FBI Officials Were Angry That An iPhone Hack Blocked Them From Getting Court To Force Apple To Break Encryption

from the agency-actually-doesn't-care-much-about-the-public-or-safety dept

As you probably recall, last year the FBI tried to force a court to effectively create a backdoor for encrypted iPhones, using the high profile San Bernardino shootings as the wedge. It seemed quite obvious with how the whole thing played out that the FBI didn't really need to get into Syed Farook's work iPhone, but that it hoped leverage the high profile nature of the case and the "fear, uncertainty and doubt" around a "terrorist" attack to finally get a court to force Apple to do this. A new report reveals that the FBI was very much focused on using this case to force the issue to the point that top officials were angry that a vendor figured out another way into the iPhone, and stopped the court proceedings.

Again: if the real goal (as stated publicly by the FBI at the time) was to find a way into this phone for important reasons, then you'd think the FBI would be excited when they found a way in, rather than pissed that a court wasn't needed to force a backdoor. But that's not what happened.

A recently-released Inspector General's report [PDF] shows the FBI jumped the gun in the San Bernardino case. The FBI insisted it had no other options when it asked a judge to grant its All Writs Act request to compel Apple to break into the shooter's recovered iPhone. But this report shows these claims -- one repeated by the DOJ in its legal filings and by James Comey in testimony to Congress -- weren't actually true.

The ROU [Remote Operations Unit] Chief told us that, at a monthly OTD managers’ meeting on February 11, 2016, the Chief of DFAS (of which CEAU [Cryptographic and Electronics Analysis Unit] is a part but ROU is not), indicated that CEAU was having problems accessing the data on the Farook iPhone and was preparing for court. The ROU Chief, who told the OIG that his unit did not have a technique for accessing the iPhone at the time, said that it was only after this meeting that he started contacting vendors and that ROU “got the word out” that it was looking for a solution. As discussed further below, at that time, he was aware that one of the vendors that he worked closely with was almost 90 percent of the way toward a solution that the vendor had been working on for many months, and he asked the vendor to prioritize completion of the solution.

There was a another option available at the time the DOJ filed its All Writs Request (February 16). It may not have been complete yet, but the FBI had reason to believe it would be soon. Instead of giving this option a shot, the FBI tried to secure a favorable ruling compelling Apple to crack the shooter's iPhone. This wasn't what was presented to the judge in the DOJ's filing.

Comey testified before Congress on February 9th. If there had been better communication between the FBI's Operational Technology Division (OTD) and the Cryptographic and Electronic Analysis Unit (CEAU), Comey may have been apprised of this fact before his first testimonial appearance. Given the national attention being paid to this case, there's no reason Comey should have been out of the operational loop, even at this early date.

But Comey repeated the same claim nearly a month later (March 1st): the FBI could not get into the iPhone without Apple's assistance. (And again three weeks later in an angry letter to the editor published by the Wall Street Journal.) There's no way Comey could not have been aware of these developments, not with the DOJ engaged in a high-profile courtroom battle with Apple over compelled assistance.

The Inspector General finds Comey's claims to be technically true: the breakthrough offered by the still-undisclosed vendor was not passed on to the FBI until March 16th and successfully demonstrated for agents on March 20th. The following day, the US Attorney's Office informed the court of this development and withdrew its All Writs request.

Comey's statements were technically true but not the parts where he insisted the only way to access the iPhone's contents was with Apple's assistance. If he was not being informed of ongoing developments on the tech side, that's inexplicable behavior by FBI entities directly tasked with cracking the shooter's iPhone. Given the high-profile status of this case, it's not just inexplicable. It's literally unbelievable.

But that's not the only concerning aspect of this report. The head of the FBI's Remote Operations Unit (ROU) -- the person who reached out to the vendor about the progress of its iPhone crack -- was never contacted or consulted by the other offices working on the same problem. As the ROU Chief stated, the ROU walled itself off to prevent national security tools from being used in normal criminal cases.

This would seem to be good news -- the FBI drawing internal lines in the sand between natsec and normal criminal investigations -- but it actually isn't. The CEAU head believed no line existed and it could bring tools over from the natsec side any time it wanted to. But that's not the worst of it. The CEAU actually did not want a solution found.

According to the ROU Chief, his only conversation with the CEAU Chief was well after the fact, during which the CEAU Chief “was definitely not happy” that the legal proceeding against Apple could no longer go forward.

