FBI director says fight with Apple about terrorism, not setting precedent

FBI Director James Comey is defending the agency's battle with Apple, saying it is about fighting terrorism and not about setting legal precedent.

The director's comments, published Wednesday afternoon in the letters section of the Wall Street Journal, come amid a slew of attacks against the agency for its handling of what is arguably the biggest legal showdown in modern tech history. The verbal assaults on the FBI are coming from the blogosphere, the rank-and-file public, and even the WSJ itself. The arguments essentially boil down to assertions that the FBI lied when stating that it could not open the iPhone used by San Bernardino terrorist Syed Farook and that it wanted a court of law to compel Apple's assistance in order to set a legal precedent. Because Congress won't adopt crypto-backdoor legislation or laws requiring companies like Apple to write code that undermines their own security, the argument goes, the FBI concocted a legal strategy to get the courts to do what lawmakers won't.

Comey emphatically denied this idea and repeated that the FBI did not have the ability to access Farook's phone. Instead, he said that the FBI decided to tentatively retreat once it was presented with a possible viable solution—which happened to come on Monday, just one day before the court hearing.

"You are simply wrong to assert that the FBI and the Justice Department lied about our ability to access the San Bernardino killer’s phone," Comey said, referring to the WSJ opinion piece.

A key nugget of that unsigned WSJ opinion said this:

This twist with double somersault is especially notable because DOJ has insisted for months that “the undisputed evidence is that the FBI cannot unlock Farook’s phone without Apple’s assistance,” as the department put it in a March 10 brief. The source code for the operating system is designed to reject programs that are not electronically “signed” by Apple, and thus “Apple alone” and “only Apple” can be commandeered, Justice argued.

The director countered:

I would have thought that you, as advocates of market forces, would realize the impact of the San Bernardino litigation. It stimulated creative people around the world to see what they might be able to do. And I’m not embarrassed to admit that all technical creativity does not reside in government. Lots of folks came to us with ideas. It looks like one of those ideas may work and that is a very good thing, because the San Bernardino case was not about trying to send a message or set a precedent; it was and is about fully investigating a terrorist attack.

The director's comments also echo what government prosecutors told Magistrate Sheri Pym, the judge presiding over the case. In a telephonic, private court hearing that the press and the public were not granted access to, Assistant US Attorney Tracy Wilkison told Pym that the government had not given up hope that it could crack the phone without Apple's assistance. Wilkison's comments showed that while the government was saying that only Apple could perform the task, the feds were trying their best to get it done without Apple. As Wilkison said (PDF):

Your Honor, the Government's number one priority throughout this entire investigation has always been to gain access into the phone and we sought as a matter of necessity and not of choice. That said, we have been working tirelessly during this entire time to see if there's another way to do this, but I don't think we're there yet. We only learned about this possibility today, this morning, about this possibility that Apple is not necessary. And we have a good faith basis at this point in order to bring it up. There have been a lot of people who have reached out to us during this litigation with proposed alternate methods, and one by one they have failed for one reason or the other. And we haven't, you know—there's just no reason to go into those. But at this point we have, at least, a good faith basis that it will work. The problem is we don't know for sure. And while—if it's validated, the Court could then vacate the order.

We're not exactly sure what method Wilkison is referring to. According to reports on Wednesday, the bureau was apparently working with Israeli firm Cellebrite to potentially access the phone's contents via NAND mirroring.

The government must report back to Magistrate Pym by April 5 regarding whether it wants to resume the legal battle and ask Pym to enforce her order that Apple help the authorities unlock the phone used by Farook. Infamously, Farook and his wife killed 14 people at a San Bernardino County office on December 2. The Tuesday hearing that was cancelled at the 11th hour was Apple's first chance to convince the judge to reverse her order.