has also been promoted by technical experts advising the ACLU.
The Associated Press contributed to this article.
I have to agree with the ACLU on this one. Either the FBI has no clue what they are dealing with or they weren’t being truthful in their claims that only Apple could unlock the phone.
It’s scary to think the government doesn’t have anyone who is proficient in doing forensics on iOS devices. Apple’s iOS devices are widely used. If the government doesn’t have any ability to work with these then it has a big gap in its intelligence capabilities.
I can’t help but wonder if a programmer from Apple cut a deal with the FBI and secretly unlocked the phone for them. This would explain why Apple is interested in knowing how the FBI is able to unlock the phone. At the end of the day Apple will come out looking good because it stood for the privacy of its customers and it created a device which can’t be easily hacked by the government.
There’s no such thing as 100% secure. And Apple has repeatedly stated (and most it the I industry agrees) that there is no individual-phone-specific way to access the phone. If this third party has gone ahead ace created the “master key” that Apple refused to do, we’ve all lost. The FBI has one of the most-hacked systems in Government. If the methodology is on their servers, you bet you iPhones that China and Russia will be combing industrial secrets from us within a month.
I grew up in the 1950s and have watched many of our USA privacy freedoms, slowly disappear, because of National Security or Governmental Interests.
The Government, forcing the civilian sector to do something, against their will, is finally leading the USA, down a road, to the total erosion of privacy.
The book “1984”, confuses many of the current Generations. The reason for their confusion, is that everything in that book is their reality.
The book “Farenheit 451”, is another book, that has become a reality. The Government and our changing society, no longer tolerate opposing thoughts, written in books.
The Internet and all of its means of access, is the new frontier.
You forgot Brave New World and Atlas Shrugged. One of which hasn’t been produced, and the other had to be funded privately because none of the Hollywood studios would touch it. If you wonder why, watch it.
Like that bumper sticker on a car that frequents out local library: “1984 was a warning, not a manual.”
(And if you think the internet is the answer, I suggest Gundam 00, particularly the second season.)
Of course they have always had other avenues but the communists in this government top down want to destroy everything!!!! in America and make it a third world country. Glad they finally woke up and smelled the coffee because we have no confidence in the FBI either over Hillary, let alone anyone in this administration and its departments which in general are run by leftists or muslims! Now they can go pound sand and maybe lose jobs. Bring on Trump and get this mess cleared and cleaned up NOW! And the empty suit wants more money for his retirement? No way, Jose! We no got da money because you have already spent every darn dime we had and a great deal of it on parties at the WH, super expensive meals and vacations. You have had your moment, now move on and live on the millions you have!
Since when did not having any money stop them?
And who’s woke up? All the people voting for Killary? or Sanders?
It’s relatively well-known now that the NSA records every conversation on every phone call, every keystroke on every computer, every text sent anywhere anytime, and stores that info; maybe the FBI guys were either too lazy or too ignorant or too out-of-the-loop to get NSA cooperation.
Everything that’s TRANSMITTED. What the FBI’s after is data that was stored on the phone and WASN’T transmitted anywhere. Getting information from an isolated device requires physically accessing it.
Wendy-
The only way i can think of to get info onto a phone that is NOT transmitted would be via a thumb or flash drive. If it was dl’ed, it was transmitted. If it came from someone else, it was transmitted. Even the info on a removable drive likely had to be dl’ed from somewhere at some point…and if that somewhere was anywhere on the web…then the NSA would have collected and stored that info.
The bottom line for me is that this tragedy can be laid directly at the feet of D’OweBama, who REMOVED their names from a watch list…or it could have been one of his flunkies/suboordinates. Whoever did it, i want to know, and i want them held responsible – just like an idiot judge who releases the abuser so he can go kill his wife or children or both.
Personally, i applaud Apple’s decision, and wish more corporate entities had the balls to say “No warrant? No probable cause? GTFO of here.” But no; most of ’em just roll over and give the police-state gov’t officials – ostensibly, SWORN officials, public SERVANTS and conditional EMPLOYEES – whatever the hell they want, due process or not, 4th Amendment be damned.
All of the data on this phone was worthless within 24/48 hours after the San Bernardino attack. If the County IT Dept. had set up their phones correctly all of this data would have been available immediately. No need for these FBI hearings and threats. They don’t mention this side of the story, though.
WHY didn’t they do this in the first place instead of making a project out of it! MAYBE they thought Apple would cave in and give them the capability to EASILY hack into everyone’s phones! Besides, why didn’t they just contact the NSA? They were hacking into phones a while back or was that ANOTHER WASHINGTON LIE?
Well, if the FBI is capable of breaking into the phone, why then did they even mess with apple?
It wasn’t about just one phone. It was the camel’s nose under the tent.
If they had gotten what they wanted, encryption would have been deader than a doornail.