Encryption Fight: How Many Times Can The Government Cry Wolf?

In two high-profile cases now, the government has gone to court to force Apple to help break into a criminal’s iPhone—only to abandon its legal effort at the eleventh hour before a crucial hearing or filing deadline.

In the much-publicized San Bernardino case, the FBI announced it would abandon its cause because an unnamed third party had come forward with a way to crack the iPhone of gunman Syed Farook without Apple’s help.

Then in a Brooklyn case, the Justice Department abandoned its request for a court order after Jun Feng, a convicted drug trafficker, provided his passcode when the feds asked him for it. Emily Pierce, a spokeswoman for the Justice Department, said the DOJ had asked Feng for the passcode much earlier and that he claimed to have forgotten it.

Some have speculated that the two cases are part of a larger plan. The government, the thinking goes, is trying to establish a precedent for compelling tech companies like Apple to provide a “backdoor” or “skeleton key” to encrypted data their customers store in their devices or apps. Government agencies like the FBI and the Justice Department would like to be able to easily obtain a court order—underpinned by the 1789 All Writs Act—compelling tech companies to cooperate with authorities.

Pierce denies that such a strategy exists.

“As we have said previously, these cases have never been about setting a court precedent,” Pierce said in a statement after the DOJ abandoned the Brooklyn case last week. “They are about law enforcement’s ability and need to access evidence on devices pursuant to lawful court orders and search warrants.”

Meanwhile, an FBI spokesman stresses that his agency has been talking about these challenges for the past 18 months in speeches, Congressional testimonies, and other forums. Authorities contend that digital spaces like phones are “going dark” as tech companies shut off access to law enforcement by deploying stronger encryption in their products.

Sure it’s possible that, coincidentally, the government lost its need for a court order at the last minute in two separate extremely high-profile cases in the battle over encryption backdoors. But considering how remarkable it is that these cases would be tried in open court in the first place, the “coincidence” theory wears a little thin.

The question is, now that the government has thrown in the towel in two cases, will it will try again in a new case in some other court? And if it does, will the judge believe that it has truly exhausted all other means and needs Apple’s assistance? In both the San Bernardino and Brooklyn cases, the government insisted that Apple’s help was the only way, and that turned out not to be true.

“We certainly know that other options do exist; the Farook case demonstrated that,” says Matthew Green, a computer science professor at Johns Hopkins University. “This seems particularly important in cases where the case is relatively cold, and there is no urgency to find a solution.”

Some believe we’ve seen the last of the government’s All Writs Act tactic.

“My best guess is that after yet another eleventh-hour reversal, DOJ won’t bring another of these All Writs Act cases,” says Andrew Crocker, an attorney with the Electronic Frontier Foundation. “Instead, I think we should expect to see even stronger efforts to pass some sort of anti-security bill in Congress—the sort of government access mandate we’ve seen in the Burr-Feinstein proposal.”

Maybe that’s the real end game here. Few would deny that encryption has become far more top-of-mind to members of Congress since Apple and the FBI began their feud in mid-February. The number of hearings on encryption-related subjects has picked up, motivated in particular by the government’s high-profile joust with Apple.

But if the Burr-Feinstein bill (called the “Compliance with Court Orders Act of 2016”) is the kind of legislation the national security and law enforcement communities hoped to push into existence, the effort may be all for naught. The bill guarantees government agencies the right to reach into encrypted spaces with the “technical assistance” of tech companies, but it’s also raised alarms across the tech industry, and it already faces heavy opposition in both houses of Congress.