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Posted on Tuesday, March 22, 2016

What Is the Real Reason the FBI Canceled the Apple Hearing?

The FBI canceled the March 22 court hearing scheduled to take place in California that was aiming to force Apple to create code for unlocking an iPhone.  The FBI suddenly changed course and notified the judge, and Apple, that an unknown source may be able to crack the security encryption feature on the San Bernadino terrorist’s iPhone, without Apple’s help.  If that holds true, the government’s case could be withdrawn in the next few weeks and this historic chapter in one of the biggest technology cases in the nation could conclude.

This news raises the question whether there was something else going on which motivated the government to avoid this fight with Apple.  An answer can probably be found in the briefs both sides recently filed with the court.  As those legal arguments evolved, the FBI’s case became weaker as Apple’s rebuttals became more targeted.  Perhaps the most powerful argument was raised when Apple pointed out there is a federal statute demonstrating that Congress did not want to give the government the authority to force a way to break cellphone encryption.  Apple pointed to the Communications Assistance for Law Enforcement Act (‘CALEA’), which requires telecom carriers to enable the government the means to wiretap telephone traffic for law enforcement purposes.  CALEA has an exception for phone manufacturers such as Apple (section 1002 of the Act), confirming that cellphone developers cannot be forced to design an encryption master key.  The FBI asked Congress in 2013 to change this feature of CALEA, but Congress refused.  Therefore, Apple has persuasively argued, there is a federal law directly on point which overtakes the government’s attempt to argue that the All Writs Act of 1789 (that’s right, 1789) somehow gives general authority to the contrary.

Faced with this stark disparity in legal positions, it is not surprising that the FBI ducked the hearing and is searching for another solution to avoid an adverse ruling.  This development also means that consumers’ protection of their personal information stored on cellphones just became more secure, at least for now.  This case may soon come to a close, while the tech battle continues to challenge industry programmers to somehow design more sophisticated safety features to safeguard informational privacy in an increasingly hostile environment.

Seth Berenzweig is a founding and managing partner of Berenzweig Leonard, and has discussed the FBI-Apple case on television, covering the legal issues impacting technology companies and individuals.

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