The Cable

DOJ to Apple: Never Mind, We Can Hack That Terrorist’s iPhone

A last-minute brief reveals that the government may not need Apple’s help after all.

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Hours before lawyers for Apple and the Justice Department were set to square off in a California courtroom, the U.S. government revealed that it may have found a way to hack into an iPhone at the center of a dispute over the FBI’s authority to compel tech companies to help it access encrypted data.

In a surprise, last-minute filing, Justice Department lawyers wrote that an unidentified “outside party” had on Sunday demonstrated to the FBI a way to hack into an iPhone belonging to Syed Rizwan Farook, who alongside his wife killed 14 people in a December shooting spree in San Bernardino, California.

Justice Department lawyers asked that Tuesday’s scheduled hearing be canceled while the  feds test the new method for accessing encrypted data on Farook’s phone. The judge in the case agreed to the government’s request and ordered the FBI to report back whether it has successfully broken into the phone by April 5.

In a conference call with reporters Monday, Apple lawyers, speaking on condition of anonymity, described the case as another twist in what has been a highly unpredictable case. Monday’s decision by Magistrate Judge Sheri Pym suspends the order that Apple assist the FBI in breaking into Farook’s phone, but Apple lawyers declined to call the decision a victory for the company. They said it remains unclear whether the tool will actually work, and that the government may once more change course and attempt to compel the company’s cooperation.

The legal battle between Apple and the Justice Department has set off a national debate about the government’s ability to access encrypted communications and the right of individuals and companies to keep their data under lock and key. With a growing number of consumer technology companies adopting strong encryption, FBI Director Jim Comey argues that his agents risk losing key evidence and intelligence needed to prevent and prosecute crimes and acts of terrorism.

Apple CEO Tim Cook has argued that the government’s request threatens to undermine security and privacy for millions of Apple customers. “We need to decide as a nation how much power the government should have over our data and over our privacy,” Cook said at a product launch prior to the Justice Department’s Monday move. “We did not expect to be in this position, at odds with our own government. 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.”

Amid this debate, security experts have frequently wondered why the FBI has not handed the phone off to the NSA. With teams of highly skilled hackers, the NSA would all but certainly be able to extract Farook’s data, despite being protected by Apple’s sophisticated security features.

But the government has maintained that it lacks the ability to break into the iPhone 5c provided to Farook by his county employer. In a filing last month, the government claimed that Apple has “the exclusive technical means” to allow the government to search the phone but “has declined to provide that assistance voluntarily.”

Now, the Justice Department has abandoned that position. Monday’s brief is vague on who has provided the technical help to unlock the data. Since finding Farook’s phone on Dec. 3, “the FBI has continued to research methods to gain access to the data stored on it,” the government said in its filing. “The FBI did not cease its efforts after this litigation began.”

Thanks to the publicity generated by the case, “others outside the U.S. government have continued to contact the U.S. government offering avenues of possible research,” the brief notes, adding that the method has not been tested on Farook’s phone and may be unsuccessful.  

The Justice Department did not respond to questions late Monday about who provided the assistance.

Lawyers for Apple said they first learned about the government’s new tool for possibly unlocking the phone on Monday afternoon. They said they have received no details about the technique the government plans to use to access the data and said they were unaware that the FBI was exploring alternatives to legal action to unlock the device.

Apple lawyers said they will attempt to learn about the vulnerability apparently discovered by the FBI, but added that they may have a limited set of options available if the government decides to drop the case.

The Justice Department did not respond to questions late Monday about whether they would disclose the vulnerability to Apple after using it to extract the data.

Photo by Justin Sullivan/Getty Images

Elias Groll is a staff writer at Foreign Policy covering cyberspace, its conflicts, and controversies. @eliasgroll

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