FBI and Apple vie for public support in dispute over California shooter's iPhone

http://www.theguardian.com/us-news/2016/feb/22/fbi-apple-san-bernardino-shooting-iphone

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The director of the FBI has pleaded for responsible dialogue and calm in an escalating public battle with Apple, even as the company’s chief executive, Tim Cook, vowed to continue a legal fight that carries widespread implications for digital privacy and law enforcement.

Related: Apple v FBI: engineers would be ashamed to break their own encryption

In a late Sunday op-ed for a national security blog, Lawfare, FBI director James Comey said he hoped “folks will take a deep breath and stop saying the world is ending”, even as he invoked the 14 people “slaughtered and many more [who] had their lives and bodies ruined” in the December terrorist attack in San Bernardino.

Comey’s missive was the latest attempt by law enforcement officials to publicly adjudicate its dispute over access to an iPhone used by the San Bernardino killer Syed Farook, and part of competing efforts by both the US government andApple to control public perception of the case.

Such efforts have not relented since 16 February, when the FBI persuaded federal magistrate judge Sheri Pym to order the company to unlock the iPhone 5C Farook used and Apple vowed resistance.

The editorial came as Tim Cook, Apple’s CEO, hit out against the FBI in an email to Apple employees. Cook reiterated his position: that the outcome of the dispute will be a defining moment in the struggle over encryption, cyber security and national security.

Cook, whom the US Department of Justice accused on Friday of privileging his company’s own marketing over security in an odd legal filing demanding compliance, called on the government to withdraw its demand that Apple write special code that will allow law enforcement officials to guess the iPhone’s password.

“At stake is the data security of hundreds of millions of law-abiding people and setting a dangerous precedent that threatens everyone’s civil liberties,” Cook said in an email to employees early on Monday, thanking them for protecting user data he said was “under siege”.

Setting a precedent

Since 2014, when Apple re-engineered its operating system to shut out even its own password-beating tools, Comey has crusaded publicly against what he has called the public-safety dangers of end-to-end mobile encryption.

On Sunday, he said the FBI was less concerned with “set[ting] a precedent” for future iPhone penetrations than with ensuring it ran down every available lead in the San Bernardino killings.

Comey was careful to say that anything Apple makes that could break into an iPhone 5C would be completely obsolete before very long, given additional security features on later models.

“We don’t want to break anyone’s encryption or set a master key loose on the land,” he wrote.

Apple has said such software would work, although perhaps not as well, on later models.

Others in law enforcement are eager to see precedent set. Manhattan district attorney Cyrus Vance told Charlie Rose he “absolutely” wanted Apple to provide the same service to his office if it lost the court battle with the Department of Justice.

“I’m asking Apple to return to September 2014,” Vance said.

Amid questions about the FBI’s decision to make the terrorism case central to its legal battle on encryption, Comey conceded he did not know what if any data relevant to the case the FBI would be able to extract from the iPhone used by Farook. The bureau has access to the related iCloud account – to which Apple retains the decryption keys – but the phone ceased back-ups to iCloud weeks before the attack.

“Maybe the phone holds the clue to finding more terrorists,” Comey wrote for Lawfare, an influential blog that lawyers and journalists use to follow emergent and legally complex national security debates. “Maybe it doesn’t. But we can’t look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead.”

In filings, the Department of Justice has said it is primarily interested in hunting for any additional co-conspirators and to see if any communications with the victims will shed light on the motivations of Farook and his wife, Tashfeen Malik, with whom he carried out the attack. It has conceded in filings that it already has phone metadata, indicating with whom Farook and Malik communicated.

While photos and chats through Apple’s iMessage client are likely to be on the phone, it is less certain that the FBI will be able to access any non-native communications applications on the phone, particularly if passwords were used to protect them. If they could, it would be through a very different process from the way Apple has provided information to law enforcement in the past.

Comey defended the bureau’s approach as “actually quite narrow”, since it does not ask a judge to undermine the encryption protocols used on iPhones and instead asks Apple to override a function allowing it to guess the lockscreen password.

Apple has hit back that compliance will render the distinction meaningless, as security agencies and local law enforcement will use any incident to demand similar action, effectively compelling Apple to undermine a security feature demanded by millions in the wake of Edward Snowden’s revelations of widespread digital surveillance.

Indeed, Vance told Rose he had 175 iPhones waiting for the outcome of this case.

“Since Apple changed its operating system in the fall of 2014 to re-engineer it so that phones could not be accessed even with a valid warrant,” he said, “there have been 175 cases in our office using the new operating system that we are not able to get in to look at phones which need to be analyzed to build criminal cases and indeed to make sure that we’re prosecuting the right person.”

Victims speak out

Related: FBI told San Bernardino County staff to tamper with gunman's Apple account

Farook and Malik destroyed two phones and the hard drive from a laptop computer before they murdered 14 people and wounded 22 at a holiday party on 2 December. The FBI is seeking access to a third phone, which was issued to Farook by his employers at the San Bernardino health department.

Reuters reported on Monday morning that some victims of the attack would take the FBI’s side in the dispute. The report came through the attorney Stephen Larson, a former federal judge who was asked by the Department of Justice and local prosecutors to represent the victims, prior to the dispute becoming public.

Larson told Reuters: “They were targeted by terrorists and they need to know why, how this could happen.”

He declined to say how many people he represents, but said he will file an amicus brief with the government by early March.

That phone may have been locked beyond Apple’s current ability to recover when the FBI told San Bernardino County officials to force a password reset to Farook’s iCloud, a service through which a user can sometimes force a locked phone to back up its contents. After the password reset, the phone can no longer be unlocked without Farook’s password.

Apple has said it is indeed concerned about the setting of precedent, particularly given the details of the Department of Justice motion, which seek to compel it to write and digitally sign a new piece of software. Apple has told justice department officials it lost the ability to break into its own phones with the rollout of iOS 8 in 2014.

Apple said it has the technical capability to follow the government’s order, but that would be “something we believe is too dangerous to do”.

Cook said if such a system were developed, the company would try to protect it from being released but it “would be relentlessly attacked by hackers and cybercriminals”.

And he went further: “The only way to guarantee such a powerful tool isn’t abused and doesn’t fall into the wrong hands is to never create it.”

Apple’s formal legal filing in the case is due on 26 February. Congress, which has thus far balked at undermining encryption through new laws and penalties, is seeking intervention as well, with two committees notifying Apple and the FBI of their intent to hold hearings featuring testimony from both sides. The first is scheduled for 1 March, in the House judiciary committee.

The tension between privacy and security, Comey wrote on Sunday, “should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before”.