The FBI was holding the legal equivalent of a pair of twos and it knew the law was not on its side—sort of ironic for a law enforcement agency. Taking a page out of the Kenny Rogers book of knowing when to hold ‘em and knowing when to fold ‘em, the FBI wisely backed down and found another way.
Call me a cynic, but I am not convinced that the FBI actually even hacked the device. Or, if it did I believe it knew all along that it could do it, but was hoping to take advantage of this opportunity to establish a legal precedent it could use to compel private corporations to cooperate in future investigations. I think the FBI conveniently “found a way” to hack the iPhone because it didn’t want to be publicly humiliated in court.
An ABC News report states, “An urgent meeting inside FBI headquarters little more than a week ago is what convinced federal law enforcement officials that they may be able to abandon a brewing legal fight with tech giant Apple, sources told ABC News today.”
The report goes on to suggest that countless companies and hackers stepped forward to offer assistance to the FBI, but some were just total whackos and none of the solutions seemed viable. Then a mystery company appeared with a possible method of accessing the iPhone.
“On Sunday, March 20, in a meeting at FBI headquarters, company officials demonstrated their technology on another iPhone. Convinced it would work, the FBI greenlighted applying it to Farook’s phone, sources said.”
I spoke last week with Richard Clarke, former National Coordinator for Security, Infrastructure Protection and Counter-terrorism for the United States. He shared his belief that this entire charade was all about the FBI seeking a legal precedent—a precedent for forcing a company to weaken the data security of its product. Clarke said such a precedent would strengthen the case for an encryption backdoor.
From that perspective, it may actually have been beneficial for the FBI to go to court and lose. If it could demonstrate publicly that it has no legal standing to compel Apple to cooperate by writing a custom version of iOS, it might have galvanized support for mandating some sort of encryption back door to prevent similar conflicts in the future.
By magically finding a way to hack the unhackable iPhone, the FBI has undermined any argument it may have had either with the All Writs Act or an encryption back door. If the FBI can just hire hackers to access devices in these cases, we don’t need to bother with legal precedent or compelling private companies to build encryption back doors.
I don’t mean to suggest in any way that I don’t think the iPhone is hackable. Despite Apple’s reputation for superior security, there is no such thing as an impenetrable device and I’m confident there’s more than one way to access an “unhackable” iPhone. I’m simply stating that I find the timing of the FBI revelation the day before it was going to lose in court as both convenient and suspicious.
Clarke suggested that FBI did not really look around for another solution until the negative publicity began. It’s possible the FBI was confident that public opinion would be on its side and that this would be the perfect case to establish a legal precedent. Once the FBI analyzed the situation and realized that Apple might win on appeal, it scrambled for an alternative.
Clarke told me, “I think they realized they were playing a losing hand.” He also expressed that FBI Director James Comey is not being well advised, and is overly relying on his Special Agents for advice.
The whole circus was a mistake in my opinion. The FBI—and government intelligence and law enforcement agencies in general—are much better served by working in stealth when it comes to something like this. Had the FBI succeeded in compelling Apple to weaken its own security, it would have also succeeded in convincing would-be terrorists and criminals to avoid using iPhones. By announcing to the world that it has found a way to hack the iPhone, it has accomplished that same goal. It would have made more sense to figure out how to hack the iPhone in secret so that the bad guys the FBI wants to monitor and investigate aren’t aware that the FBI has that capability.
The whole thing seems more like an episode of Get Smart than something I would expect from some of the smartest minds in intelligence.