Surprise! The DOJ Says It May Have Another Way To Unlock The San Bernardino iPhone (Updated)

Mark Sullivan March 21, 2016

The Justice Department has filed a surprise 11th hour motion to delay Tuesday’s long-awaited hearing on the iPhone encryption battle between the FBI and Apple. It had previously said that it needed Apple’s help to unlock the iPhone 5s of San Bernardino shooter Syed Farook, but it now believes it has another way to access the phone.

“On Sunday, March 20, 2016, an outside party demonstrated to the FBI a possible method for unlocking [terrorist Syed] Farook’s iPhone,” Justice Department attorneys wrote in a court filing Monday afternoon.

“Testing is required to determine whether it is a viable method that will not compromise data on Farook’s iPhone,” the filing reads. “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.”

“Accordingly, to provide time for testing the method, the government hereby requests that the hearing set for March 22, 2016 be vacated,” the motion reads. “The government proposes filing a status report with the Court by April 5, 2016.”

The DOJ says that it contacted Apple’s attorneys about its finding and motion at around 2:45 p.m. Eastern Monday, and requested a conference call with the District Court in Riverside, Calif. Apple said late Monday it was taken completely by surprise by the DOJ’s motion.

The court has now postponed the hearing, and has put an indefinite stay on the original February 16th order signed by Judge Pym. Apple will now wait for the government’s next move.

If the postponement is indeed the first step in a cooling down period, a huge standoff in the government’s fight for a “backdoor” to user encryption data would be defused. The debate would probably resume in another very different forum, like the Congress.

Speaking of Congress, a new body called the Encryption Workgroup was announced at roughly the same time Monday that the DOJ filed its motion to postpone the hearing in California. Coincidence? The new group was created by the House Committee on the Judiciary (the group that held the March 1 encryption hearings), and the Committee on Energy and Commerce.

“In the last few weeks, we’ve heard a lot of debate over privacy and encryption, security, and backdoors,” said Rep. Darrell Issa (R-Calif.), a member of the new committee. “I am honored to be a part of this working group so that lawmakers, on all sides of the issue, can get together to talk about the best path forward to protect the privacy and security of our personal information in the the digital age that is the 21st century.”

You can find the DOJ’s filing here, courtesy of NPR.

Updated 9:10 p.m. with news that the court has postponed the hearing and granted a stay on the order.