FBI ends second iPhone fight after someone, um, 'remembers' the PIN

Feds backing away from effort to set legal precedent

For the second time, the FBI has dropped a legal attempt to force Apple to unlock an iPhone at the last minute.

Earlier this month, the FBI backed away from the high-profile San Bernardino case the day before it was due in court by claiming it had paid a third party (apparently $1.2m) to unlock the phone.

This time it's a case in Brooklyn, New York, and the FBI sent a single-page letter [PDF] claiming that someone had given them the code just days before the Feds were due in court to argue their case.

"Yesterday evening, an individual provided the passcode to the iPhone at issue in this case. Late last night, the government used that passcode by hand and gained access to the iPhone," says the letter. "Accordingly, the government no longer needs Apple's assistance to unlock the iPhone, and withdraws its application."

The letter does not state who the individual is, although it was almost certainly the owner of the phone – drug dealer Jun Feng. Feng had previously told the court he could not remember the code.

In an almost identical strategy to the San Bernardino case, the FBI applied to the court under the All Writs Act claiming that it gave it the authority to force Apple to find a way to unlock the phone.

1-1 or is it 2-0?

In the San Bernardino case, the application was approved, prompting Apple to refuse to comply with it, and that led to an explosive public fight between the two that has generated a nationwide discussion about encryption and access to electronic devices.

In the Brooklyn case, magistrate judge James Orenstein decided that the FBI did not have the authority to demand that Apple assist it, and wrote a damning opinion that argued: "The implications of the government's position are so far-reaching – both in terms of what it would allow today and what it implies about Congressional intent in 1789 – as to produce impermissibly absurd results." The FBI appealed the decision.

Feng has since pled guilty to drug dealing and is due to be sentenced. Why he suddenly remembered the code to his phone is unclear, but given the spotlight on the issue and the fact that the FBI is backing away from its effort to set a legal precedent, it's fair to assume that Feng's attorney saw an opportunity prior to sentencing to gain a little leverage.

By withdrawing its appeal to judge Orenstein's decision by claiming the issue is now moot, the FBI does not formally lose its All Writs Act argument, but the judgment will still stand, as the San Bernardino decision stands.

With Apple taking a fierce public stance on the issue, with public opinion split, with Washington criticizing the FBI's approach, and with Congress indicating that it is prepared to get sucked into the issue, the FBI has clearly decided the best thing to do right now is get out the spotlight and work on a different strategy. ®

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