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    Judge: Order to Compel Apple Has Been 'Unenforceable' All Along

    Written by

    Sarah Jeong

    Contributing Editor

    On Monday, less than 24 hours before the hearing was scheduled to start, the US government asked to cancel its big court date in the Apple vs FBI fight. The judge convened a quick conference with the Department of Justice and Apple attorneys. A transcript shows the judge repeatedly emphasizing that the order to compel Apple to create a backdoor for the government is “unenforceable” and has been so since the court battle began weeks ago.

    The March 22 hearing was set to be an all-out battle. Both sides planned to call witnesses, with one to two hours of live testimony expected in court. Lawyers for Apple said that the judge had set aside four to five hours total for the hearing. The court was clearly braced for a storm of media attention, with three overflow rooms set aside for spectators (a total of 324 seats, including the main courtroom), and with a special court order announcing a first-come, first-serve ticketing system (starting at 7 AM) reminiscent of Supreme Court practices, along with an advisory that the security line could only process 50 people per hour.

    But all this preparation was for naught, when the government moved for a continuance at the very last minute. Prosecutors said that an “outside party” (now thought to be an Israeli forensics firm) had “demonstrated to the FBI a possible method for unlocking Farook’s iPhone.”

    It’s hard to tell how the hearing-that-never-was would have actually gone. But on Tuesday, Cryptome published the transcript to the conference that happened right before the judge granted the government’s request to cancel the hearing. It shows the judge pushing back—gently—against the government, while the government backpedaled on the aggressive stance it had taken against Apple in its filings.

    Screenshot from the transcript.

    On February 16, Magistrate Judge Sheri Pym issued an order to compel Apple to assist the FBI in searching a work-issued iPhone belonging to Syed Rizwan Farook, the suspected shooter in the December 2015 San Bernardino attack. In order to access the contents of the phone, the FBI asked Apple for custom software that would disable certain security mechanisms, allowing the agency to brute-force the password. Apple has been fighting that court order. The company and the Department of Justice were set to argue their positions in court on March 22.

    Apple’s lawyers called into the March 21 conference, agreeing to the government’s request to cancel the hearing. But they also asked the judge to vacate the February 16 order. The order had been premised on the government’s claim that Apple was the only party that could help them access the phone—now that the DOJ had turned up this “outside party,” the order was invalid. The DOJ disagreed, saying that since the Justice Department wasn’t sure whether the method would work, it would be premature.

    While the judge sided with DOJ and left her February 16 order in place, she emphasized that “the order that was entered is unenforceable and is stayed.” The judge said that she was “struggling” to see the difference between vacating the February 16 order and leaving it in place, since the order had no legal effect for the time being.

    On March 1, in a hearing before the House Judiciary Committee, Rep. Trey Gowdy (R-SC) blasted Apple for flouting the law, by not complying with Magistrate Judge Pym’s order. The judge’s own remarks—while not directed at Gowdy—serve to rebutt him.

    “I certainly don't think, let me just comment, that Apple's been flouting the order,” said Magistrate Judge Pym in the meeting on March 21. “The order, essentially—it isn't—pending a final decision, there's not really—it's not in a stage that it could be enforced at this point.”

    The transcript also shows prosecutors backpedaling on some of the more hostile things they’ve said about Apple, claiming that they are “not saying anything nefarious about Apple.”

    Theodore Boutrous, one of the lawyers for Apple on this case, responded by quoting the government’s own filings back to them. “Just on page 2 of their reply and opposition brief they declare, ‘Apple's rhetoric is not only false, but is corrosive of the very institutions that are best able to safeguard our liberty and our rights.’”

    Screenshot from the transcript.

    While the DOJ canceled the court date ostensibly because an “outside party” had demonstrated a forensic technique at the last minute, the timing is still suspicious. The most likely forensic technique is one that experts have been discussing for weeks—in fact, Rep. Darrell Issa (R-CA) even mentioned it to FBI Director James Comey in the House Judiciary Committee hearing on March 1.

    Is the government retreating from the San Bernardino iPhone fight because its lawyers think the judge is likely to rule against them? It’s possible. After a flood of amicus briefs and unprecedented media attention on a magisterial proceeding, Judge Pym might be having second thoughts about the order she issued on February 16. If the hearing had gone poorly for the government, the DOJ would have lost face on a national stage. But the DOJ hasn’t fully backed out yet, and it still has an appeal in a similar case pending on the East Coast.

    The government is due to file a status report in the San Bernardino case in two weeks, on April 5. At that point, the initial order to compel Apple might be vacated, and the iPhone backdoor fight—at least on this front—will be over.