Courts Human Rights

Featured Blog: What in the world is going down in the case of the San Bernardino shooter’s cell phone?

Photo courtesy of Kārlis Dambrāns via Flickr
Written by Kaleb Carter

HACKED.

That was the end goal of the FBI, who was looking to hack into the phone of the couple who murdered 14 people in San Bernardino, California during early December. Mission accomplished. By what methodology, though? That is yet to be determined. However, Israeli forensics firm Cellebrite is allegedly the outside party that helped the FBI.

The development allowed the FBI to bypass Apple in extracting information from the iPhone in question. The device was a work phone issued to shooter and domestic terrorist Syed Rizwan Farook. It also brought a de-facto end to the FBI’s case against Apple that demanded the tech company’s assistance in acquiring the information on the device.

Why is this important?

“The move appeared to end a historic legal showdown that pitted the demands of law enforcement investigating crimes against the rights of companies to protect their customers’ privacy,” according to a report by the LA Times.

Don’t believe for a second that this is the end of a battle that pits privacy rights against the ability of law enforcement to do their jobs. Plenty of case law and debate among lawmakers is going to come.

The FBI is already said to be using the hacking technology in helping Arkansas prosecutors with a murder case in the immediate aftermath of the hack of the iPhone. A new case could come from Apple soon asking courts to demand that the FBI explain the methodology used to hack the phone.

Ted Boutrous, a law partner at Gibson Dunn & Crutcher, assisted Apple in that case. He spoke at length on Re/Code’s “Too Embarrassed to Ask” podcast. 

Boutrous claimed that what the government was asking Apple to do originally — develop software to assist the government in unlocking the phone — “is a matter of policy and a threat to the security of hundreds of millions of iPhone users … This goes beyond anywhere any court has gone. It’s a policy issue for Congress and the President, not for a court to decide.” 

While the FBI continued to toe the line, saying it did not have the necessary expertise to get into the phone through new software, many experts are skeptical. Some think that the FBI had the technology and expertise all along but that it was trying to set a legal precedent.

Trista Thurston, an Ohio University senior journalism major with an emphasis on consumer technology, had a strong take on the matter.

“It has been my belief from the beginning that the FBI already knew how to access the phone and was only doing this for legal precedent. Now, that seems to be the case,” Thurston said.

Sarah Jeong of Vice’s Motherboard wrote about how the FBI had, in fact, tried to test a statute (The All Writs Act of 1789) that it employed in this case against Apple in another case even before the San Bernardino shooting. The All Writs Act is a federal statute that enables the government to take action where there is no relevant law available as long as it follows legal principles of law. This act is proving effective for the government to use in order to access information on password-protected phones.

According to Jeong, the government had been trying in court to say Apple was obstructing a search warrant.

“After that, the DOJ argues that the court cannot deny the order for fear of opening the ‘floodgates,’ and is not entitled to speculate about future harms down the line,” Jeong said. “In other words, after making arguments that have big-picture implications, the government says the big picture is irrelevant.”

Jason Koebler, also of Vice’s Motherboard, explained how the mid-February order from a federal judge demanded that Apple assist the FBI and why it was necessary.

Simply, iPhones are encrypted to protect information. You have to type a passcode to unlock it. If you get the code wrong 10 times in a row, it deletes the phone’s encryption key. Now that the FBI has bypassed Apple’s encryption, accessing the phone’s content is easy. This “backdoor” solution allows the FBI to force its way into the phone and gives it limitless attempts at correctly entering the passcode.

If new software is developed to weaken device security, it can — and will — be employed by law enforcement and government officials to gain access to private information on citizens’ mobile devices.

Edward Snowden offered this reminder.

Americans should be weary of where the FBI is going with this either newly-discovered or finely-honed hacking technique. One hell of a legal mess is about to be led by a slew of civil liberties advocates, legal professionals, national security and law enforcement professionals and more. The whole debacle will be a carnival of grand proportions. Don’t change the channel.

 


 

Here are five pieces of media that explain this complex situation concerning the phone used by the San Bernardino shooters.

  • Here’s the document that signalled the end to the court case in question in this article.
  • Sarah Jeong has done some extremely informative work on this case.
  • The LA Times reports on how the FBI is set to help Arkansas prosecutors using the “newly-discovered” hacking abilities.
  • Apples’ likely next steps in the legal realm explained by Quartz’s Joon Ian Wong.
  • The Verge’s Russell Brandom explains what might happen next after all this noise.

About the author

Kaleb Carter

Kaleb is currently the director of research and development and maintains a blog on Law, Justice, and the Media. He was previously social media director and a city reporter, and has worked as a journalist in some capacity at WOUB, Hustlebelt, and Mid-Major Madness covering sports, and additionally was an editorial and writing intern with The Athens News. This past summer he served as a communications intern for the ACLU of Ohio. He likes to write about civil liberties, human rights, social justice work, contemporary American politics, the law and more. You can find him coaching high school football, watching Spongebob, Dragon Ball Z, and surfing tumblr.

Leave a Comment