FBI’s Retreat Doesn’t Mean Its War With Apple Is Over

March 29, 2016 – In The News

Scott L. Vernick was quoted in the Mashable article, “FBI's Retreat Doesn't Mean Its War With Apple Is Over.” Full text can be found in the March 29, 2016, issue, but a synopsis is below.

While the FBI dropped its efforts to have a judge compel Apple to help it hack the San Bernardino terrorist’s iPhone, Apple still finds itself facing orders to assist authorities in unlocking devices in 14 other cases.

The showdown in the San Bernardino case may have ended, but it could still affect those other cases, attorneys said.

“That question is still ongoing,” said Scott L. Vernick, a noted privacy attorney. It's just now, the government has managed to “kick the can sufficiently so that it can fight another day.”

Vernick said it wasn’t clear to him that the government would prevail in the case in California, especially in light of U.S. Magistrate Judge James Orenstein’s ruling in Apple’s favor in a similar case in New York City.

By not moving forward with the case, the government doesn’t have a bad precedent working against it for future cases.

“Maybe it's just the cynic in me or just confluence, but this all works out neatly for the government,” Vernick said.

But it may still be difficult for the government in other All Writs Act cases to argue that only Apple can provide access to a locked iPhone, Vernick said.

While one of the government’s central arguments was that only Apple could hack the device, the FBI was able to get into the phone without the help of the company.

That could be an issue for prosecutors in other cases, Vernick said.

“The next time [the government] makes this argument, the federal magistrate is going to ask ‘really?,’” he said.

But could Apple ask the government to detail how it was able to get into the device?

“They could, sure — now ask me if I think they'll be successful?” Vernick said. “Yes, as a practical method and in theory, you can try to get the government to do that. You can try. But it probably won't work because the government will classify the method as a matter of national security.”

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This article was also featured in the Tri-County Sun Times.