The Department of Justice (DoJ) requested that the Court postpone the hearing that was supposed to happen today, possibly to avoid a precedent it wouldn’t have liked in the iPhone unlocking case.
A PR Battle All Along
Even though the FBI and the DoJ have insisted that this case was never about setting a precedent, the reality is they could’ve selected any of the other tens or hundreds of similar cases where they wanted phones to be unlocked. However, they selected the case that involved terrorists and was already highly mediatized in which to fight Apple.
The FBI versus Apple fight is not a new one. It started about a year and a half ago when the FBI’s Director, James Comey, embarked on a media campaign in which he would he would attack Apple for its strong encryption while also demanding backdoors and master keys.
If the FBI would have won this particular fight against Apple, it may have succeeded in getting the public and Congress’ support to compel companies to add backdoors to their encryption or decrypt their communications and devices on demand. That’s why the PR battle has been possibly more important here than in any particular case.
What The DoJ Is Saying
The DoJ said that the last-minute request for a hearing delay is because it may have discovered a new way into the iPhone, and it wouldn’t need Apple’s assistance to do it.
“On Sunday, March 20, 2016, an outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone. 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 Inc. (‘Apple’) set forth in the All Writs Act Order in this case,” said the DoJ attorneys in the recent Court filing.“Accordingly, to provide time for testing the method, the government hereby requests that the hearing set for March 22, 2016 be vacated. The government proposes filing a status report with the Court by April 5, 2016,” they added.
Other former intelligence officials and the ACLU have said before that it was quite possible for the FBI to unlock the device itself, either by employing some hardware hacking methods, or by asking the NSA to do it for them. However, the FBI and the DoJ have insisted that it must be Apple itself that unlocks the iPhone.
Hardware hacking is not as easy as simply demanding that Apple unlocks the device, though. It requires special skills and tools, which might not be plentiful at the FBI or at local law enforcement agencies. They would need to also use them in more important cases and not just for any crime. This could be yet another reason why the DoJ would have rather set the precedent to be able to compel companies to unlock devices in any case.
DoJ Lost The PR Battle
With the recent request to delay the hearing, the DoJ is showing that it may have already lost the PR battle. It’s a big win for Apple, which likely means that the DoJ won’t try to use the All Writs Act against Apple anytime soon. Apple should now also be free to implement even stronger security measures for its devices and services, such as the rumored client-side encrypted iCloud storage, and adopting true end-to-end encryption for iMessage that’s more in line with what Signal and Whatsapp use.
However, this is not a complete loss for the DoJ. The Justice Department can continue to try and compel other companies, perhaps smaller ones, that wouldn’t have the courage to take on the government the way Apple did, or those that are friendlier to the U.S. government. It may even manage to gather a few precedents in its favor in several lower Courts. However, those would likely have to be tested against companies such as Apple, which have perhaps better lawyers, in the future.
The new hearing was set for April 5, but it’s now likely that the DoJ may try to drop the case completely in order to avoid a legal precedent that would establish that the government can in no way compel companies to write software for them, add backdoors, or decrypt devices.