FBI Sinks Teeth Into Apple Over San Bernardino

Taking the San Bernardino case to the public is a huge escalation in the war over encryption at a time when Washington needs Silicon Valley to cooperate.

FBI Director James Comey escalated the fight between the U.S. government and Apple over the company’s refusal to help the feds extract data from the iPhone used by one of the San Bernardino terrorists.

The FBI is asking Apple to circumvent a feature that renders the phone’s contents inaccessible if someone incorrectly enters a password too many times. The bureau wants to try to break the code with a computer that can attempt millions of guesses rapidly. But Apple says building such a capability will undermine the security of all iPhones because the technology could be obtained by criminals.

“The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message. It is about the victims and justice,” Comey wrote Sunday in a post for the national security publication Lawfare. “Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law.”

Comey’s latest shot at Apple reiterated his position that the FBI was seeking access only to the shooter’s phone and didn’t have broader designs on circumventing the privacy and security features of Apple’s products.

Comey has never shied from chastising tech companies that he sees as endangering public safety by making products that law enforcement cannot search for evidence of crimes. In that respect, he was able to play the classic “bad cop” in a roiling debate over how to balance security and civil liberties that has proved politically awkward for the Obama administration.

In recent months, President Obama and his top national security officials have been trying to improve relations with Apple and other Silicon Valley firms, whose assistance in fighting terrorism they want, while the same companies grow increasingly wary of cooperating with surveillance operations that have targeted them and their customers.

In a meeting with top U.S. officials and tech executives in January, Apple CEO Tim Cook reportedly lashed out and warned the White House not to side with the FBI in pushing government “back doors” into commercial technology systems.

“The particular legal issue is actually quite narrow,” Comey wrote. “We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it. We don’t want to break anyone’s encryption or set a master key loose on the land. I hope thoughtful people will take the time to understand that.”

Ultimately, a federal judge in California will determine whether Apple must comply with the warrant she has authorized to search the iPhone (owned by San Bernardino County, which consented to the search). But Comey’s remarks made clear that law enforcement officials, who last week characterized Apple’s refusal to comply with the order as a marketing ploy (PDF), are equally prepared to make their case in the court of public opinion.

White House officials haven’t been as vocal as Comey on the San Bernardino dispute, though the administration does side with the FBI and the Justice Department’s position. White House spokesman Josh Earnest told reporters on Monday that Comey had framed the argument “eloquently” in his blog post.

“The case that we’re making is not that the FBI should determine what access they should have to that information. But it also shouldn’t be a private sector company that tries to sell stuff that decides that question,” Earnest said, in language that was almost identical to Comey’s.

But last week, Earnest was pressed on whether the FBI’s demands were inconsistent with the administration’s policy of not forcing companies to manufacture products in such a way that the government can always extract information from them. That debate reached a fever pitch over the use of encryption technology, which Apple uses on its newest iPhones, and that Comey has said frustrates law enforcement investigations.

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In a press briefing last Wednesday, Earnest stressed that the Justice Department wasn’t seeking a “backdoor” into Apple’s products, but he deferred to law enforcement officials as to the “merits of [the] arguments and why the Department of Justice has concluded that that’s important…”

A White House spokesperson on Monday declined to comment to The Daily Beast on Comey’s letter. A spokesperson for the FBI also declined to comment and to say whether the letter was the result of discussions among different agencies or if it reflected Comey’s views alone.

Comey has written on Lawfare previously about the debate over commercial encryption. The site is widely read by national security lawyers, policy officials, and experts.

For its part, Apple is also ratcheting up its public case against the government’s order.

In an email to employees on Monday morning, sent hours after Comey’s remarks were published, CEO Cook called on the Justice Department “to withdraw its demands” for Apple’s assistance and to “form a commission or other panel of experts on intelligence, technology, and civil liberties to discuss the implications for law enforcement, national security, privacy and personal freedoms. Apple would gladly participate in such an effort.” (The email was obtained by BuzzFeed and reprinted in its entirety.)

Obama created such a commission following leaks about classified surveillance operations by ex-National Security Agency contractor Edward Snowden. The administration accepted some of the commission’s recommendations but rejected others, including some that civil liberties advocates have said would enhance individual privacy and security by imposing new limits on government surveillance.

Cook said he’d received messages of support for the company’s position from “thousands of people in all 50 states.”

A new poll suggests that Apple might be on the losing side of the public argument, though.

A slim majority of Americans, 51 percent, said Apple should assist the FBI with extracting data from the phone, according to a survey by the Pew Research Center. Thirty-eight percent of respondents said the company should hold its ground and not help the authorities.

Pew found that the debate has also garnered considerable attention: 75 percent said they’d either heard a lot or a little about it.

A group of victims of the San Bernardino attacks have said they will file a legal brief in support of the government’s position.

“They were targeted by terrorists, and they need to know why, how this could happen,” the lawyer representing them said.