This is further backed up by statements made to the IG by FBI Executive Assistant Director (EAD) Amy Hess.

After the outside vendor successfully demonstrated its technique to the FBI in late March, EAD Hess learned of an alleged disagreement between the CEAU and ROU Chiefs over the use of this technique to exploit the Farook iPhone – the ROU Chief wanted to use capabilities available to national security programs, and the CEAU Chief did not. She became concerned that the CEAU Chief did not seem to want to find a technical solution, and that perhaps he knew of a solution but remained silent in order to pursue his own agenda of obtaining a favorable court ruling against Apple. According to EAD Hess, the problem with the Farook iPhone encryption was the “poster child” case for the Going Dark challenge.

This was also admitted by the CEAU Chief in his interview with the Inspector General.

The CEAU Chief told the OIG that, after the outside vendor came forward, he became frustrated that the case against Apple could no longer go forward, and he vented his frustration to the ROU Chief. He acknowledged that during this conversation between the two, he expressed disappointment that the ROU Chief had engaged an outside vendor to assist with the Farook iPhone, asking the ROU Chief, “Why did you do that for?”

The report makes it clear those steering the iPhone-cracking efforts were less interested in an outside vendor cracking the phone than obtaining a precedential decision. In doing so, the DOJ ended up filing false statements as sworn assertions, claiming it had exhausted every option before approaching the court with an All Writs Request. This report may sort of clear Comey and the DOJ, but it exposes something much uglier: FBI officials are not making good faith efforts to find outside solutions to the FBI's supposed "going dark" problem. They'd much rather have favorable court decisions and legislative mandates than work with the tools others are crafting for them. This all but guarantees the number of uncracked phones in the FBI's possession will continue to grow. But they should never be viewed as investigative dead ends. They should be seen for what they are: rhetorical devices.

Update: Sen. Ron Wyden sees the report for what it is. Here's his statement on the matter:

"The FBI's leadership went straight to the nuclear option -- attempting to force Apple to circumvent its encryption -- before attempting to see if their in-house hackers or trusted outside suppliers had the technical capability to break into the San Bernardino terrorist's iPhone," Wyden said. "It's clear now that the FBI was far more interested in using this horrific terrorist attack to establish a powerful legal precedent than they were in promptly gaining access to the terrorist's phone."


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Ninja (profile), 28 Mar 2018 @ 3:57am

    So the FBI would rather violate the Constitution, people privacy and put everybody at risk instead of doing their investigative jobs. Got it.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Mar 2018 @ 4:40am

      Re:

      Exactly. The phrase all enemies, foreign and domestic is there for a reason. The FBI clearly is on the domestic side of the enemies list based on their attacks on rights and freedom.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Mar 2018 @ 9:21am

        Re: Re:

        So are most of the American Citizens.

        Until the majority starts giving an actual damn, it is not going to change.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 Mar 2018 @ 9:48am

          Re: Re: Re:

          Is it possible for someone to "give a damn" and yet have no way to express it?

          Yes

          And do these same folk then get blamed for not expressing themselves?

          Yes

          What do you mean by "give a damn"?
          .... vote, protest, riot?
          What?

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Mar 2018 @ 4:52am

      Re:

      I can't wait until U.S. law enforcement gets so lazy they'll want to hand over investigations to an A.I., only to have a pattern matching algorithm automatically determine the F.B.I. and other organizations to be domestic terrorists based purely on their behaviour towards others and their deviation from stated goals and mandates.

      Yes, I need to reinstall Deus Ex again.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Mar 2018 @ 6:48am

      Re:

      Secrets are a heck of a drug.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Mar 2018 @ 4:30am

    The funny thing is, the FBI already utilizes underhanded methodologies as it sees fit. They already have the cake, they've already eaten it. What more do they even need? For a judge to say that they can have their cake and eat it and nobody can be allowed to call them an asshole?

    reply to this | link to this | view in chronology ]

    • identicon
      The Ghost of Fred Hampton and countless others, 28 Mar 2018 @ 5:01pm

      Wolves no longer in sheep's clothing

      Handsome is as handsome does. "By their works ye shall know them."

      Crooked and insane from the get-go. Headed up by a well-spoken pervert and killer elite for decades.

