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FBI may have way to unlock San Bernardino attacker’s iPhone

Federal prosecutors said ‘‘an outside party’’ has come forward and shown the FBI a possible method for unlocking the phone used by one of the San Bernardino shooters.Carolyn Kaster/Associated Press/File

RIVERSIDE, Calif. — The Justice Department said Monday that it might no longer need Apple’s assistance to help open an iPhone used by a gunman in last year’s San Bernardino, Calif., mass shooting, leading to a postponement of a key hearing over the issue and potentially sidestepping what has become a bitter clash with the world’s most valuable company.

The dramatic turn of events came after the Justice Department said in a new court filing that as of Sunday, an outside party had demonstrated a way for the FBI to possibly unlock the phone used by Syed Rizwan Farook, one of the San Bernardino attackers. The hearing in the contentious case — Apple has loudly opposed opening up the iPhone, citing privacy concerns and igniting a heated debate with the government — was originally scheduled for Tuesday.


“Testing is required to determine whether it is a viable method that will not compromise data on Farook’s iPhone,” the Justice Department wrote in the filing. “If the method is viable, it should eliminate the need for the assistance from Apple.”

The Justice Department added that it would file a status report by April 5 on its progress on unlocking the iPhone.

Late Monday, Judge Sheri Pym, the federal magistrate judge in the US District Court for the Central District of California who was set to hold the hearing on Tuesday between the two sides, agreed to grant the Justice Department’s motion to postpone the hearing.

The Justice Department’s move may help avoid the clash that has erupted between the US government and Apple over how and when the authorities should use the troves of digital data collected and stored by tech companies. The two sides have traded barbs over the issue for weeks, ever since Apple received a court order last month requesting that the company comply with an order to weaken the security of the iPhone so law enforcement officials could gain access to the data in it.


The case has been viewed as a watershed moment in the debate over privacy and security. Apple had opposed the court order on the grounds that it would lead to a slippery slope of potentially having to open many iPhones, thus compromising the privacy of its many consumers. President Obama said this month that law enforcement authorities must be able to legally collect information from smartphones and other electronic devices.

The case also spotlighted the All Writs Act, a legal statute that dates to 1789 and which the government was using as a key underpinning of its case.

“This could render the whole dispute moot,” Joseph DeMarco, a former federal prosecutor who filed a brief on behalf of law enforcement groups that supported the Justice Department in this case, said of the new filing. “The issue at hand is whether the government can use the All Writs Act to force an unwilling third party, Apple, to create a back door. But if it can find a willing third party to break into the phone, then the All Writs Act argument is moot.”

In a statement, Melanie Newsom, a spokeswoman for the Justice Department, said the FBI had continued to work on ways to gain access to the contents of the iPhone used by Farook, even as the fight between Apple and the government was unfolding.


“We must first test this method to ensure that it doesn’t destroy the data on the phone, but we remain cautiously optimistic,” Newsom said. “That is why we asked the court to give us some time to explore this option.”

On a conference call with reporters late Monday, a law enforcement official — when asked about whether putting this case to rest is a lost opportunity to put to the test law enforcement’s demands for better access to Apple’s products — said the case was never about setting a precedent, but only about getting information from a dead terrorist’s phone to gather evidence about the attack.

The law enforcement official declined to name the outside party that approached investigators with a possible method for opening the phone.

He said that investigators were cautiously optimistic about getting data from the phone, but that further testing is required.

Apple did not immediately have a comment on the Justice Department’s new filing.

At a product event Monday at Apple’s Cupertino, Calif., headquarters, Timothy Cook, the company’s chief executive, said Apple believed it had a responsibility to help protect users’ data.

“This is an issue that impacts all of us and we will not shrink from this responsibility,” Cook said.

The Justice Department’s move is unlikely to end the debate over privacy, security, and access to digital data, said Alex Abdo, a lawyer with the American Civil Liberties Union, an advocacy group.

“This will only delay an inevitable fight over whether the government can force Apple to break the security of its devices,” he said.