The FBI Just Turned the iPhone Unlocking Hearing into an Evidentiary Hearing

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Surprise! Apple and the FBI are scheduled to present their opposing arguments next Tuesday over the iPhone unlocking court order, but the Department of Justice just turned that into an evidentiary hearing. Requesting a change like this so close to a hearing date is unusual, and could be a sign the government fears it doesn't have a strong case.

FBI gives Apple the switch-er-oo and changes next Tuesday's court date into an evidentiary hearingFBI gives Apple the switch-er-oo and changes next Tuesday's court date into an evidentiary hearing

Apple's own legal team said it was surprised by the request, and that this is something the FBI should've requested weeks ago. The last minute change doesn't give Apple much time to prepare for a hearing where now its witnesses will be subjected to cross examination, meaning the FBI's attorneys will be able to question Apple's witnesses. The change means Apple's legal team will be able to question the FBI's witnesses, too, but they'll likely be better prepared since it's possible the DOJ started coaching its people ahead of springing the change on Apple.

The hearing was spawned from the FBI's investigation into Syed Farook and Tashfeen Malik who shot and killed 14 of their San Bernardino County coworkers last December and injured 22 others. The two were killed in a shootout with police who later recovered Mr. Farook's county-issued iPhone 5c.

Apple helped the FBI recover as much data from the locked iPhone as they could, but told the government it couldn't work around the passcode to get at encrypted information. The FBI then went to Federal Court where it obtained an order compelling Apple to create a version of the iPhone operating system that removes the security features blocking brute force attacks on passcodes.

Apple responded by filing a motion to vacate the order, along with a formal objection, calling it an overreach of government authority and a dangerous precedent that would erode privacy and security. Both sides submitted their arguments to the court, which they'll defend at next week's hearing.

Erik Neuenschwander, Apple's product security and privacy manager, along with global privacy and law enforcement compliance team manager Lisa Ollie, will testify on behalf of the iPhone maker. The two agents who filed declarations as part of the FBI's response will testify for the DOJ.

Even if Judge Pym, who is overseeing the case, rules in favor of the DOJ and orders Apple to comply with the order there's a good chance the FBI still won't get the less secure iOS it wants. Apple's iOS coding team is reportedly talking about walking off the job should the court order stand. Apple could be held in contempt of court should that happen, but in the end that wouldn't change the fact that the company wouldn't have people qualified to work on the what's been dubbed GovtOS.

Apple and the FBI will face off at 1PM pacific time on Tuesday, March 22. Be sure to check in with The Mac Observer for our hearing coverage.

[Thanks to Engadget for the heads up]

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Whichever way this goes, nobody need worry about “walking” any time soon.

This is certain to be appealed and I expect that it won’t be settled this year.


Yo, Jeff. l may be the only one in the world that would like more details on this case, but I would love to know more about what type of hearing this had been scheduled to be before, and what the differences are between that and an ‘evidentiary hearing’.  Obviously, I lack a background in law.
Is the only difference that now there will be cross examinations of witnesses? Does this change how soon the judge will hand down her ruling, and do we know how long that will take anyway?


Interesting question.

As scheduled previously, it would have just been the Judge asking questions of the lawyers, and possibly a little back-and-forth between them.

This puts it into a new space and, to be honest, I am surprised that the Judge did not delay the hearing for a week or two. I’m sure the FBI has been preparing its witnesses for this, and waited to spring it on Apple as late as possible. The Judge might well hold this against the FBI as being unfair.

Lee Dronick

At least it isn’t before Judge Koh


Let’s hope not, Lee. Good grief. This has ballooned into the biggest government temper tantrum I have seen in my life. I have zero sympathy for the FBI, that they could be so simultaneously devious and inept is making my brain hurt.


I love how this is playing out in public, complete overreach by government (normally done behind doors in the shadows)!!!

Any contacts or messages on the iPhone at this point are useless, people have changed phones, locations, and create new ID and passports. This is all drama in the war on crypto & privacy.

Lee Dronick

JustCause I am thinking that they want a precedent so that they can look into the phones of all sorts of suspects and arrestees.

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