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U.S. Says It May Not Need Apple's Help to Unlock iPhone

The Justice Department said on Monday that it might no longer need Apple's assistance in opening an iPhone used by a gunman in the San Bernardino, Calif., rampage last year.

The disclosure led a judge to postpone a court hearing over the issue and temporarily sidesteps what has become a bitter clash with the world's most valuable company.

In a new court filing, the government said an outside party had demonstrated a way for the F.B.I. to possibly unlock the phone used by the gunman, Syed Rizwan Farook. The hearing in the contentious case — Apple has loudly opposed opening the iPhone, citing privacy concerns and igniting a heated debate — was originally set for Tuesday.

While the Justice Department must test this method, if it works "it should eliminate the need for the assistance from Apple," it said in its filing. The Justice Department added that it would file a status report by April 5 on its progress.

The change is a reprieve in the clash that has erupted over how and when the authorities should use the troves of digital data collected and stored by tech companies. The two sides have traded barbs over the issue since last month, when Apple received a court order demanding that the company weaken the security of the iPhone so law enforcement officials could gain access to the data in it.

The case has been viewed as a watershed moment in the debate over privacy and security.

Apple had opposed the court order, arguing that it would be a slippery slope that could force the company to open many iPhones, thus compromising the privacy of its customers and the strength of its product security. President Obama said this month that the law enforcement authorities must be able to legally collect information from smartphones and other devices, adding that he opposed the stance on encryption taken by tech companies like Apple.

Late on Monday, Judge Sheri N. Pym, the federal magistrate judge in the United States District Court for the Central District of California who was set to hold the hearing, agreed to grant the Justice Department's motion to postpone the hearing.

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.

For the Justice Department, cracking the iPhone would be a mixed blessing. While it would give investigators access to data that they see as crucial to a terrorism investigation, it would cut short the encryption debate that the F.B.I. had been trying to start for years before the Apple case came along.

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.

The case could flare anew in court if the third-party method for opening the iPhone falters. In a conference call late Monday, a federal law enforcement official, who spoke to reporters on the condition of anonymity, said the government legally had to explore all outside methods of opening up the iPhone. If the government exhausted those options, then it could turn back to the courts to compel Apple to help open the device.

The law enforcement official declined to name the outside party that approached investigators with a possible method for opening the phone. He said that investigators were cautiously optimistic about getting data from the phone, but that further testing is required.

The government has been using the All Writs Act, a legal statute that dates to 1789, as a key underpinning of its case.

"The issue at hand is whether the government can use the All Writs Act to force an unwilling third party, Apple, to create what it claims is a back door," said Joseph DeMarco, a former federal prosecutor who filed a brief on behalf of law enforcement groups that supported the Justice Department in this case. " But if it can find a willing third party to break into the phone, then the All Writs Act argument is moot."

In a statement, Melanie Newman, a spokeswoman for the Justice Department, said the F.B.I. had continued to work on ways to gain access to the contents of the iPhone used by Mr. Farook, even as the fight between Apple and the government was unfolding.

A senior Apple executive, who spoke to reporters on the condition of anonymity late Monday, said should the government fail to unlock the phone and continue its fight with the company, Apple would want to know more about the outside party that has claimed it can break into the iPhone, in order to learn what methods could circumvent the company's security features. The executive said that Apple had no knowledge of what capability the government might soon have and that it learned about it on Monday.

In the meantime, Apple has continued to repeat its message of privacy. At a product event on Monday at the company's Cupertino, Calif., headquarters, Timothy D. Cook, Apple's chief executive, emphasized a philosophy of helping to protect users' data.

"This is an issue that impacts all of us and we will not shrink from this responsibility," Mr. Cook said.

[Source: By Katie Benner and Matt Apuzzo, The New York Times, Riverside, Cal, 21Mar16]

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Privacy and counterintelligence
small logoThis document has been published on 23Mar16 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.