While so much of the attention had been focused on the case in San Bernardino, where the DOJ was looking to get into Syed Farook's iPhone, we've pointed out that perhaps the more interesting case was the parallel one in NY (which actually started last October
), where the magistrate judge James Orenstein rejected
the DOJ's use of the All Writs Act to try to force Apple to help unlock the iPhone of Jun Feng, a guy who had already pled guilty on drug charges, but who insisted he did not recall his passcode.
There were some oddities in the case. Feng had pled guilty and there was some issue over whether or not there was still a need to get into the iPhone. The DOJ insisted yes, because Feng's iPhone might provide necessary evidence to find others involved in the drug ring. The other oddity: Feng's iPhone was running iOS7. While the device itself was a newer model iPhone than the one in the Farook case, it still has an older operating system, where it was known that Apple (and others
) could easily get in. So it made no sense
that the FBI couldn't get into this phone. In fact, Apple's latest filing
in the case, just over a week ago was basically along those lines, noting that the DOJ claimed Apple's assistance was "necessary," but that seemed unlikely.
And... late on Friday, the DOJ did the exact same "run away!" move it did in the Farook case, telling the judge that it had suddenly been given the passcode
, so there was no need to move forward with the case at all.
The government respectfully submits this letter to update the Court and the
parties. 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. Accordingly, the government no longer needs Apple’s assistance to unlock the
iPhone, and withdraws its application.
According to a (paywalled) WSJ article, Feng, who has been waiting for his sentencing, and thinking that his case was otherwise over, only just found out that there was this big fuss around his own case... and told the DOJ he miraculously remembered the passcode
. Hallelujah. A miracle... and the DOJ was magically saved from a precedent it didn't want.
The Wall Street Journal reported last week that Mr. Feng only recently learned his phone had become an issue in a high-stakes legal fight between prosecutors and Apple. Mr. Feng, who has pleaded guilty and is due to be sentenced in the coming weeks, is the one who provided the passcode to investigators, according to people familiar with the matter.
Of course, it's worth noting, however that while this particular case may be effectively over, it's not that great for the DOJ, in that no one got to officially review magistrate judge James Orenstein's fairly epic smackdown
of the DOJ earlier in the case. That, of course, has no value as a precedent, but that doesn't mean it won't be quoted or pointed to in other, similar cases.
On the flip side, of course, there's the argument that every time the case starts looking bad for the DOJ, they miraculously get into the phone in question. At the very least, this ought to raise questions about why the DOJ keeps insisting that it needs Apple's help... But the fact is these cases are going to keep coming.