The FBI is facing claims it deliberately selected the emotionally charged case of the San Bernardino terrorist’s iPhone to force a precedent on encryption policy.
“I think the FBI is being very selective here, and it has much more to do with the emotional value and public relations value of the case than it does with the FBI’s real need for the phone,” former White House counterterrorism and cybersecurity chief Richard Clarke told The Hill.
Led by Director James Comey, the FBI has for months advocated different avenues for law enforcement to access locked communications with the appropriate court order. Technologists and privacy advocates have pushed back, insisting that impenetrable encryption is indispensable to online security and privacy.
The latest salvo in what's become an increasingly bitter fight came last week, when the agency asked federal judge Sheri Pym to issue a court order demanding Apple write a piece of software to disable certain security features on the county-owned work phone of San Bernardino, Calif., shooter Syed Rizwan Farook.
Farook, with wife Tashfeen Malik, killed 14 in the December massacre.
Critics are suggesting the FBI’s choice was calculated. By pressing forward in a case with optics that seem cut and dry, they say, the agency could set a precedent that gives it the controversial guaranteed access Comey has been demanding.
"It’s a brilliant tactic,” said Chris Finan, a former Obama administration cybersecurity adviser who now heads California-based financial tech firm Manifold Technology. “They realize the public is going to be on their side.”
Apple is opposing the order, arguing the FBI’s demand sets “a dangerous precedent” that would eventually let the agency demand Apple build surveillance software to do everything from track a user’s location to turn on his or her iPhone microphone without consent.
Comey has argued fiercely that the case impacts only Farook’s phone, but such claims appeared tenuous when it was revealed Tuesday that the Justice Department is pursuing about a dozen undisclosed court orders to force Apple to help authorities access locked iPhones.
“Give me a break. Of course it has precedential value,” Clarke said.
“Absolutely it sets a precedent,” Sen. Ron WydenRon WydenIPAB’s Medicare cuts will threaten seniors’ access to care A guide to the committees: Senate Tech, advocacy groups slam DHS call to demand foreign travelers' passwords MORE (D-Ore.), a staunch Capitol Hill advocate for digital rights, said Tuesday.
Bolstering suppositions that the FBI’s choice was tactical are the deeply emotional terms it is using to appeal to the public.
“The San Bernardino litigation isn't about trying to set a precedent or send any kind of message. It is about the victims and justice,” Comey wrote in an impassioned op-ed published Sunday. “We owe them a thorough and professional investigation under law.”
Critics aren’t buying it — not the agency’s insistence that the legal case is “narrow,” nor its decision to “drape itself in the flag of national security,” as one attorney described the FBI’s portrayal of the case.
In what is now being portrayed as a premeditated move, the agency asked a lawyer representing victims of the attack to support its case two days before it asked Pym to issue the order, according to reports that surfaced Tuesday.
Former federal judge Stephen Larson has told several publications that Eileen Decker, the U.S. attorney for the Central District of California, asked him personally if he was interested in representing the victims.
Then, according to The Guardian, on Feb. 14, Decker asked Larson to file a brief supporting the government position on behalf of the victims. Larson agreed, and Decker requested and received the Apple court order from Pym two days later.
There is also the question of the value of Farook’s phone. Two other phones used by the terrorists were destroyed before the attack. Farook left the disputed device, his work phone, lying casually in his vehicle.
“The possibility that there’s any information on this phone about an imminent attack is negligible or zero,” Clarke said.
Clarke also noted that the impending court battle — which could eventually go to the Supreme Court — suggests the FBI isn’t too concerned with the contents of this particular device.
“I think that in some way demonstrates there’s no urgency here on the part of the FBI. They don’t really need this phone,” he said.
Even Comey has allowed that the phone might be, in fact, worthless.
“Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t,” he wrote Sunday. “But we can't look the survivors in the eye, or ourselves in the mirror, if we don't follow this lead.”
Some lawmakers have come to the agency’s defense.
Asked if the agency had singled out the San Bernardino case because it was so emotionally charged, Sen. Richard BurrRichard BurrA guide to the committees: Senate Juan Williams: Senate GOP begins to push Trump away Report: Senate Intel Committee asks agencies to keep records related to Russian probe MORE (R-N.C.) responded quickly and emphatically: “No. No. No.”
“Any murder is emotionally charged,” said Sen. Dianne FeinsteinDianne FeinsteinA guide to the committees: Senate Dem: Trump's China trademark looks like a quid pro quo Senate advances Trump's Commerce pick MORE (D-Calif.). “I am all but certain that the Justice Department would not do this — I think they legitimately need the help.”
Whether the Justice Department is winning the fight for public opinion remains to be seen. Two polls on the issue returned dramatically different results, depending on the wording of the question.
And observers say that even if the FBI’s choice to stoke a public fight over this particular phone was strategic, it doesn’t change the technical facts of the case.
“They’ve got all the optics, but I think the government’s attempt to contextualize it and make an emotional appeal — that’s all good press, but I don’t think that changes what’s at issue and what’s at stake,” said Scott Vernick, a partner at Fox Rothschild.
—David McCabe and Cory Bennett contributed