document.141

US authorities drop another iPhone fight after being given passcode

The legal maneuverings in two cases illustrate the challenge Washington faces as it pressures the technology industry to build wiretap-friendly products


The US government dropped a court case that could have forced Apple to unlock one of its iPhones, the second time it has done so in as many months.

The Department of Justice on Friday night told a federal judge in New York that someone had given investigators the passcode to an iPhone linked to a local drug investigation.

The reversal comes after the government abandoned a high-profile case to force Apple to help it hack into a phone used by San Bernardino gunman Syed Farook. In that instance, the FBI announced less than 24 hours before its court date that it no longer needed Apple’s help because it had purchased a hacking tool to break into the phone.

Taken together, the legal maneuverings illustrate the challenge Washington faces as it pressures the technology industry to build wiretap-friendly products. Authorities seek to show that they are missing out on key evidence because of strong encryption and new privacy features.

But as the two cases demonstrate, there are a lot of ways to gather information.

“Yesterday evening, an individual provided the passcode to the iPhone at issue in this case,” the government wrote in its filing Friday night. “The government used that passcode by hand and gained access to the iPhone.”

The government declined to disclose any details on the individual who supplied the passcode. Apple declined to comment.

The closely watched New York case already featured several unusual twists and turns.

Until 2013, it was commonplace for Apple to help the government extract data from locked iPhones. But following several high-profile data breaches and the Edward Snowden surveillance leaks, Silicon Valley began adding stronger encryption and privacy features to its products. Apple, among other things, engineered its new phone software such that it could no longer extract data for authorities.

However, the phone in the New York drug case was running older software Apple could still crack, even if the phone was locked.

Starting last fall, Apple began objecting to the legal theory the government was using in many of its iPhone unlocking cases. US attorneys were citing the All Writs Act, a vague legal principle from America’s founding that gives courts broad authority to make sure orders – such as iPhone search warrants – are executed.

The worry among some civil liberties advocates was that such a theory, if uncontested, could eventually be used to force technology companies to rejigger products with strong encryption to make them more accessible to investigators.

The question became moot in late 2015 after the defendant pleaded guilty. Still, the government and Apple urged the court to rule anyway, apparently to help set a legal precedent for such iPhone unlocking cases.

That strategy didn’t work in the government’s favor. In February, as the government prepared to battle Apple in court over the San Bernardino phone, federal magistrate judge James Orenstein ruled in Apple’s favor.

The government then appealed and the two sides were headed back to court.

“These cases have never been about setting a court precedent; they are about law enforcement’s ability and need to access evidence,” DoJ spokeswoman Emily Pierce said in a written statement. “Because we now have access to the data we sought, we notified the court of this recent development and have withdrawn our request for assistance.”

It remains unclear who else would have had access to the drug dealer’s phone passcode in the New York case. In a legal filing last week, Apple’s attorneys suggested the government just ask the defendant himself.