FBI’s sudden move in Apple case isn’t really a surprise
After an abrupt “motion to vacate” Monday evening, the U.S. Justice Department has won postponement of tomorrow’s planned court hearing on whether Apple should be forced to help the FBI break into the iPhone used by San Bernardino shooter Syed Rizwan Farook.
We don’t yet know all the details behind the government’s choice to postpone its opportunity to argue for its expansive reading of the All Writs Act; news is still breaking on that front. But we do know that Apple’s legal response to the FBI’s demands has been consistently powerful ever since the bureau’s demands became public.
The government claims the delay is due to a late-breaking offer by an unnamed, outside party to demonstrate there are alternative methods to unlock the phone in question. Today’s filing explains that:
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.
Technologists and tech advocates have argued, on multiple occasions, that there are other ways into Farook’s phone. It now appears that those tech arguments were valid. As the Washington Post reported, this move “appears to vindicate Apple’s argument, which is that the U.S. government had not exhausted all available means to recover information from the phone.”
Apple’s arguments on the law in response to the FBI’s demands have been forceful, as well. Ever since the government’s demands became public, the exchange of briefs in advance of what would have been tomorrow’s hearing has become increasingly heated.
As R Street has consistently argued, the FBI’s case went beyond the scope of the law. If we hold fast to our principles as a free society, we have to conclude that there is no argument for security “backdoors” like the one the FBI was seeking to compel Apple to create. When truly secure encryption is outlawed, only outlaws will have secure communications.
After spending the last month making their case in the court of public opinion and in testimony before Congress, the FBI certainly seems to be in a hurry to stop a hearing that would have begun to answer the very legal questions it has insisted on raising.
In what may be merely a coincidence, the government won its motion to vacate the hearing only a few hours after Apple CEO Tim Cook began the company’s spring product announcement with a renewed commitment that his company will continue to oppose the FBI’s demands that Apple write new software to gain access to the phone.