What looked like the next big encryption battle between Apple and the FBI appears to have reached an impasse, according to unsealed court documents and a source familiar with the case.
The case, which Motherboard first reported last week, involves a warrant issued for an iPhone belonging to an alleged member of the Columbia Point Dawgz, a Dorchester and Boston, Massachusetts-based street gang.
In February, Apple was ordered by Magistrate Judge Marianne Bowler to assist the FBI in getting data from the phone of one the alleged gang members, Desmond Crawford, according to Court documents unsealed Friday in response to a request to unseal from the American Civil Liberties Union.
"Such reasonable technical assistance consists of, to the extent possible, extracting data from the Device, copying the data from the Device onto an external hard drive or other storage medium, and returning the aforementioned storage medium to law enforcement, and/or providing the FBI with the suspect Personal Identification Number," Bowler wrote.
But, unlike the high-profile encryption case in San Bernardino, the judge's order said that "Apple is not required to attempt to decrypt, or otherwise enable law enforcement's attempts to access any encrypted data."
That appears to make the order functionally useless, since there is no way for Apple to meaningfully assist the government without attempting to circumvent the phone's encryption.
Apple nonetheless responded by refusing the order on February 9, according to a list of pending legal cases the company's lawyers posted. Since then, the government has not pursued the case, despite having a favorable order from the judge, a person close to the matter told to Motherboard.
The Massachusetts case is unique because it's the first of its kind involving a newer model iPhone—an iPhone 6 Plus running iOS 9.1—that likely can not be unlocked using the mysterious method the government wound up using on the older iPhone 5c of Syed Farook, one of the San Bernardino shooters. In addition to security features that automatically wipe the device after 10 passcode attempts, newer models including the iPhone 6 and up have a hardware-backed security feature called Secure Enclave, which makes breaking into the devices significantly harder.
Thus, the case appears to have entered legal limbo, both because the government has failed to respond to Apple's refusal and because Apple has no way of accessing the phone's data anyway.
A spokesperson for the FBI declined to comment, citing the fact that this is an ongoing investigation, and deferred comment to the Department of Justice.
A spokesperson for the Department of Justice said in a statement that the government has yet to decide whether it wants to force Apple to comply with the order.
"As we noted in previous court filings, there are many cases around the country in which iPhones hold critical evidence. In several instances, Apple has been served with an All Writs Act order to provide assistance," DOJ spokesperson Emily Pierce said in a statement. "In most of the cases, rather than challenge the orders in court, Apple has simply deferred complying with them, without seeking appropriate judicial relief. In this specific case, Apple has represented that they were unable and unwilling to comply with the court's order, and no decision has been made by the government on whether to seek additional orders compelling Apple's assistance in this matter."
Apple did not respond to a request for comment.
Correction: This post has been updated to clarify that the judge ordered Apple to get the data out of the phone, not help FBI get into the phone. Also, a previous version of this story also said the judge's order was unsealed in response to a FOIA request from the ACLU, but it was actually a motion to unseal.