      In recent times they have become more overt in their treasonous actions, even to those not given to paying attention to things other than the Stupor Bowl and other such programmed diversions.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Dentistindelhi, 28 Mar 2018 @ 4:38am

    Dental Clinic in New Delhi

    Your blog is really nice. When you free please visit here: http://www.dentistindelhi.co.in/

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Mar 2018 @ 7:44am

      Re: Dental Clinic in New Delhi

      There goes Techdirt, censoring the opinions of spammers again, by hiding their comments. /s

      reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 28 Mar 2018 @ 5:49am

    The letter agencies are out of control. Have been since 9/11.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Mar 2018 @ 6:11am

    A partial truth is not the truth.

    I could be thinking about writing a fictional story in which Mr. Comey raped and killed a young girl in 1990. But, if I then go around stating that "Mr. Comey raped and killed a young girl in 1990" while conveniently leaving out the "in a fictional story I'm thinking about writing" part, it's not "technically true", it's a lie.

    Bottom line, any statement made with the purpose of deception is a lie.

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 28 Mar 2018 @ 6:39am

    Holy crap!

    Wyden said. "It's clear now that the FBI was far more interested in using this horrific terrorist attack to establish a powerful legal precedent than they were in promptly gaining access to the terrorist's phone."

    Someone actually knows when they should be using than instead of then.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Mar 2018 @ 9:04am

    Limited Hangout

    Background from Wikipedia: Limited Hangout

    A limited hangout or partial hangout is, according to former special assistant to the Deputy Director of the Central Intelligence Agency Victor Marchetti, "spy jargon for a favorite and frequently used gimmick of the clandestine professionals. When their veil of secrecy is shredded and they can no longer rely on a phony cover story to misinform the public, they resort to admitting—sometimes even volunteering—some of the truth while still managing to withhold the key and damaging facts in the case. The public, however, is usually so intrigued by the new information that it never thinks to pursue the matter further."

    (Footnotes and hyperlinks omitted.)


     

    Now it stretches credibility for the FBI to insist that the San Bernardino incident was not treated as a national security matter.

    Nevertheless, from the OIG report

    In the ROU Chief’s view, the fact that he was not asked for help sooner was not a mistake in judgment or communication breakdown on CEAU’s part, but rather the result of a long-standing policy that the ROU Chief understood created a “line in the sand” against using national security tools in criminal cases. From the time he had become the unit chief in 2010, he was told that ROU’s classified techniques could not be used in criminal cases. He said that this dividing line between criminal and national security became part of the culture in OTD and inhibited communication between the criminal and national security components in DFAS and TSS.

    (Footnote omitted.)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Mar 2018 @ 9:25am

      Re: Limited Hangout

      So...

      People are easy to trick and will quickly give up the pursuit of truth. Nothing new but the problem is pervasive.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Mar 2018 @ 9:49am

        Re: Re: Limited Hangout

        …the problem is pervasive.

        Most individuals simply can't function in a world where underneath every ‘fact’ lies contingent probability. People resort to coherent stories, and filter out contra-indicators.

        It's an open question whether nation-states can function in such a world.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Mar 2018 @ 10:56am

        Re: Re: Limited Hangout

        Most people are basically truthful and have difficulties in dealing with those who set out to deceive them.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Mar 2018 @ 10:13am

    Re-open the San Bernardino shooter case.

    Did the shooter or those close to him have direct ties to the FBI?

    Were there warnings to local police, or to the FBI directly, that were not acted on?

    With the school shooter in Florida FBI agents were notified but failed to act. Boston marathon case the FBI was working with the suspects prior to the event. In the Pulse nightclub shooting the father of the individual worked with the FBI. I'm seeing a pattern. No clue what insight it may lead to but it's disturbing, and needs to be explored.

    reply to this | link to this | view in chronology ]

    • identicon
      Reasearch Organized Gang Stalking, 2 Apr 2018 @ 7:48pm

      Re: seeing PATTERNS can indicate apophenia

      The alphabet agencies are waging covert war on key influencers, activists and dissidents.

      The pattern you see is that these key targeted individuals are frequently pushed to extreme behavior by FBI agents, informants,and the subsidiary hidden army of security contractors under the obligesse of the DHS.

