Update: Attorney General William Barr ratcheted up the standoff when, according to the New York Times, he declared the shooting an act of terrorism. Barr issued an extraordinarily high-profile call for Apple to provide access to the gunman’s two iPhones. He also said that to date Apple has provided no “substantive assistance” in doing so. The development further suggests that the 2016 high-stakes clash pitting privacy against national security are likely to play out again. What follows is the article as it appeared from 1/7/2020:
In a move that may signal another high-stakes clash over encryption, the FBI is asking Apple for help decrypting two iPhones believed to have belonged to Mohammed Saeed Alshamrani, the man suspected of carrying out a shooting attack that killed three people last month at the Naval Air Station in Pensacola, Florida.
The request came in a letter FBI General Counsel Dana Boente sent to his counterpart at Apple on Monday, NBC News reported. Boente said that, although FBI investigators obtained a search warrant to examine the phones, investigators have been unable to guess the passcodes needed to unlock them and decrypt their contents. Complicating matters, 21-year-old Alshamrani fired a round into one of the phones. A second lieutenant in the Saudi Royal Air Force, Alshamrani died in the December 6 shooting. An FBI spokeswoman confirmed the sending of the letter but declined to describe its contents, citing an ongoing investigation.
In a statement, Apple officials wrote: “We have the greatest respect for law enforcement and have always worked cooperatively to help in their investigations. When the FBI requested information from us relating to this case a month ago, we gave them all of the data in our possession, and we will continue to support them with the data we have available.”
Company representatives didn’t say whether Apple would comply with the government’s request.
A new standoff?
The letter and Apple’s response may be the first steps in reviving a national standoff over encryption and the responsibilities technology companies face in helping law enforcement bypass it in their products. In 2016, the FBI obtained a court order requiring Apple to help unlock and decrypt the iPhone used by Syed Rizwan Farook, who killed 14 people and injured 17 others in a 2015 shooting rampage in San Bernardino, California.
Specifically, the FBI wanted Apple to create a custom firmware version that would bypass a protection that wipes an iPhone clean after 10 failed attempts to enter a passcode. In court documents and congressional testimony, FBI officials said they had no other way to access the contents of the iPhone so that investigators could determine if Farook and his wife (who also participated and died in the shooting) acted in concert with others to carry out the deadly attack. The government invoked an 18th-century law called the All Writs in seeking Apple’s assistance.
Apple vigorously resisted the FBI request. In a spirited letter to Apple customers, company CEO Tim Cook warned that once the backdoor was created, it would pose a threat to all iPhone users. Cook argued that if Apple was compelled to bypass the protections on the shooter’s iPhone, it would set a dangerous precedent that would undermine the privacy and security of people everywhere.
“The government suggests this tool could only be used once, on one phone,” he wrote. “But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices.”
The dispute was resolved six weeks after the government obtained the order when government lawyers dropped the case and reported that FBI investigators had decrypted Farook’s iPhone 5C and no longer needed Apple’s help. Then FBI Director James Comey later suggested that the agency paid more than $1.3 million to an unnamed company to crack the phone’s encryption.
Critics of the government request said the FBI reversal bolstered their argument that the extraordinary assistance investigators sought was unnecessary because they had other less-intrusive means to decrypt the contents of the phone. The US Justice Department’s Office of the Inspector General later concluded that FBI personnel failed to exhaust all of the remedies available in unlocking Farook’s iPhone.
“We believe [the FBI’s Cryptologic and Electronics Analysis Unit] should have checked with [Operational Technology Division’s] trusted vendors for possible solutions before advising OTD management, FBI leadership, or the [US Attorney’s Office] that there was no other technical alternative and that compelling Apple’s assistance was necessary to search the Farook iPhone,” the report stated.
In the three years since the standoff played out, both sides have further intensified their positions. Apple has strengthened the encryption in its phones, while Attorney General William Barr has renewed the push for backdoors and escalated complaints that encryption is hampering legitimate law enforcement investigations.
So far, the government has given no indication it plans to seek an order compelling Apple to defeat security protections in Alshamrani’s device. But the request, and Apple’s response, are both prerequisites before such an order could be obtained.