Apple Unlocking Case Not “Trailblazer” for Precedent: FBI Chief

4780635479_a716dec6d3_bThe case involving a court order demanding Apple help the FBI unlock the iPhone linked to one of the San Bernardino shooters is “unlikely to be a trailblazer” for setting a precedent for other cases, FBI Director James Comey told a congressional panel Thursday.

The complex and evolving nature of mobile phone software will limit how broadly the case can be applied, Comey said during a U.S. House of Representatives Intelligence Committee hearing examining worldwide threats.

While the case “will be instructive for other courts,” larger policy questions about reasonable law enforcement access to encrypted data will likely need to be resolved by Congress and others, Comey said.

The Federal Bureau of Investigation is seeking Apple’s help in accessing a county-owned iPhone 5C used by Syed Rizwan Farook, who along with his wife went on a shooting rampage in December that killed 14 and wounded 22. Last week, it obtained a court order from a California magistrate asking Apple to comply.

Apple has said the request amounts to asking a company to hack its own device and would set a troubling precedent for how companies must comply with law enforcement. Apple CEO Tim Cook told ABC News on Wednesday the company is willing to take the case to the U.S. Supreme Court if necessary.

Rep. Adam Schiff, the top Democrat on the congressional panel, also warned that “I don’t see a limiting principle” in the Apple case. “While the result may only affect this phone, the precedent may be there for many others,” Schiff, who represents California, said.

U.S. intelligence officials have long warned that the expanded prevalence of strong encryption poses a “Going Dark” problem where they are unable to monitor the communications of criminal suspects and thwart potential plots.

But technologists and privacy advocates warn that undermining encryption would expose data to hackers and jeopardize the integrity of the Internet.

FBI Director James B. Comey attends a news conference on terrorism after speaking at the NYPD Shield Conference in the Manhattan borough of New York, December 16, 2015. REUTERS/Darren Ornitz
FBI Director James B. Comey

The U.S. Justice Department contends it is asking only for Apple to disable “non-encrypted barriers” on the San Bernardino phone, such as a feature that deletes data after ten consecutive incorrect passcode guesses.

While both Apple and the FBI have said they would like Congress to help resolve the dispute over encryption, legislative proposals have failed to gain momentum.

The encryption debate “is the hardest question I’ve seen in government,” Comey said.


The problem with the claim that this won’t set a precedent is that one, other prosecutors are waiting to jump on the precedent and use it to their advantage, and also that this court order requires an unprecedented level of effort from Apple.

This is not a simple case of extracting a password, hacking a system, or giving the FBI access to an online server. Instead, what the FBI wants is for Apple to develop a replacement firmware for the iPhone which would lack certain security features and thus be easier for the FBI to hack.

I think Tim Cook put it best in his interview with ABC World News earlier this week. “If a court can ask us to write this piece of software, think about what else they could ask us to write,” he said. “Maybe it’s an operating system for surveillance. Maybe it’s the ability for law enforcement to turn on the camera. I mean, I don’t know where this stops.”

This court order effectively compels Apple to publish a firmware for the iPhone, firmware which could be used elsewhere. That makes this a serious security and privacy issue, but more importantly this is also a huge first amendment issue.

The FBI is forcing Apple to “say” what the FBI wants, and when it comes to hacking devices that is a whole new ballgame.

That detail didn’t make it into either of the two conflicting polls which show the public is behind Apple/FBI, and it moves this discussion beyond the level of technical hacking and forces us to ask the question of whether the FBI can violate our Constitutional rights in this way.

Yes, this court order sets a precedent, and anyone who says otherwise is simply wrong.

image by Dru Bloomfield, Reuters


  1. Paul25 February, 2016

    And it looks like the FBI, after days of denying it, now admit that the case could be a game changer.

    1. Nate Hoffelder25 February, 2016

      It looks like The Intercept is pointing to the same testimony I am writing about and putting a different spin on it.

      We both quote “will be instructive for other courts”, but The Intercept makes a bigger deal out of it.

  2. Frank25 February, 2016

    At least the FBI said now says this “will be instructive for other courts”, days ago they were saying this was only a one-time thing.

  3. Max25 February, 2016

    What happens when the iphone 10 comes out with a hardware lockout feature that even Apple can’t defeat?

    Will the FBI campaign to make such phones illegal?

    1. Nate Hoffelder25 February, 2016

      I don’t think it will take that long. I bet the next major software revision will make parts of the security software non-updatable and non-replaceable.

  4. […] to fight the court order requiring it to develop a new firmware so that the FBI can more easily hack a terrorist's phone, another major tech company has taken a surprise step back from protecting its customers privacy […]

  5. […] asked that the order be vacated, arguing that such a move would set a dangerous precedent and threaten customer […]


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