from the one-body,-multiple-mouths,-ears-unconfirmed dept
The DOJ is still fighting a lawsuit over the iPhone exploit the FBI purchased to access the (worthless) contents of a phone used by a participant in the San Bernardino shooting. FBI director James Comey and the DOJ made comments at the time stating a couple of things:
1. The phone crack was expensive.
Specifically, Comey said that buying the exploit from this group cost the FBI "more than I will make in the remainder of this job, which is seven years and four months, for sure." Comey makes $185,100 per year at his job, implying that buying the exploit cost at least $1.3 million or so.
2. The phone crack only applied to a small subset of iPhones.
A DOJ spokesperson says... the crack only applied to iPhone 5C devices.
These statements are being wielded against the DOJ by the new agencies bringing this FOIA lawsuit. The DOJ isn't happy seeing the FBI director's words (along with its own) being used to undermine its arguments: namely, that almost nothing about the iPhone exploit can be revealed without ripping holes in the national security fabric or nullifying the FBI's intelligence-gathering techniques.
Plaintiffs remaining objection is unavailing. They claim that the iPhone tool itself is of no current value. See Opp’n at 15-16 (“Acceptance of the FBI’s argument would also require this Court to ignore that the FBI has been exceedingly public about the fact that the tool applies only to a specific model of phone (the iPhone 5c) running a specific, and already outdated, operating system (iOS9). Were adversaries on the hunt for actually effective countermeasures, they need only to heed [Director] Comey’s public statement and simply use a different kind of phone, or a different operating system.”) (citation omitted). But this argument is unvarnished speculation about the efficacy of this intelligence tool – and this Circuit has made exceedingly clear that such speculation cannot defeat an agency’s summary judgment claim.
Someone's assertions are wrong. Either the DOJ was lying when it said it would only work on certain iPhones, or it's lying now to protect its secrecy by implying the purchased exploit is usable on other iPhones.
The DOJ clarified last spring the exploit affected any iPhone 5c and wasn't limited to those running iOS9. But even if that clarification is applied to its arguments in this lawsuit, this paragraph stills points to someone at the DOJ being dishonest. The counterargument that people wishing to prevent the FBI from accessing their phone's contents could just switch to a newer iPhone still applies. And that's the part the DOJ is calling "unvarnished speculation."
Of course, the plaintiffs are in the unfortunate position of having little more than unvarnished speculation to work with. Some documents pertaining to the purchased iPhone crack have been released, but have been almost completely redacted, save for some standard contractual language of no informational value. The DOJ is leveraging information it doesn't want to release to argue against being forced to release it. That's certainly convenient for the DOJ, as are any of its intelligence gathering arguments, which grant it the power to dispel questions about over-redaction without having to explain its side of the issue.
Thus, while the identity of the vendor may not itself be an intelligence source or method, see Opp’n at 18, releasing that information leads “logically or plausibly” to information about the intelligence source or method, see Judicial Watch, 715 F.3d at 941, and is thus exempt from disclosure under Exemption 3. That is particularly true in light of the “considerable deference” owed to the FBI in this context. Leopold, 106 F. Supp. 3d at 58; see also Ctr. for Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003) (“[W]e have consistently deferred to executive affidavits predicting harm to the national security, and have found it unwise to undertake searching judicial review.”). Accordingly, the FBI has appropriately applied Exemption 3 to these two pieces of information.
A version of this argument just helped the DOJ keep its journalist-surveilling secrets hidden from journalists (it possibly surveilled) in another FOIA lawsuit. Chances are, the court will side with the FBI and its national security assertions. Unfortunately, the DOJ's contradictory statements aren't on trial here -- just its broad assertions about national security and intelligence-collecting methods, both of which appear to be so easily compromised it can't even let the country know how much it paid to crack a single iPhone.