- Comey says U.S. not looking to send message with court order
- Apple says FBI seeks `dangerous power' in bid to unlock iPhone
Unlocking a terrorist’s iPhone may help investigators solve a mystery from last year’s deadly mass shooting in California: the attackers’ whereabouts for 18 minutes after they began their rampage at a holiday party, FBI Director James Comey said.
Yet that answer will remain out of reach, as Apple Inc. continues to fight a federal judge’s order to help investigators open the iPhone used by one of the assailants. On Thursday, the company asked the judge to set aside the order, saying the government was overstepping its bounds.
An hour before Apple responded to the court, Comey stressed that the FBI simply wants to see the contents of phone, which was recovered in a Black Lexus owned by the attackers, Syed Rizwan Farook and his wife, Tashfeen Malik. Despite scouring security cameras and interviewing witnesses, FBI agents have not be able to determine the attackers’ location before they were spotted by police in a rented SUV, chased by police and slain in a gun-battle.
“The answer to that may on the device,” Comey told members of a House appropriations subcommittee.
The FBI and Apple are engaged in a heated courtroom fight over a judge’s order that the Cupertino, California-based company assist federal investigators in unlocking the encrypted device. Comey said agents would be remiss if they didn’t try to take every step possible to access the smartphone, though he conceded the case’s outcome may have precedent-setting consequences.
“Whatever the judge’s decision is in California, it will be appealed and it will be instructive for other courts,” Comey testified earlier Thursday before the House Intelligence Committee. “There may well be other cases that involve the same kind of phone and same kind of operating system.”
The dispute between Apple and the Justice Department is part of a larger debate within Congress, the administration and the technology industry about whether law enforcement and intelligence agencies should be able to access encrypted communications.
The Federal Bureau of Investigation served Apple with a court order on Feb. 16 requiring the company to write a new software program to unlock the phone used Farook in the shooting spree in December. Farook and his wife shot to death 14 workers before the couple was killed by police. The FBI wants to know where they had been and who helped them.
Apple has been refusing to cooperate since the judge issued the initial order on Feb. 16. Apple’s chief executive Tim Cook has protested the order, saying the software doesn’t exist and that creating it would potentially put billions of iPhones at risk of being hacked or spied on by governments.
In its filing Thursday, the company accused the FBI of “seeking through the courts a dangerous power that Congress and the American people have withheld; the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe.”
In an interview aired Wednesday on ABC’s "World News," Cook said that while public safety is important, complying with the court order would set a precedent that would offend many Americans. He disputed the government’s contention that the impact of the demand is limited.
“The only way to get information, at least currently the only way we know, is to write a piece of software that we view as sort of the software equivalent of cancer," Cook said.
In its filing, the company called developing the software an “undue burden” that would involve as many as 10 company engineers and employees, working for as long as a month. It said the U.S. doesn’t have the legal authority to force Apple to help the FBI.
Just before the company’s released its response, U.S. Representative David Jolly, a Florida Republican, said that “Apple’s leadership risks having blood on its hands” if it doesn’t cooperate with FBI and it is determined that critical information on the phone could have prevented a future attack.
“Tim Cook will have a hard time explaining that,” Jolly said during the appropriations subcommittee hearing.
Comey told lawmakers the company has been helpful and cooperative, even in the current dispute.
“There are no demons in this dispute,” he said. “We just got to a place where they were not willing to offer the relief that the government was seeking."
Comey said the FBI has taken steps to ensure that the software could not be used against other Apple products or other consumers. The software would be written specifically for the shooter’s phone and could not be used on others, the director said.
Apple would also retain custody of the software and even the device, and the FBI would simply send electronic signals to the phone to guess its password. If the phone unlocks, Comey said, Apple would alert the bureau, which would take custody of it.
Comey told the panel that he doesn’t think it’s a good idea to have “spaces immune to search warrants,” such as phones and other devices. He said the encryption issue was the “hardest question I have seen in government” and that he would like to see it resolved through negotiation.
Lawmakers acknowledged that the problem was a difficult one to address, let alone solve.
“The latest challenges the government has met in gaining access to an iPhone used by one of the San Bernardino terrorists is emblematic of the growing problem posed by encryption,” said Representative Devin Nunes of California, the Republican chairman of the intelligence committee.
Representative Adam Schiff of California, the panel’s top Democrat, pressed Comey on the ramifications of the FBI’s efforts to compel Apple to help agents get into the phone.
“Is there a limiting principal here?” Schiff asked. “Is there a way through negotiation that we can arrive at a case where it’s appropriate to seek this relief and cases where it’s not.”
While acknowledging that the case may influence future decisions by judges, Comey said that was not the FBI’s goal.
“The San Bernardino litigation is not about us trying to send a message or establish some precedent,” he said, adding that the FBI simply wanted to conduct “a competent investigation.”