In a strongly-worded argument filed in court today, Apple pushed the US government on a question that many observers have been asking: If the FBI wants to hack an iPhone, why doesn't it just ask the NSA?
Last week, the company challenged a court order to build malicious software that would allow the FBI to crack the passcode of an iPhone used by Syed Farook, one of the deceased shooters responsible for the workplace rampage in San Bernardino last December. Apple is being compelled under the All Writs Act, a centuries-old law that allows courts to order anyone to do pretty much anything, as long as it’s meant to help execute a court order and isn't “unreasonably burdensome.”
Crucially, the Act requires that the government show that there is no other possible way the order could be executed—something that Apple argues has not yet happened.
“Here, by contrast, the government has failed to demonstrate that the requested order was absolutely necessary to effectuate the search warrant, including that it exhausted all other avenues for recovering information,” the company's lawyers write in their motion to vacate the court’s order.
“Moreover, the government has not made any showing that it sought or received technical assistance from other federal agencies with expertise in digital forensics, which assistance might obviate the need to conscript Apple to create the back door it now seeks.”
To that point, the company references a criminal case in New York where Apple is being compelled to help unlock a different phone under the All Writs Act. In that case, federal prosecutors told the judge that they “don’t have an obligation to consult the intelligence community in order to investigate crime.”
But San Bernardino is being investigated as a terrorism case, so it seems very strange that the FBI wouldn't consult with the NSA, given its reputation for “getting the ungettable” and its claims that its surveillance helps thwart terror plots.
“As such, the government has not demonstrated that ‘there is no conceivable way’ to extract data from the phone,” in the San Bernardino case, Apple argues.
The company also notes that the government had another opportunity to get the data it sought when the shooter's phone was first recovered, by trying to have the phone automatically back up its data to iCloud.
“Indeed, the FBI foreclosed one such avenue when, without consulting Apple or reviewing its public guidance regarding iOS, the government changed the iCloud password associated with an attacker’s account, thereby preventing the phone from initiating an automatic iCloud backup,” the company wrote.
There's a simple explanation why the agencies don't seem to be working together, said Chris Soghoian, the ACLU's lead privacy technologist: Because the government's true goal isn't unlocking the shooter's phone, but establishing a legal precedent for compelling companies like Apple to hack their own products.
“If the FBI uses an exploit, then it doesn't get them the legal precedent they want,” Soghoian told Motherboard.
Apple believes this too, arguing in a testy statement that if the government succeeds in compelling it to write software under All Writs, it will be able to force companies and individuals to do all sorts of things.
“For example, if Apple can be forced to write code in this case to bypass security features and create new accessibility, what is to stop the government from demanding that Apple write code to turn on the microphone in aid of government surveillance, activate the video camera, surreptitiously record conversations, or turn on location services to track the phone’s user? Nothing.”