Yesterday, the government made a surprising retreat in the San Bernardino encryption case, after an unnamed source revealed a new method of breaking iPhone lockscreen protections. After a hastily assembled conference call, the parties agreed to put the court order on hold until it could be determined whether Apple's help was still necessary.
But excerpts from a court transcript of that proceeding, published here for the first time, show the government was far less prepared for the new method than some have assumed. "We only learned about this possibility today, this morning," Assistant US Attorney Tracy Wilkison told the judge in the conference call. "We have a good faith basis at this point in order to bring it up." That timeline is consistent with recent court filings, which show the first successful demonstration of the method coming that Sunday.
The transcript also shows both confidence and uncertainty over whether the new method will work. "There have been a lot of people who have reached out to us during this litigation with proposed alternate methods, and one by one they have failed for one reason or the other," Wilkison says. "At this point we have, at least, a good faith basis that it will work. The problem is we don't know for sure." As a result of that uncertainty, the government argued to stay the initial order rather than vacate it, a request that was subsequently granted by the court.
The initial argument comes from Apple's Ted Boutros, requesting a complete dismissal of the order:
We have had a chance now to think this for about an hour, and we, obviously, defer to how the Court would like to proceed. We would not object to the hearing being postponed and moved because — and we request that the Court vacate the order that was entered ex parte. If the Court will recall, in the order — in the ex parte application the Government represented that the assistance sought could only be provided by Apple. And Agent Pluhar's declaration at paragraph 4 said that — testified that he'd explored other means, and the Government had been unable to identify any other methods feasible for gaining access. So the order was based on good cause. And we, respectfully, submit that there no longer is good cause.
The relevant rebuttal from Wilkison is reproduced in full below:
Your Honor, the Government's number one priority throughout this entire investigation has always been to gain access into the phone and we sought as a matter of necessity and not of choice. That said, we have been working tirelessly during this entire time to see if there's another way to do this, but I don't think we're there yet. We only learned about this possibility today, this morning, about this possibility that Apple is not necessary. And we have a good faith basis at this point in order to bring it up. There have been a lot of people who have reached out to us during this litigation with proposed alternate methods, and one by one they have failed for one reason or the other. And we haven't, you know, — there's just no reason to go into those.
But at this point we have, at least, a good faith basis that it will work. The problem is we don't know for sure. And while — if it's validated, the Court could then vacate the order. I think we are really premature to vacate the Court's order at this point because there's also the possibility that it will not work. I think we should just give the experts the time that they need to test it and let us report back to the court.