FBI Asks Court to Cancel to Tuesday’s Hearing with Apple, Court Agrees

| Analysis

Apple in courtThe FBI has thrown a large wrinkle into its ongoing fight with Apple by requesting Tuesday's evidentiary hearing be vacated, or canceled. In a filing with the court, the government said an unidentified third party had stepped forward with a way of accessing the data on the iPhone of dead terrorist Syed Farook, and that if it works, Apple's help will no longer be needed.

United States Magistrate Judge Sherri Pym agreed to vacate the hearing, and asked for a status update from the FBI by April 5th.

The FBI's filing said that an unspecified third party had stepped forward with a method of unlocking the device. The filing's wording implies that the third party is "outside the government," but the wording actually allows for the specific third party to be either outside the government or within the government (i.e. the NSA).

The relevant passage, from the document posted to Scribd:

Specifically, since recovering Farook’s iPhone on December 3, 2015, the FBI has continued to research methods to gain access to the data stored on it. The FBI did not cease its efforts after this litigation began. As the FBI continued to conduct its own research, and as a result of the worldwide publicity and attention on this case, others outside the U.S. government have continued to contact the U.S. government offering avenues of possible research.

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.

Accordingly, to provide time for testing the method, the government hereby requests that the hearing set for March 22, 2016 be vacated.

The FBI hasn't dropped its demand that Apple create what Apple has dubbed GovtOS, it's simply put the process on hold while it works on this supposed new method for unlocking the device. If the new method fails to unlock the device, the FBI would be free to resume its court action against Apple.

That begs the question of whether the FBI is capitulating. A reasonable person might think that if the FBI thought it could win, it would have continued to pursue its court order against Apple in order to establish the precedent that the All Writs Act can compel companies like Apple to do things like write GovtOS. If it then failed to secure that court order through the various appeals processes, it could fall back on the unnamed third party's method.

A reasonable person might also conclude that the FBI realized its case was flimsy and that the precedent that was going to be set would be that the All Writs Act could not be used in this way, and that the agency and the U.S. Department of Justice were therefore keen to put the brakes on the whole thing before it turned into a disaster from their point of view.

Unless this case resumes, it will then be up to the U.S. Congress to pass legislation governing privacy, encryption, and our devices, something that needs to take place one way or another.

Popular TMO Stories



OK, the FBI was on track to lose the precedent they wanted, so cancelling was good in that way.

Now, they have a crack or they don’t.  Either way, if they admit they can’t get in, it’s a loss of face.  If they claim they can, they throw shade at Apple’s vaunted security - especially if they refuse to explain how.  After all, explaining how they did it might allow Apple to fix it.

Look for the FBI to announce that they cracked it, but found nothing of value - refusing to explain the crack at all.  We’ll know the truth in about ten years, after a Freedom of Information Request works its way through.


Makes me wonder if they are feeling confident the anti-encryption bill floating around the Senate will be passed. Also, your average person isn’t going to know how to roll their own encryption, the only individuals that will have it will be the tech-savvy and the tech-savvy with ill-intent, a fact that the intelligence community couldn’t possibly be ignorant of. It still doesn’t make a whole lot of sense. . . .


Somebody realized they were losing the PR war and were about to lose in court. I suspect there is a way for them to break in, it is only a 5C after all. Whatever the method though, it likely won’t work on later iPhones.

Old UNIX Guy

MonkeyT - from what I’ve read if the FBI is successful in cracking the phone via the 3rd party method then Apple can (and will) go to court to learn how it was done and plug it, of course.

I have to agree with all of you who are of the opinion that:  1) the FBI knew they were going to lose in court, and 2) are buying time hoping the Senate will pass a law requiring back doors.

It’s not too early to be writing your Senators and Congress(wo)men and letting them know that you demand that they vote against such lunacy.  I’ve already done so, even though I live in TN and know that my Senators are worthless idiots who will go along with whatever Mitch the Moron McConnell tells them to do…

Lee Dronick

Or they don’t have a 3rd party method and are just saving face while scoring a hit against encryption. “The security expert unlocked the iPhone for us, but there was only work related data on it.”

Old UNIX Guy

Lee - Don’t think that scenario is possible because Apple has made it clear (from what I’ve read) that if the FBI claims that the 3rd party method worked then they’re going to go to court if necessary to find out how it was done.  That would force the FBI to admit that they didn’t really crack it…


Making this clear as mud aren’t they all:
Apple-iOS is so secure we cannot even access the info-oops they can.
DOJ-Only Apple can provide the keys to unlocking this phone-oops mystery party also can.
Security experts-DOJ is trying to force Apple into making us all easy hacker targets-oops we already are.

Apple-Tell us who and how this will be done.
DOJ-Not a chance.
Mysterious third party-We will tell you Apple; but there is a fee.

Wow, I am so relieved to know that Apple has maybe won.


  I don’t see how Apple can force anyone let alone the FBI to tell them how they got the phone hacked. What is the precedent there?
  And, how come they couldn’t find the hard drive in the lake? Seems to me any incriminating stuff would be on the HD and NOT in my employer owned iPhone - unless I’m a really dumb criminal. Man, this is boring stuff considering Belgium today and the Big Picture. Two idiots in San Bernadoo doth not make Daesh. You want terrorism? Go to a Trump rally.

Lee Dronick

  And, how come they couldn’t find the hard drive in the lake?

The lake bottom may be deep muck, contain numerous small metal objects, little visibility, if the hard drive is in there it might in pieces. The diver could have missed it.

Log in to comment (TMO, Twitter or Facebook) or Register for a TMO account