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The FBI could have gotten into the San Bernardino shooter's iPhone, but leadership didn't say that

A woman brings flowers to a makeshift memorial on the one-year anniversary of the San Bernardino massacre in San Bernardino, California, 2 December 2016
A woman brings flowers to a makeshift memorial on the one-year anniversary of the San Bernardino massacre in San Bernardino, California, 2 December 2016

David McNew/Getty Images

This statement was originally published on eff.org on 2 April 2018.

The Department of Justice's Office of the Inspector General (OIG) last week released a new report that supports what EFF has long suspected: that the FBI's legal fight with Apple in 2016 to create backdoor access to a San Bernardino shooter's iPhone was more focused on creating legal precedent than it was on accessing the one specific device.

The report, called a "special inquiry," details the FBI's failure to be completely forthright with Congress, the courts, and the American public. While the OIG report concludes that neither former FBI Director James Comey, nor the FBI officials who submitted sworn statements in court had "testified inaccurately or made false statements" during the roughly month-long saga, it illustrates just how close they came to lying under oath.

From the onset, we suspected that the FBI's primary goal in its effort to access to an iPhone found in the wake of the December 2015 mass shootings in San Bernardino wasn't simply to unlock the device at issue. Rather, we believed that the FBI's intention with the litigation was to obtain legal precedent that it could compel Apple to sabotage its own security mechanisms. Among other disturbing revelations, the new OIG report confirms our suspicion: senior leaders within the FBI were "definitely not happy" when the agency realized that another solution to access the contents of the phone had been found through an outside vendor and the legal proceeding against Apple couldn't continue.

By way of digging into the OIG report, let's take a look at the timeline of events:

- December 2, 2015: a shooting in San Bernardino results in the deaths of 14 people, including the two shooters. The shooters destroy their personal phones but leave a third phone - owned by their employer - untouched.
- February 9, 2016: Comey testifies that the FBI cannot access the contents of the shooters' remaining phone.
- February 16, 2016: the FBI applies for (and Magistrate Judge Pym grants the same day) an application for an order compelling Apple to develop a new method to unlock the phone.

As part of that application, the FBI Supervisory Special Agent in charge of the investigation of the phone swears under oath that the FBI had "explored other means of obtaining [access] . . . and we have been unable to identify any other methods feasible for gaining access" other than compelling Apple to create a custom, cryptographically signed version of iOS to bypass a key security feature and allow the FBI to access the device.

At the same time, according to the OIG report, the chief of the FBI's Remote Operations Unit (the FBI's elite hacking team, called ROU) knows "that one of the vendors that he worked closely with was almost 90 percent of the way toward a solution that the vendor had been working on for many months."

Let's briefly step out of the timeline to note the discrepancies between what the FBI was saying in early 2016 and what they actually knew. How is it that senior FBI officials testified that the agency had no capability to access the contents of the locked device when, the agency's own premier hacking team knew capability was within reach? Because, according to the OIG report, FBI leadership doesn't ask the ROU for its help until after testifying that FBI's techs knew of no way in.

Read the full statement on EFF's site.

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