While the FBI has formerly claimed that its order for Apple to create a “backdoor” into the iPhone was only to extract data from the phone used by a suspect in the San Bernardino shooting, FBI Director James Comey admitted it would instead set a precedent for future cases.
During a House Judiciary Committee hearing Tuesday, Comey said he hopes Americans will look at the “balance” the FBI is attempting to find, and said “It’s so seductive to talk about privacy is the ultimate value in a society where we aspire to be safe.”
Rep. Ted Deutch (D-Fl.) questioned Comey as to whether the creation of a “backdoor” into the iPhone would make it susceptible to terrorists and child predators.
“When this tool is created, the fear is that it might be used by others and there are many who will try to get their hands on it, and will then put at risk our information on our devices,” Deutch said.
Comey noted, “There would be substantial risks around creating this software,” and that it would be up to a judge to determine based on the government’s argument that the software “would only be usable in one phone.”
Deutch replied, “If that’s the case that it’s usable in more than one phone and it applies beyond there, then the public safety concerns that a lot of us have [about] if the public got access to our phones and our children’s phones, in that case, those are really valid, aren’t they?”
Comey said it is a valid concern, but claimed that it’s a question “we’re going to have litigation about is how reasonable is that concern,” adding “slippery slope arguments are always attractive.”
Comey acknowledged that if the federal government succeeds in forcing Apple Inc. to create a “backdoor” into the iPhone, judges and lawyers could use the software as a precedent for gaining access to phones in future cases.
As previously reported, the FBI admitted in February that it reset the password on the iPhone used by San Bernardino shooting suspect Syed Farook within 24 hours of the shooting.
Apple officials criticized the move, and by reportedly claimed that changing the password revoked the company’s access into an auto-backup of the phone. Comey admitted that this was a “mistake,” and claimed that even if the FBI had acted differently, it still wouldn’t have been able to access everything on the phone without Apple’s help.
The FBI is currently attempting to use the All Writs Act of 1789 to justify forcing Apple to extract data from iPhones in 12 different cases. In some cases, that involves using existing capabilities to pull contacts and calling information, but in other cases it would require Apple to create new software to break the iPhone’s encryption.
New York Magistrate Judge James Orenstein ruled Monday that in one of the cases, a criminal drug case in Brooklyn, the All Writs Act does not justify “imposing on Apple the obligation to assist the government’s investigation against its will.” While this ruling is not binding in any other court, it does mark the first time a federal judge has ruled in Apple’s favor.