FBI to Apple: We don't need your iPhone hack

The law enforcement agency reveals an outside party has shown it a way that could unlock a terrorist's iPhone 5C without Apple's help.

Nate Ralph/CNET

The FBI might not need Apple after all in its quest to open an iPhone 5C that was used by San Bernardino shooter Syed Farook.

In a surprise revelation, the government said Monday that an unnamed outside party has provided investigators with a method that might provide access to the phone's data.

The US Department of Justice on Monday requested a motion to cancel a Tuesday hearing on whether a federal court order could force Apple to help it open the phone, which is protected by encryption. US Magistrate Sheri Pym, the same judge who previously ordered Apple to help unlock the encrypted iPhone, approved the motion.

The canceled hearing is a strange twist in a heated battle over whether a court can order a company to create software to break its own privacy protections at the government's request.

The case may not be closed, though, because the FBI still has to make sure the technique will work.

CEO Tim Cook at Apple's iPhone SE event Monday, on the government's demand: "This is an issue that impacts all of us."

Screenshot by Josh Miller/CNET

"Testing is required to determine whether it is a viable method that will not compromise data on Farook's iPhone," lawyers for the Justice Department wrote in the motion. "If the method is viable, it should eliminate the need for the assistance from Apple Inc. set forth in the All Writs Act Order in this case."

"[W]e remain cautiously optimistic," Justice Department spokeswoman Melanie Newman said in statement. "That is why we asked the court to give us some time to explore this option. 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."

The Justice Department declined to comment on who the outside party is that is providing help. The Justice Department also said it has been ordered by the court to file a status report on hacking the terrorist's iPhone by April 5.

During a conference call with reporters Monday evening, Apple attorneys said it was premature to call the hearing's cancellation a legal victory, cautioning that the company may be back in court on the same case in two weeks. Apple attorneys went on to say that the FBI hadn't described the nature of any iPhone vulnerability it might be using to crack the phone, adding that the company only learned of the development Monday afternoon.

At its spring event announcing new products earlier on Monday, Apple CEO Tim Cook vowed to stand strong against the government's efforts to conscript it into helping break into iPhones. "This is an issue that impacts all of us, and we will not shrink from this responsibility," Cook said. Apple also announced a new 4-inch iPhone model -- the iPhone SE -- that has all the latest encryption and security features inside, in addition to releasing an updated version of the software that runs its phones, iOS, that patches a hole in the end-to-end encryption offered in the iMessage app.

In the meantime, some US lawmakers are looking for another avenue to force cooperation in similar cases in the future. A group of US senators has begun circulating draft legislation that would give federal judges the authority to order technology companies like Apple to help law enforcement officials access encrypted data, sources familiar with the discussions tell Reuters.

The iPhone is designed to remain encrypted until it's unlocked with a passcode. If investigators copy the hard drive, the data will remain scrambled. What's more, if investigators enter 10 wrong passcodes, the iPhone's data will be wiped. That means if the method the FBI has found fails, it could render the data completely irretrievable.

Apple has vehemently fought the court's order to write a software update for the phone that would let the FBI try as many passwords as possible. With a large but limited amount of numerical combinations possible, it would be easy for investigators to get into the phone if they could make unlimited attempts.

But if the FBI isn't able to open the phone, it will have to go back to the court to try to enforce the order. The agency is also trying to get Apple to help open iPhones in at least nine other cases, but this is the only case in which a judge has ordered the company to help. In a separate case in federal court in New York, a judge sided with Apple and declined to order the company to help open the phone in question.

Apple and the Justice Department disagree over how many iPhones the court order would affect. The agency has argued that this is only about Farook's iPhone, but Cook and cybersecurity experts say that creating the code to let the FBI break into this one phone could let make all iPhones vulnerable. What's more, Apple has said the judge's order could aid the FBI in opening iPhones around the country. "Law enforcement agents around the country have already said they have hundreds of iPhones they want Apple to unlock if the FBI wins this case," said a previous Apple statement.

It's not clear whether the method for breaking into Farook's phone would work on other models of the iPhone, which may run different versions of the phone's foundational software, iOS. If not, the Department of Justice may keep trying to get court orders in other law enforcement investigations that involve encrypted iPhones.

Ed McAndrew, a former federal cybercrimes prosecutor and now a Washington, D.C. -based lawyer at Ballard Spahr, said the issue is likely not decided, but that Apple might have less power to keep the FBI out of its customer's phones.

"The government is not saying they're going to stand down, they're not agreeing at this point that this case is moot," he said. "This suggests that Apple's participation may be diminished and that they may have less control of this process."

The government's move now leads to many questions, McAndrew added. "This has the potential to undermine the security of Apple's devices," he said. "Who is this outside party? A hacker? A cyber-forensic investigator? A security researcher?"

CNET's Ian Sherr, Terry Collins and Steven Musil contributed to this report.

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