In congressional hearings Tuesday, FBI Director James Comey seemed to debunk one of the more intriguing, and plausible, conspiracy theories that has been floating around the Apple/FBI case from the beginning. The theory goes like this:
If the FBI really wanted to hack San Bernardino shooter Syed Farook’s iPhone, and only his iPhone, it could simply ask the techno-spooks over at the NSA to do it. The NSA, it’s implied, has its ways—some dark arts (or zero-day exploits) by which it could circumvent the supposedly uncrackable security features of an iPhone 5C running iOS 9. Apple itself has suggested as much in a court filing, saying the government hasn’t demonstrated that it sought help from “other federal agencies” that might “obviate the need to conscript Apple to create the back door it now seeks.”
But the FBI doesn’t want to ask the NSA for help, the theory goes—because its real goal is not to unlock Farook’s phone but to establish a legal precedent. That precedent would allow law enforcement agencies to compel Apple and other tech companies to, essentially, hack their own devices, sparing the government the trouble. The effect would be to substantially broaden the government’s powers, American Civil Liberties Union security expert Christopher Soghoian argued in an interview with Vice: “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.”
Testifying before the House Judiciary Committee on Tuesday, Comey for the first time was asked point blank—well, almost point blank—whether the FBI had in fact asked the NSA for help. His answer, for what it’s worth, was a pretty clear “yes.”* Here’s the precipitating question from Rep. Judy Chu, Democrat of California (italics mine):
I’d like to ask about law enforcement finding technical solutions. I understand that there may be other methods or solutions for law enforcement when it comes to recovering data on a smartphone. Professor [Susan] Landau argues in her testimony later today that solutions to accessing the data already exist within the forensic analysis community—solutions which may include jailbreaking the phone, amongst others. Or she says other entities within the federal government may have the expertise to crack the code. Has the FBI pursued these other methods tried to get help from within the federal government, such as from agencies like the NSA?
Yes is the answer. We’ve talked to anybody who will talk with us about it, and I welcome additional suggestions.
Comey later reiterated, a little ominously: “If we could have done this quietly and privately, we would have done it.”
*Correction, March 2, 2016: This post originally mischaracterized FBI Director James Comey’s response to a question about whether he had asked the NSA for help as “a pretty clear ‘no.’” His answer was in fact a pretty clear “yes.”