(WASHINGTON) — The head of the FBI admitted Tuesday his agents made a “mistake” after finding an iPhone left behind by one of the San Bernardino, California, shooters — a misstep he acknowledged “made it hard” for investigators to access the information that federal authorities are now seeking in a growing dispute with Apple.
However, speaking to a House panel, FBI Director James Comey said the Justice Department and Apple would still be caught in a tense legal battle because — even if the FBI hadn’t erred — there is “no way we would have gotten everything” from the iPhone.
Comey insisted the FBI has an obligation to conduct a complete and “competent” investigation into the attack on Dec. 2, 2015, when Syed Farook and his wife, Tashfeen Malik, killed 14 of Farook’s coworkers and injured 22 others at a work holiday party.
“If I didn’t do that, I ought to be fired, honestly,” Comey added.
The device at issue was provided to Farook by his employer, the San Bernardino County government. And in the wake of the assault, the FBI asked county officials to remotely reset the password for the Apple iCloud account associated with the device.
“Since the iPhone 5C was locked when investigators seized it during the lawful search on December 3rd, a logical next step was to obtain access to iCloud backups for the phone in order to obtain evidence related to the investigation in the days following the attack,” the FBI said in a previous statement.
But resetting the password “had the effect of eliminating the possibility of an auto-backup,” according to the FBI.
“Even if the password had not been changed and Apple could have turned on the auto-backup and loaded it to the cloud, there might be information on the phone that would not be accessible without Apple’s assistance as required by the All Writs Act order, since the iCloud backup does not contain everything on an iPhone,” the FBI said in its statement. “As the government’s pleadings [in current litigation] state, the government’s objective was, and still is, to extract as much evidence as possible from the phone.”
A federal judge in California ordered Apple to help the FBI hack into Farook’s phone, but the company is fighting the order. On Monday, a federal judge presiding over a separate criminal case in Brooklyn, New York, sided with Apple, saying federal authorities had no legal authority to compel such assistance from Apple.
In his testimony to the House Judiciary Committee on Tuesday, Comey took issue with claims that the FBI wants Apple to create a “backdoor” into iPhones. There already is a door into iPhones, Comey declared, and the FBI now wants Apple to take the “vicious guard dog away” and “let us pick the lock.”
Specifically, the FBI and Justice Department want Apple to turn off the feature that erases an iPhone’s data after 10 failed attempts to unlock the device, so that investigators can run all possible combinations to break the four-digit passcode on Farook’s phone.
Federal prosecutors say Farook’s phone could be hiding “crucial evidence” about the terror attacks.
In his own testimony before the same House panel Tuesday, a top Apple executive said the matter was something for Congress — not a court — to resolve. And he warned that if Apple is forced to break into Farook’s phone, the code they create could endanger the privacy of people across the world.
“Hackers and cyber criminals could use this to wreak havoc on our privacy and personal safety,” Apple’s top lawyer, general counsel Bruce Sewell, told the House panel in prepared remarks. “Should the FBI be allowed to stop Apple, or any company, from offering the American people the safest and most secure product it can make?”
During his testimony Tuesday, Comey dismissed the notion that Apple’s assistance in the San Bernardino case would impact other phones, reiterating his belief that any code Apple created to help in this case would only work on Farook’s phone.
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