In announcing yesterday that Saudi shooter Mohammed Saeed Alshamrani – an aviation trainee who killed three U.S. service members and wounded eight at the Pensacola (Fla.) Naval Air Station in a mass shooting last month characterized as “jihad” – Attorney General William Barr said Apple Inc. has provided no “substantive” help in unlocking the late assailant’s two iPhones.
Apple disputes that claim.
The disagreement boils down to whether Apple is providing any useful information from Alshamrani’s data for the Justice Department investigation, or not.
“Within one day of the shooting, the FBI sought and received court authorization based on probable cause to search both phones in an effort to run down all leads and figure out with whom the shooter was communicating,” Barr explained, adding that the shooter damage both phones, one of them by shooting a round into it.
“Our experts at the FBI crime lab were able to fix both damaged phones so they are operational,” he continued. “However, both phones are engineered to make it virtually impossible to unlock them without the password. It is very important to know with whom and about what the shooter was communicating before he died.
“We have asked Apple for their help in unlocking the shooter’s iPhones. So far Apple has not given us any substantive assistance.”
Apple said in a statement that it has cooperated with the FBI from the beginning.
“We reject the characterization that Apple has not provided substantive assistance in the Pensacola investigation,” the statement said. “Our responses to their many requests since the attack have been timely, thorough and are ongoing.
“We responded to each request promptly, often within hours, sharing information with FBI offices in Jacksonville, Pensacola and New York. The queries resulted in many gigabytes of information that we turned over to investigators. In every instance, we responded with all of the information that we had.”
So, is Apple truly helping, or are these weasel words to give the appearance of compliance without actually providing investigators the material they need?
According to Barr, a judge authorized the FBI to“search both phones” – not iCloud accounts, not backup data, not transactions – which may or may not include information helpful to investigators, but is not what Barr says they want to access.
To make a comparison, often federal government agencies that don’t want to give up records in response to Freedom of Information Act requests ultimately end up delivering “document dumps,” in which they provide reams of data that bury potentially damning or incriminating evidence – but that the searchers must spend hours or days digging through to find out. In these cases much of the information supplied is redundant, excessive, or otherwise useless.
That’s not to say that’s what Apple is doing in the Pensacola situation, but what seems clear is that the company is not providing what the Justice Department asked for: access to the shooter’s phones. The company admitted as much, implying that providing law enforcement a way to break into phones sets a dangerous precedent and harms individuals’ privacy rights.
“We have always maintained there is no such thing as a backdoor just for the good guys,” the Apple statement said. “Backdoors can also be exploited by those who threaten our national security and the data security of our customers. Today, law enforcement has access to more data than ever before in history, so Americans do not have to choose between weakening encryption and solving investigations. We feel strongly encryption is vital to protecting our country and our users’ data.”
This is a legitimate concern, but does Apple have to show law enforcement how to break into phones? If a warrant to search a phone is authorized, can’t the company simply give access to the device without showing howit does so?
Apple has been down this road with the FBI before, when the agency sought access to an iPhone belonging to a mass shooter in San Bernardino, Calif. in 2015. The company did not aid in access to the phone, but investigators eventually were able to do so with help from an outside source.
“This situation perfectly illustrates why it is critical that investigators be able to get access to digital evidence once they have obtained a court order based on probable cause,” Barr said in his Pensacola statement. “We call on Apple and other technology companies to help us find a solution so that we can better protect the lives of Americans and prevent future attacks.”
Justice Department spokeswoman Kerri Kupec told the Los Angeles Times that Barr specifically meant Apple is not cooperating in accessing the shooter’s phones, and added, “They have yet to tell us whether they have the ability to get into the phones themselves.”
That’s hard to believe, that a company would create and build a product they don’t know inside and out, knowing how to take it apart and put it back together.
It might be less distasteful that Apple was so “principled” about users’ privacy if the company wasn’t so hypocritical when it comes to its business in China, where it has allowed customers’ data to be stored on servers controlled by the communist government.
But Apple seems to think the U.S. government is more of a threat than China’s. Considering how the Justice Department and FBI behaved in abusing the FISA court in accessing players in the 2016 presidential campaign of President Trump, they may have a point.