If at first you don't succeed, pry, pry again: Feds once again demand Apple unlock encrypted iPhones in yet another terrorism case

FBI, open up!

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Comment The FBI has asked Apple to unlock two iPhones belonging to a murderer, potentially reviving a tense battle over encryption and the rights of law enforcement to digital devices.

Mohammed Saeed Alshamrani, of the Saudi Royal Air Force, shot and killed three people and injured eight others at a US naval base in Pensacola, Florida, in December before he was shot himself. He died at the scene.

Alshamrani had two iPhones – one of which he reportedly shot and damaged – and the FBI has been trying to unlock the phones and extract the encrypted contents to see if there is any evidence that others were involved in the attack, or other clues to his actions. As such, the bureau has asked Apple to provide it with as much information as it can.

The request came in the form of a letter from the FBI’s general counsel Dana Boente, and was sent to Apple’s top lawyer on Monday. It has not been published though its contents were relayed to journalists, who have reported that the FBI has been unable to log into the unidentified phones since they are locked and encrypted.

The letter notes the FBI has obtained a search warrant to examine the phone, and has tried to unlock it, asking other government agencies and third-party companies for help, though it has been unable to access the device and so asks for Apple’s assistance in extracting the data within.

While that may all seem perfectly normal and above board, the fact that the letter has been written at all has left many wondering whether there is a hidden strategy behind the request.

Famously, the FBI and Apple ended up in a tense stalemate over the contents of another shooter’s iPhone – that of San Bernardino terrorist Syed Farook in 2015 – in which the iGiant said it had no way to access the contents of the encrypted locked phone, and the FBI asked a judge to force Apple to find a way in. Apple argued that to do so it would have to somehow break its own strong encryption, and that raised legal issues.

Cook fried

Apple CEO Tim Cook put his neck on the line by publicly stating that Apple would not do so, and ultimately the Feds backed down by claiming they had found a third-party that could access the phone. Since then, the issue has periodically resurfaced with the FBI, and most recently Attorney General William Barr arguing that some kind of legal remedy needs to be created that would allow law enforcement to access encrypted phones.

As such, the fact that the FBI has sent another letter asking for access – even though it knows the response it will get – and has been willing to discuss the letter’s contents points to some kind of strategic effort.

As such, the question becomes: what is different in this case to the one in 2015? And the answer to that is four things:

  1. The shooting happened in Florida, rather than California, which may bring different legal issues to bear, most notably when a court in the Sunshine State in 2017 ruled that suspected criminals can be forced to hand over their smartphone passcodes to investigators.
  2. The Attorney General has made it plain he believes there should be a legal mechanism to allow law enforcement to access the contents of phones.
  3. Apple CEO Tim Apple Cook has gone out of his way to make nice with President Donald Trump in recent months.
  4. The FBI claims that it has exhausted all other possibilities to accessing the data on the phone prior to asking Apple for access

Clean sheet

The last point may be critical because in a special inquiry report by the US Department of Justice's internal inspector general into the battle between the FBI and Apple over the San Bernardino shooter’s phone – published in March 2018 – the watchdog noted that the FBI “did not pursue all possible avenues in the search for a solution” before contacting Apple.

The report also flagged a number of other internal issues including that “not everyone within OTD [the FBI’s Operational Technical Division] was on the same page in the search for a technical solution to the Farook iPhone problem, including varying testimony from OTD managers on whether there was a dividing line discouraging collaboration between the units that predominantly do criminal and national security work in OTD.”

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As such, it is possible that this latest FBI letter to Apple over Alshamrani’s iPhone is a way of putting in a formal request that ticks all the boxes, with none of the messy issues that were identified in the inspector general report.

In other words, it is a way for the FBI to get to a clean legal position. If Apple then refuses to provide access to the phones – which is highly likely – the Feds are in the best possible position for a potential legal challenge.

With the Attorney General making it plain he supports a legal right for cops and g-men to access encrypted devices, and with Apple CEO Cook going out of his way not to upset the Trump administration, the FBI may well feel that its letter represents a possible crowbar that it could use to crack open the encryption debate.

We don’t yet know. But the FBI's general counsel doesn’t write letters just for the hell of it. Something’s afoot.

As for Apple, its formal response so far has been the following: “We have the greatest respect for law enforcement and have always worked cooperatively to help in their investigations. When the FBI requested information from us relating to this case a month ago, we gave them all of the data in our possession and we will continue to support them with the data we have available.” ®

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