There’s no question that Apple’s ongoing legal dispute with the FBI has brought a myriad of complex legal, security, and policy issues to the forefront. But if we put those serious issues aside for just a moment, one of the more interesting aspects of the case, I think, is that the FBI even needed Apple’s help in the first place.
Especially given how pervasive and advanced the NSA’s surveillance and hacking techniques were even just a few years ago, many people, including myself, were of the opinion that government agencies, from the FBI to the CIA, likely had the technical expertise to effectively hack into any device and monitor anyone, anywhere.
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That being the case, it always struck me as odd and somewhat surprising that the FBI didn’t already have a way to bypass the iPhone’s passcode security scheme given that it’s been in existence for years now. After all, the iPhone involved in the San Bernardino shooting was an iPhone 5c, which is to say that there’s no Secure Enclave or Touch ID to hack around.
Is it really feasible that the FBI, for nearly a decade, hasn’t developed a means to break into a passcode protected iPhone, even if that iPhone was set up to erase itself after 10 incorrect passcode entries?
Assuming that that’s the reality we’re living in, are we also to believe that the NSA, which employs innumerable technical wizards and has no shortage of zero-day exploits (per Edward Snowden) is similarly unable to access the San Bernardino terrorist’s iPhone?
Perhaps I’m giving the NSA too much credit here, but one can almost imagine NSA engineers watching this saga unfold and smirking to themselves, armed with the knowledge that they’ve been able to bypass a data-protected iPhone for years.
All of that said, one of the more interesting aspects of Apple’s recently filed motion to vacate argues that the FBI may not have tried all possible avenues to hack into the shooter’s iPhone 5c.
In a section titled, “The Government Has Not Demonstrated Apple’s Assistance Was Necessary To Effectuating The Warrant”, Apple argues that there’s no evidence to suggest that the FBI sought assistance from other agencies (read: the NSA, the CIA) when it came to unlocking the iPhone in question.
A third party cannot be compelled to assist the government unless the government is authorized to act and the third party’s participation is imperative.
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Moreover, the government has not made any showing that it sought or received technical assistance from other federal agencies with expertise in digital forensics, which assistance might obviate the need to conscript Apple to create the back door it now seeks.
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As such, the government has not demonstrated that “there is no conceivable way” to extract data from the phone.
It’s an interesting argument that was even brought up, albeit quickly, during yesterday’s congressional hearing on mobile device encryption and the balance between American security and privacy.
During the course of the hearing, FBI director James Comey was asked if the FBI sought help from other intelligence agencies.
Later in the hearing, Comey was specifically asked if the FBI had talked to other government agencies, including the NSA. “Yes is the answer,” he said. “We’ve talked to anybody who will talk to us about it.”
When he was asked again whether other agencies could have helped them access the phone, he said Apple had effectively created phones that could not be broken into, which is why they had to resort to court action.
It’s hard to know exactly what’s being alluded to here and if Comey is being a bit coy.
So we know that the FBI sought out help from other intelligence agencies, but did those agencies agree to help? Did they refuse? Did they claim they lacked the technical know-how to hack into the iPhone? Is it at all possible that the NSA is keeping its iPhone hacking methods under wraps and told the FBI that there’s nothing they can do? And just when, exactly, did the FBI seek out assistance from the NSA?
More than likely, we’ll never find out the answers to these questions. In the meantime, it will certainly be fascinating to see how Apple’s legal tussle with the FBI plays out now that it’s captured the attention of lawmakers and citizens alike.
