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 A federal judge in Riverside, California, late Monday agreed to
the government's request to postpone a hearing scheduled for Tuesday
so that the FBI could try the newly discovered technique. The
Justice Department said it would update the court on April 5.
The government had insisted until Monday that it had no way to
access the phone used by Rizwan Farook, one of the two killers in
the December massacre in San Bernardino, California, except to force
Apple to write new software that would disable the password
protection.
The Justice Department last month obtained a court order directing
Apple to create that software, but Apple has fought back, arguing
that the order is an overreach by the government and would undermine
computer security for everyone.
The announcement on Monday that an unnamed third party had presented
a way of breaking into the phone on Sunday - just two days before
the hearing and after weeks of heated back-and-forth in court
filings - drew skepticism from many in the tech community who have
insisted that there were other ways to get into the phone.
 “From a purely technical perspective, one of the most fragile parts
of the government's case is the claim that Apple's help is required
to unlock the phone," said Matt Blaze, a professor and computer
security expert at the University of Pennsylvania. "Many in the
technical community have been skeptical that this is true,
especially given the government's considerable resources.”
Former prosecutors and lawyers supporting Apple said the move
suggested that the Justice Department feared it would lose the legal
battle, or at minimum would be forced to admit that it had not tried
every other way to get into the phone.
In a statement, the Justice Department said its only interest has
always been gaining access to the information on the phone and that
it had continued to explore alternatives even as litigation began.
It offered no details on the new technique except that it came from
a non-governmental third party, but said it was "cautiously
optimistic" it would work.
"That is why we asked the court to give us some time to explore this
option," a spokeswoman for the Justice Department, Melanie R.
Newman, said. "If this solution works, it will allow us to search
the phone and continue our investigation into the terrorist attack
that killed 14 people and wounded 22 people."
It would also likely end the case without a legal showdown that many
had expected to reach the U.S. Supreme Court.
An Apple executive told reporters on a press call that the company
knew nothing about the Justice Department's possible method for
getting into the phone, and that the government never gave any
indication that it was continuing to search for such solutions.
The executive characterized the Justice Department’s admission
Monday that it never stopped pursuing ways to open the phone as a
sharp contrast with its insistence in court filings that only Apple
possessed the means to do so.
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Nate Cardozo, staff attorney at the Electronic Frontier Foundation,
a civil liberties group backing Apple, said the San Bernardino case
was the "hand-chosen test case" for the government to establish its
authority to access electronic information by whatever means
necessary.
In that context, he said, the last-minute discovery of a possible
solution and the cancellation of the hearing is "suspicious," and
suggests the government might be worried about losing and setting a
bad precedent.
But George Washington University law professor Orin Kerr, a former
Justice Department computer crime prosecutor, said the government
was likely only postponing the fight.
"The problem is not going away, it's just been delayed for a year or
two," he said.
Apple said that if the government was successful in getting into the
phone, which might involve taking advantage of previously
undiscovered vulnerabilities, it hoped officials would share
information on how they did so. But if the government drops the case
it would be under no obligation to provide information to Apple.
In opposing the court order, Apple's chief executive, Tim Cook, and
his allies have argued that it would be unprecedented to force a
company to develop a new product to assist a government
investigation, and that other law enforcement agencies around the
world would rapidly demand similar services.
Law enforcement officials, led by Federal Bureau of Investigation
Director James Comey, have countered that access to phones and other
devices is crucial for intelligence work and criminal
investigations.
The government and the tech industry have clashed for years over
similar issues, and Congress has been unable to pass legislation to
address the impasse.
(Reporting by Joseph Menn, additional reporting by Mari Saito;
Editing by Leslie Adler and Andrew Hay)
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