1,000 locked devices in limbo after FBI quits iPhone case

The legal fight pitting the Obama administration against Apple ended unexpectedly after the FBI said it used a mysterious method without Apple's help to hack into a California mass shooter's iPhone

SAN FRANCISCO – The government’s surprise decision to withdraw its case against Apple over the San Bernardino killer's iPhone  adds uncertainty to criminal cases where state and local authorities have been confronted with more than 1,000 locked smartphones and other devices, blocking access to potential evidence, according to a survey of more than a dozen jurisdictions.

These locked devices are separate from the most high profile one: the iPhone used by Syed Farook, who with his wife, Tashfeen Malik, carried out the December mass shooting in San Bernardino that left 14 dead. In mid February, a California court had ordered Apple to aid the FBI in sidestepping the security function of that iPhone, an action resisted by Apple out of concerns creating new software would make all iPhones more vulnerable.

Monday afternoon the FBI announced it had been able to unlock the iPhone without Apple’s aid and did not need to move forward with its case. Magistrate Judge Sheri Pym vacated her Feb. 16 order on Tuesday afternoon.

Left unanswered is what Justice’s abandoned legal action means for the many other law enforcement agencies seeking assistance in unlocking encrypted iPhones, iPads and encrypted devices from other manufacturers.

“We were hoping this decision, which could have gone to the Supreme Court, would have been a road map and now it’s not,” said Stewart Baker, a partner in the Washington office of Steptoe & Johnson.

State and local investigators have been blocked from accessing the contents of the more than 1,000 devices because of their inability to bypass security functions similar to those encountered by the FBI in the San Bernardino case. Some of the local cases have been resolved even though possible evidence on the locked devices remained out of investigators' reach.

“Investigators have just thrown up their hands in many cases, because they know that encryption has put potentially key evidence beyond their reach”

NYPD spokesman Peter Donald

The data, gathered in part from queries by Manhattan District Attorney Cyrus Vance, indicate one of the largest number of locked phones seized in connection with criminal investigations has been amassed in New York. Vance has accumulated more than 200 blocked devices while the New York Police Department estimated that there are an additional “hundreds’’ in its possession.

Officials expect the number of cases in which law enforcement seeks to force Apple to assist it overriding its devices' built-in security to increase.

In Manhattan alone, Vance’s office says the number of criminal investigations where it has been unable to get data from Apple devices has risen to 205, out of a total 734 Apple devices received by the cyber lab for this borough of New York City between Oct. 2014 and Feb. 2016.

Vance told Congress last month he expects the number of cases in his office to rise dramatically because 94% of Apple devices feature the iOS 8 operating system or higher. Other local prosecutors face similar challenges, he testified.

“The overwhelming majority of criminal investigations stalled by default device encryption will remain so until Congress intervenes,” Vance said in a statement Tuesday.

In a statement on Monday, Apple said it would “continue to help law enforcement with their investigations, as we have done all along, and we will continue to increase the security of our products as the threats and attacks on our data become more frequent and more sophisticated.”