Thanks to the skills of an unknown third party, the Department of
Justice was able to access data on the iPhone of one of the San
Bernardino shooters.
SAN FRANCISCO — Although the government officially withdrew from its
battle against Apple Monday, many observers sense the tech privacy war
is just getting started.
"This lawsuit may be over, but the
Constitutional and privacy questions it raised are not," Congressman
Darrell Issa (R-Calif.), who had criticized the Justice Department's
legal effort against Apple, said in a statement Monday.
The
Justice Department withdrew its legal action against Apple after
a method brought to the FBI earlier this month by an unidentified entity
allowed investigators to crack the security function without erasing
contents of the iPhone used by Syed Farook, who with his wife, Tashfeen
Malik, carried out the December mass shooting in San Bernardino that
left 14 dead.
The government maintained it was looking for access
to one phone, but Apple countered that asking for a code that could
access the iPhone 5c would create a backdoor to all such devices that
was exploitable by other entities.
"This case should never have
been brought," Apple said in a statement released late Monday. "We will
continue to help law enforcement with their investigations, as we have
done all along, and we will continue to increase the security of our
products as the threats and attacks on our data become more frequent and
more sophisticated. ... This case raised issues which deserve a
national conversation about our civil liberties, and our collective
security and privacy."
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In its two-page filing in a California magistrate's court, the
government noted that due to outside assistance it "no longer requires
the assistance from Apple Inc." Justice spokeswoman Melanie Newman said
the FBI is reviewing the contents of the phone as "consistent with
standard investigatory procedures," and that "we will continue to pursue
all available options for this mission, including seeking the
cooperation of manufacturers and relying upon the creativity of both the
public and private sectors."
Government law enforcement
officials have denied charges the FBI wanted to establish a backdoor to
Apple's encryption, and swatted away accusations that they were using
the case to gain broader access to consumers' devices.
"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,''
FBI Director James Comey wrote in an editorial last week.
The FBI
has about a dozen similar cases pending in which it wants access to
smartphone information to assist with a case. So while this particular
showdown may be over, "there are other cases pending where law
enforcement relies on the All Writs Act" to access tech gadget data,
referring to an old law that can compel companies to help the government
in pursuit of its duties, says Denelle Dixon-Thayer, Chief Legal and
Business Officer at Mozilla, the company behind the Firefox browser.
"This
question is clearly not going away just because the government has
withdrawn their request in this particular case," she says.
Mozilla and dozens of other tech companies that supported Apple with amicus briefs will be watching what happens next carefully.
Privacy
issues have both societal and financial implications. Given the
ubiquity of smartphones and tablets, concerns loom about how rogue
regimes could leverage back doors into tech products to go after
detractors. Companies like Apple, whose brand identity is anchored to
data security, could face declining sales if smartphones and tablets
prove hackable.
All that is counterbalanced by the need for public
security in an age when terrorists use encrypted smartphone
communication to secretly plot devastating attacks such as the recent
suicide missions in Brussels and Paris.
Justice officials declined
to comment on whether the technique used to unlock the phone would be
applied to other encrypted devices. Authorities also refused comment on
whether the method would be shared with Apple.
Apple officials said on a call with reporters last week that if the
iPhone in question was accessed, the company would want to know how so
it can improve its encryption techniques. Declining to turn over such
details to Apple engineers would "leave ordinary users at risk from
malicious third parties who also may use the vulnerability," says Steve
Crocker, staff attorney for the Electronic Frontier Foundation.
Monday's
action concludes six weeks of building tensions between the government
and the the Silicon Valley i-product giant. The FBI insisted for weeks
that only Apple could crack the contents of Farook's iPhone. Apple said
such an action amounted to a digital "backdoor" that could eventually
undermine the privacy of consumers — an unwavering stance supported by
Google, Facebook, Microsoft and other tech giants.
The foes were
poised to face off in a court room in Riverside, Calif., last week
before the Justice Department abruptly asked for — and was granted — a
postponement.
Apple CEO Tim Cook has crusaded in a highly
coordinated public campaign against the dangers of weakened security in
digital devices. This month, Apple said the “Founding Fathers would be
appalled” because the government’s order to unlock the iPhone was based
on what it said was non-existent authority asserted by the DOJ.
California
U.S. Attorney Eileen Decker said federal authorities had pursued the
litigation to “fulfill a solemn commitment to the victims of the San
Bernardino shooting — that we will not rest until we have fully pursued
every investigative lead related to the vicious attack.’’
Alex
Abdo, staff attorney for the American Civil Liberties Union, called the
government’s “unprecedented power-grab” a threat to everyone’s security
and privacy.
“Unfortunately, (Monday's) news appears to be just a
delay of an inevitable fight over whether the FBI can force Apple to
undermine the security of its own products,” Abdo said in a statement
late Monday. “We would all be more secure if the government ended this
reckless effort.”
Marco della Cava and Jon Swartz reported from San Francisco, Johnson from Washington, D.C.
