The FBI Says a 'Third Party' May Know How to Unlock the iPhone Without Apple’s Help

The tech community and supporters of Apple suggested the timing of the FBI's announcement, just a day before a major hearing in the case, was suspicious.
March 22, 2016, 2:00pm
FBI Director James Comey speaks about the FBI's request to Apple to unlock the iPhone of the San Bernardino shooter during a hearing before the House Select Intelligence Committee. (Photo by Jim Lo Scalzo/EPA)

The US government postponed a major hearing on Tuesday in the court battle to get Apple to unlock an encrypted iPhone used by one of the San Bernardino shooters, claiming at the last minute that an unidentified "third party" has presented a possible method for opening it.

The news was greeted with skepticism by many in the tech community, who have always insisted there were other ways to get into the phone. Former prosecutors and lawyers supporting Apple said the move suggested that the Department of Justice (DOJ) feared it would lose the legal battle, or at minimum would be forced to admit that it had not tried every other way to get into the phone.

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The government insisted until Monday that it had no way to access the phone used by Syed Rizwan Farook, one of the two killers in the December massacre in San Bernardino, California, except to force Apple to write new software that would disable the password protection. Late Monday, it announced that a "third party" — whose identity has not been revealed — presented a way of breaking into the phone on Sunday.

Related: FBI Approved Hack That Complicated Access to San Bernardino Shooter's iPhone Data

A federal judge in Riverside, California, then agreed to the government's request to postpone a hearing scheduled for Tuesday afternoon so that the FBI could try the newly discovered technique. The DOJ said it would update the court on April 5.

The DOJ last month obtained a court order directing Apple to create that software, but Apple has fought back, arguing that the order is an overreach by the government and would undermine computer security for everyone.

The tech community and supporters of Apple suggested the timing of the announcement, just a day before the hearing and after weeks of heated back-and-forth in court filings, was suspicious.

"From a purely technical perspective, one of the most fragile parts of the government's case is the claim that Apple's help is required to unlock the phone," said Matt Blaze, a professor and computer security expert at the University of Pennsylvania. "Many in the technical community have been skeptical that this is true, especially given the government's considerable resources."

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An Apple executive told reporters on a press call that the company knew nothing about the DOJ'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 DOJ's admission on 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.

Related:Edward Snowden Calls 'Bullshit' on FBI's Claim That It Can't Unlock iPhone

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.

But George Washington University law professor Orin Kerr, a former DOJ computer crime prosecutor, said the government was likely only postponing the fight.

"The problem is not going away, it's just been delayed for a year or two," he said.

'The problem is not going away, it's just been delayed for a year or two.'

In a statement, the DOJ said its only interest has always been gaining access to the information on the phone and that it had continued to explore alternatives even as litigation began. It offered no details on the new technique except that it came from a non-governmental third party, but said it was "cautiously optimistic" it would work.

"That is why we asked the court to give us some time to explore this option," a spokeswoman for the Justice Department, Melanie R. Newman, said. "If this solution works, it will allow us to search the phone and continue our investigation into the terrorist attack that killed 14 people and wounded 22 people."

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It would also likely end the case without a legal showdown that many had expected to reach the US Supreme Court.

Related: The Fight Between Apple and the FBI Could Shape the Future of Digital Privacy

Apple said that if the government was successful in getting into the phone, which might involve taking advantage of previously undiscovered vulnerabilities, it hoped officials would share information on how they did so. But if the government drops the case it would be under no obligation to provide information to Apple.

In opposing the court order, Apple's chief executive, Tim Cook, and his allies have argued that it would be unprecedented to force a company to develop a new product to assist a government investigation, and that other law enforcement agencies around the world would rapidly demand similar services.

Law enforcement officials, led by FBI Director James Comey, have countered that access to phones and other devices is crucial for intelligence work and criminal investigations.

The government and the tech industry have clashed for years over similar issues, and Congress has been unable to pass legislation to address the impasse.

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