The government today
asked the court for an indefinite postponement of the hearing that was scheduled for tomorrow, stating that it may have discovered a way to access the information on the iPhone in question without forcing Apple to do what it has been wanting Apple to do.
On Sunday, March 20, 2016, an outside party demonstrated to the FBI a possible method for unlocking Farook’s iPhone. 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.
Accordingly, to provide time for testing the method, the government hereby requests that the hearing set for March 22, 2016 be vacated. The government proposes filing a status report with the Court by April 5, 2016.
My initial guess is that this means something like:
(1) The government realizes that it's likely to lose this legal fight as it's on pretty squishy ground arguing that the All Writs Act empowers the court to order Apple to do what the government wants Apple to do and it doesn't want a bad precedent (from its perspective of wanting an expansive understanding of that act in this context) established. Part of the point here was to establish a precedent that would help the government force third parties such as Apple to render extraordinary assistance, such as is being demanded here, going forward. The government doesn't want to let this case backfire on that point. It's better to stop the proceedings - on the eve of the opposing side getting to make its own legal arguments in court for the first time in this matter - than to risk a high profile loss. In other words, there may be some face-saving considerations involved.
(2) The government was hoping to be able to apply enough public pressure to force Apple to roll over and build the so-called back door before the government's arguments in favor of an expansive application of the All Writs Act were put to the test. That didn't work; Apple refused to submit to the government's tactics (something I will be eternally grateful for, regardless of how things play out from here). So with Apple not having blinked nor given any indication that it was going to, the government finally did.
(3) The government accomplished what it wanted in making this a high profile issue in a context that put its basic position - in favor of ensuring its own access to people's personal devices, when it feel it needs such access, going forward - in the most sympathetic light possible. So it can now walk back its legal demands or at least pause them. Hopefully, from its perspective, the rhetoric related to this situation (which, as I've suggested before, I think has been quite misleading) and the impressions created by it have set the stage for a successful push for legislation effectively requiring technology companies to build so-called backdoors into the devices and services that they offer consumers.
I think this means some combination of those things and perhaps others that I haven't mentioned. I think it's highly suspect that the government didn't file this motion under seal. If the situation is just as the government suggests - that they think they might have just, near the last minute, come up with a way to access the information on this iPhone but need some more time to test it - and if nothing else, such as the things I suggest, played into this decision, then I think the government wouldn't have wanted to disclose this new development publicly. I think that's the case for various reasons, to include because I don't think law enforcement - if it thought there was any reasonable chance that it might find something on this iPhone that would lead it to other suspects or prevent more undesirable things from happening - would want to tip other potential bad guys off that it was about to be able to access the information on this iPhone. More generally it wouldn't want to advertise that it had this capability going forward such that would-be terrorists would be on alert that they should take (what are essentially trivial) additional steps to make sure that their communications and such are secure when using iPhones and other smartphones in the future. From the start it was hard to take the government's intentions in this case as sincere given that it chose to go public when it could have pursued the legal remedy it sought under seal.
