Encryption Fight: How Many Times Can The Government Cry Wolf?

In two high-profile cases now, the government has gone to court to force Apple to help break into a criminal's iPhone—only to abandon its legal effort at the eleventh hour before a crucial hearing or filing deadline. In the much-publicized San Bernardino (CA) case, the FBI announced it would abandon its cause because an unnamed third party had come forward with a way to crack the iPhone of gunman Syed Farook without Apple’s help. Then in a Brooklyn (NY) case, the Justice Department abandoned its request for a court order after Jun Feng, a convicted drug trafficker, provided his passcode when the feds asked him for it. Emily Pierce, a spokeswoman for the Justice Department, said the DOJ had asked Feng for the passcode much earlier and that he claimed to have forgotten it. The question is, now that the government has thrown in the towel in two cases, will it will try again in a new case in some other court? And if it does, will the judge believe that it has truly exhausted all other means and needs Apple’s assistance?

In both the San Bernardino and Brooklyn cases, the government insisted that Apple's help was the only way, and that turned out not to be true. Some believe we've seen the last of the government's All Writs Act tactic. "My best guess is that after yet another eleventh-hour reversal, DOJ won't bring another of these All Writs Act cases," says Andrew Crocker, an attorney with the Electronic Frontier Foundation. "Instead, I think we should expect to see even stronger efforts to pass some sort of anti-security bill in Congress—the sort of government access mandate we've seen in the Burr-Feinstein proposal."