FBI may not need Apple's help with that iPhone after all, nevermind, maybe

NYPD officer across the street from Apple's 5th Ave. store, NYC, March 11, 2016. REUTERS

In a surprising turn of events, the U.S. government on Monday paused its battle with Apple over an iPhone, and what may be its greater goal of mandating "backdoors" in consumer encryption. On Monday afternoon, the Justice Department told a judge it needs a couple weeks to try 'new' ways of accessing whatever may be on the device, without Apple's help–and with an assist from unnamed experts from outside the agency.

We don't know what methods. They may or may not be newly developed methods.

Who exactly is that outside help the FBI is now working with, since Apple won't help? The NSA? Some private security firm or individual? No one has said at the time of this blog post.

From Andy Greenberg at Wired:

On Monday afternoon, the Justice Department filed a motion for a continuance on a hearing set to happen tomorrow in Riverside, California, where it would have argued its case that Apple must help it to crack the iPhone 5C of dead San Bernardino killer Syed Rizwan Farook. The FBI hasn't given up on accessing the data in Farook's phone. But it now says it may not need Apple's assistance to crack the device after all, which it had previously told a judge it could legally compel using the 1789 law known as the All Writs Act.

The FBI says its request was triggered by new information it obtained over the weekend.

"On Sunday, March 20, 2016, an outside party demonstrated to the FBI a possible method for unlocking Farook's iPhone," the Justice Department's lawyers wrote in the court filing you can read here.

"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…set forth in the All Writs Act Order in this case."

The timing of Monday's Justice Department request made for an interesting news day. Hours earlier, Apple held one of their big product launches, focused on new iPhones and iPads. Nice to know they still include un-backdoored security.

Showmanship at Apple events is a long-established tradition, but the livestreamed Apple event included a "One More Thing" kicker like none before it.

This time, CEO Tim Cook directly addressed the company's battle with the FBI.

"We did not expect to be in this position at odds with our own government," Cook said. "But we believe strongly that we have a responsibility to help you protect your data and protect your privacy. We owe it to our customers and we owe it to our country. This is an issue that impacts all of us."

It's as if that legendary "1984" ad became real.

As Katie Benner and Matt Apuzzo in the New York Times put it, the postponement filing amounts to the FBI "temporarily sidestepping what has become a bitter clash with the world's most valuable company."

From the NYT:

The emergence of a potential third-party method to open the iPhone was a surprise, as the government said more than a dozen times in court filings that it could open the phone only with Apple's help. The F.B.I. director, James B. Comey Jr., also reiterated that point several times during a hearing before Congress on March 1.

The new method could forestall, but is unlikely to entirely head off, a showdown between Silicon Valley and the Justice Department over encryption.

"This will only delay an inevitable fight over whether the government can force Apple to break the security of its devices," said Alex Abdo, a lawyer with the American Civil Liberties Union, an advocacy group.

If the Justice Department does get what they say they want right now–a successful crack of a terrorist's iPhone–this whole legal battle with Apple fizzles, and FBI doesn't get to push for the bigger war on encryption. That war began long before San Bernardino, as Boing Boing oldtimers, cypherpunks, and @Snowden followers no doubt know.

Public outcry over the FBI's legal assault was swift and sustained. If someone at the Justice Department imagined that the nation's mood after San Bernardino would create a welcome climate for an encryption land grab, they miscalculated.

"Leave Apple Alone!," the internet cried out. But it's bigger than a collective fondness for Apple. In demanding the impossible–security that only allows 'good guys' to get in–the U.S. government picked a fight with math. You never win a fight with math.

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Again, from the Times:

While contentious, the Apple case neatly crystalized that debate in a way that abstract discussions never had. The court fight, regardless of its outcome, would have increased the likelihood that Congress took up legislation to address the issue. Shelving the San Bernardino case could remove a sense of immediacy on the topic.

Former Justice Department computer crime prosecutor Orin Kerr, now a law professor at George Washington University, told Reuters Monday the government is likely only postponing the fight.

"The problem is not going away, it's just been delayed for a year or two," he told Joe Menn at Reuters.

An Apple executive told reporters on a press call that the company knew nothing about the Justice Department's possible method for getting into the phone, and that the government never gave any indication that it was continuing to search for such solutions.

The executive characterized the Justice Department's admission Monday that it never stopped pursuing ways to open the phone as a sharp contrast with its insistence in court filings that only Apple possessed the means to do so.

Nate Cardozo, staff attorney at the Electronic Frontier Foundation, a civil liberties group backing Apple, said the San Bernardino case was the "hand-chosen test case" for the government to establish its authority to access electronic information by whatever means necessary.

In that context, he said, the last-minute discovery of a possible solution and the cancellation of the hearing is "suspicious," and suggests the government might be worried about losing and setting a bad precedent.

More on Monday's #FBIvsAPPLE news: Wired | Reuters | New York Times. And Kim Zetter at WIRED has a great explainer of some of the methods the FBI may be using to attempt to get into the iPhone.

In related news, Reuters reported Monday that a group of US senators is circulating draft legislation to give federal judges a clear legal basis on which to issue "backdoor" orders like the one in FBI vs. Apple.

This proposed legislation doesn't sound great.

The proposal from Senators Richard Burr and Dianne Feinstein, the top Republican and Democrat on the Senate Intelligence Committee, does not spell out how companies must provide access or the circumstances under which they could be ordered to help.

It also does not create specific penalties for noncompliance, leaving that determination to judges, the sources said.

Previous legislative efforts have focused on requiring technology products to have a built-in "back door" for law enforcement. The latest approach would not mandate any specific technology, but rather would require companies to figure out how to access the data.

"Requiring companies to figure out how to access the data" sounds like another way of saying, "guys we still want government backdoors."