      These hidden campaigns also feature other prominent patterns:
      - foreign brides who can be manipulated to become informants(the original patsy, LeeOswald provides an example)
      - one sided,unlitigated claims of domestic violence, or family court, or other instances where he said she said is used in place of jury trials and verdicts. We can see this in most cases of mass shooters.
      - gray area polcing aka "high policing" where the FBI,DHS,,and local law enforcement work with NGOs ranging from AIPAC to womens shelters and advocates, to stalk and harass men in hidden camaigns of slander and worse that can go on for years.
      - the social media of these men is filled with provocateurs for weeks, months, years before they go nuts-(or in their workpkace.Sayed Farook and Omar Mateen were both under seige by zionists like Nicholas Thallasinos) then law enforcement deletes the Facebook, etc to cover their tracks.
      - SWAT teams that train in Israel's humanrights-free zones, and ADL sponsorship of private paid junkets to Tel Aviv and Gaza that act in the capacity to encourage, and create terrorist like Sayed Faroo, Omar Mateen, and every other mass shooter.
      -Fusion Centers that track "suspects" for years, issuing de facto BOLOs and sending cops,and armies of Paul Blart the mall cop after guys who use badwords on Twitter
      -the DHS schema,which encourages social workers, and armies of DHSfunded and sponsored NGO's to think they are James andJane Bond, collecting "intelligence in what is colloquially called organized gang stalking
      - much more.

      Read www.researchorganizedgangstalking.wordpress.com

      reply to this | link to this | view in chronology ]

  • identicon
    bshock, 28 Mar 2018 @ 11:01am

    Does it make you feel so good to realize that we're depending on people like Comey and Mueller to save us from Trump and his boss Putin?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Mar 2018 @ 11:20am

      Re:

      … we're depending on people like Comey … to save us from Trump

      The Comey Letter Probably Cost Clinton The Election”, by Nate Silver, FiveThirtyEight, May 3, 2017

      Hillary Clinton would probably be president if FBI Director James Comey had not sent a letter to Congress on Oct. 28.…

      The letter isn’t the only reason that Clinton lost.…

      One can make a case that the race would have tightened even if Comey had not issued his letter.…

      [Y]ou could postulate that the Comey letter had only about a 1-point impact.…

      Nonetheless, Clinton lost Michigan, Pennsylvania and Wisconsin by less than 1 percentage point, and those states were enough to cost her the election.…

      “We're depending on people like Comey … to save us from Trump.”

      O RLY?

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 28 Mar 2018 @ 11:59am

    Love our gov..(I THINK)

    Its fun thinking that the gov. is full of idiots..
    But THEY ARE NOT..they have ulterior motives..but MOST of them are NOT DUMB..

    Watching our gov, is as bad or Worse then watching Many of the OLD SOAP OPERAS, and the convoluted stoy lines they created following 12 individuals and 3-4 families..

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 28 Mar 2018 @ 3:31pm

    I can't help but look at ROU...

    And not finish it ROUS(es).

    Maybe that's just me.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 28 Mar 2018 @ 3:43pm

    The Nuclear Option

    Some people just want to use the big bombs. In this case, they wanted permission to use big bombs.

    I wrote about the San Bernardino iPhone affair as it unfolded, and pointed out then that a skilled technician can already can crack TPM technology as it is, using a tunneling electron microscope, and yes it's time consuming and expensive.

    The fact that they hadn't resorted to such measures until after it was clear they were going to lose the case is what implied they looking to set a nuclear-option precedent, and could probably not care less about what was actually on the iPhone.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 29 Mar 2018 @ 3:08am

    'You must be new here.'

    The CEAU Chief told the OIG that, after the outside vendor came forward, he became frustrated that the case against Apple could no longer go forward, and he vented his frustration to the ROU Chief. He acknowledged that during this conversation between the two, he expressed disappointment that the ROU Chief had engaged an outside vendor to assist with the Farook iPhone, asking the ROU Chief, “Why did you do that for?

    Really now how utterly ridiculous was the ROU chief, to take the FBI's claims that they just wanted access to one phone at face value, rather than assuming that they were lying to judges and the public at large, and merely using the case for their own ends?

    It's his own fault for not assuming that the FBI was lying through it's teeth in order to set up a favorable precedent, as opposed to his mistaken belief that they actually did want access to the phone and taking what steps he could to enable this, such that the CEAU Chief was fully justified in his anger/frustration.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 Apr 2018 @ 3:12pm

    FBI officials were angry because they did not get what they wanted.

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.