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FBI cracks the locked iPhone, but legal questions remain unanswered

A conflict between tech giant Apple and the FBI over the encrypted iPhone of one of the San Bernardino shooters came to a moot point when Justice Department officials announced they had cracked the phone’s security without Apple’s help. Gwen Ifill talks to Devlin Barrett of The Wall Street Journal and Fred Kaplan of Slate for more on how the FBI got what it wanted and what happens now.

Read the Full Transcript

  • GWEN IFILL:

    A pitched battle between the Obama Justice Department and one of the world’s biggest tech companies appeared to end abruptly this week, when the government decided to drop its insistence that Apple crack the code for an iPhone used in the San Bernardino shootings.

    Apple had refused, insisting such cooperation would constitute a major breach of privacy. The impending standoff ended yesterday when the government announced it had been able to crack the phone after all, without Apple’s help.

    But questions remain.

  • For that, we turn to Devlin Barrett, who covers the Justice Department for The Wall Street Journal, and Fred Kaplan, a columnist with Slate. He’s the author of “The Dark Territory:

    The Secret History of Cyber War.”

    Devlin, starting with you, did one or the other of the parties in this case back away, just back up?

  • DEVLIN BARRETT, The Wall Street Journal:

    The government backed away. The government said — but it also got what it wanted, in a sense, because it got into the phone it had been trying to get into for months.

    I think what you saw happen was that the government spent two months saying it can’t get into this phone without Apple, and then at the last minute, essentially, it said, actually, someone has just come to us and told us that we can get into it without Apple, and that’s what happened.

  • GWEN IFILL:

    So, Fred Kaplan, the obvious question for so many of us is, who broke into the phone for them, and how did they find them, and had they — would they have been able to find them before without all of this legal mishmash?

  • FRED KAPLAN, Slate:

    Well, it seems to be an Israeli cyber-security firm called Cellebrite, which consists mainly of retired professionals from the — an outfit called Unit 822, which is a — the cyber-warfare branch of the Israeli intelligence agency, sort of the Israeli NSA.

    You can imagine. Here’s the FBI saying, we can’t break into this phone. Here’s Apple saying, we don’t want anybody to break into this phone. This is the most secure phone out there. You have got hundreds, maybe thousands of hackers around the world who look at this and say, hmm, let me give this a try.

    And, you know, the law that the FBI was invoking to get Apple to open it themselves, which is a 1789 law called the All Writs Act, states that if somebody else can do it, if you can find some way to do it without demanding that a company like Apple do it, then you have to drop your suit.

    And that’s why the FBI withdrew. They had to. They really didn’t want to. They thought that they had a good case here and were ultimately trying to test a new legal principle to accommodate for this new stronger era of encryption.

  • GWEN IFILL:

    Well, Devlin, let’s pick up on that, because if indeed there is another way the hack into phones like this, Apple’s argument had been there’s a slippery slope here, and if we agree to do this, then everybody — then we will have to do it in the future. Is the slippery slope still in place?

  • DEVLIN BARRETT:

    The legal argument is still unresolved, and the battle will go on. The war will go on even if the battle ends on this phone has ended.

    So, there is in — from a technologist’s point of view, a real issue of, if you do what the government wants, there will always be more vulnerabilities to systems than technologists would like to see.

    The government’s argument is, you shouldn’t have devices that are warrant-proof, that even with a judge’s order, we can’t — meaning the government, can’t get into and can’t look at and can’t see if there is evidence of a crime in those devices.

  • GWEN IFILL:

    But they didn’t have the — they didn’t — they weren’t able to set that legal precedent that they were seeking, if that’s true.

  • DEVLIN BARRETT:

    No, but there’s ever reason to expect that there will be another phone with a similar issue very soon.

    There’s already a bunch of other phones on lesser cases that are in dispute right now. Everyone expects that this fight will only continue.

  • GWEN IFILL:

    So, let’s talk about other cases, Fred Kaplan.

    There is also — there is a drug case in Brooklyn where we’re expecting in a couple weeks, if not sooner, to hear about whether the government can get access to that phone.

  • FRED KAPLAN:

    Yes. There are several drug cases like that.

    You know, local law enforcement agencies, they don’t know how to hack into these phones. The FBI alone doesn’t know how. If this phone had — if there were some reason to believe that this phone had truly urgent material on it that the government had to get hold of for national security purpose, the FBI could have put in a request for technical assistance to the National Security Agency, which would have been able to open up this phone.

    Things like that have happened before. The fact that the FBI didn’t do this suggests to me that the issue wasn’t the phone, but they were trying to create a new legal precedent.

  • GWEN IFILL:

    What do you think about that, Devlin Barrett?

  • DEVLIN BARRETT:

    The FBI has denied that. The FBI has denied that the government had any answers on this.

    Now, I think Fred and a lot of other people are incredibly skeptical of that explanation. I think one of the big tests of this case has been the FBI’s credibility, because some of what they said has been contradicted by other things that they have said. So it will be interesting to see going forward.

    You know, Washington and Silicon Valley have a very tense relationship right now.

  • GWEN IFILL:

    Well, what about…

  • DEVLIN BARRETT:

    It will be interesting to see how this affects that relationship. It worsens it, probably.

  • GWEN IFILL:

    What about Apple’s credibility? This is one of these questions where it seems — so, there was a real argument to be made that Apple was being difficult.

  • DEVLIN BARRETT:

    Well, right.

    And there’s plenty of folks in government who believe that what Apple is arguing is ultimately a bad thing for society. You know, there are — as Fred said, there are outstanding cases all over the country where prosecutors and detectives can’t get into phones.

    There are plenty of people who say, that’s not a good outcome. There should be a better solution to this. Do you really want a situation where, if someone you love is murdered and the evidence of that crime may be on the victim’s phone, that you can’t even get into the victim’s phone? That’s the argument against what Apple has been saying.

  • GWEN IFILL:

    Fred Kaplan, what — if this were a smaller company, not the all-powerful Apple, a smaller tech company with a similar request being made, do you think that it’s possible that it would have had the same outcome?

  • FRED KAPLAN:

    Well, look, you know, in previous cases, Apple has agreed to unlock phones about 70 times, usually under FISA court orders.

    In this instance, I’m told that it could have quietly done something to give the FBI the information that wouldn’t have opened up all of their phones to vulnerabilities, that wouldn’t have required them to write a whole new operating system. I’m not sure of that.

    But the thing is, there has been an almost-century-long history of telecoms cooperating with intelligence agencies, going back to Western Union, AT&T and continuing into the Internet age today. Apple is a bit more libertarian in its attitudes than some of the other companies.

    The FBI was trying to sustain this arrangement where companies do cooperate. Apple is trying to create a new road to go out on. I think you’re right that this conflict is not over. There will be another case.

    At some point, the courts are going to have to decide about this. All of these cases are based on laws that were written long before the age of cell phones and digital technology.

  • GWEN IFILL:

    Right.

  • FRED KAPLAN:

    It will be very interesting to see how the law ends up on this. There’s no — everything is ambiguous.

  • GWEN IFILL:

    Well, and perhaps Congress is going to end up weighing in as well.

    Fred Kaplan, Devlin Barrett, thank you both very much.

  • DEVLIN BARRETT:

    Thank you.

  • FRED KAPLAN:

    Thank you.

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