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Decryption: Coming To A Police Department Near You

CREDIT: AP PHOTO/RONALD LIZIK
CREDIT: AP PHOTO/RONALD LIZIK

The technology used to crack the iPhone of one of the San Bernardino shooters is coming to a local police department near you. The FBI told local law enforcement agencies that it would teach them to unlock iPhones and other mobile devices, according to an advisory letter issued late last week in response to inquiries about the new technique.

According to Buzzfeed, which first reported the news, the FBI did not expressly state the unnamed third-party used to unlock the iPhone would be available to local law enforcement agencies, but would “consider any tool that might be helpful to our partners,” FBI assistant director Kerry Sleeper wrote in the advisory letter.

We know that the absence of lawful, critical investigative tools due to the “Going Dark” problem is a substantial state and local law enforcement challenge that you face daily. As has been our longstanding policy, the FBI will of course consider any tool that might be helpful to our partners.

“Going Dark” is what the FBI calls the gap between law enforcement agencies’ legal and technical capabilities to intercept and analyze communications. Encryption use by tech companies, app developers, and everyday consumers is a chief concern. But the agency is conflicted on whether there should be legal workarounds to allow law enforcement to decrypt secure communications.

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The agency has kept the identity of the third party contracted to unlock San Bernardino shooter Syed Rizwan Farook’s iPhone 5c secret, along with how the company cracked it. Media reports have speculated the FBI tapping Israel-based Cellebrite, a global mobile forensics company, may have been used to unlock the phone through a process called NAND mirroring. That technique allows forensic analysts to make copies of the iPhone’s storage to guess the security passcode without compromising the original device.

The FBI hasn’t confirmed or denied those reports, but the agency’s letter shows an eagerness to help local law enforcement gather evidence and better solve cases. Days after announcing it had broken into Farook’s phone, the FBI agreed to help the Arkansas prosecutors unlock an iPod and iPhone 6 in a murder case. Prosecutors in Baton Rouge are hoping to get a similar offer to help solve the fatal shooting of Brittney Mills in 2014.

But the FBI’s new technique has raised questions about whether it should be shared, and whether the agency even has the authority to do so. The American Civil Liberties Union (ACLU) has been fighting to discredit the government’s use of the 18th-century All Writs Act (AWA) to justify compelling third parties to assist in law enforcement investigations. But the organization has also warned against spreading the FBI’s new technology because it might end up in the wrong hands.

“It would be great for the court to say the AWA can’t be used. To have that legal precedent established. But it’s critical for Congress to not mandate backdoor legislation,” Esha Bhandari, ACLU staff attorney, told ThinkProgress. “If the tool is used over and over again, the risk of it falling in the hands of illegal actors would increase.”

While criminals could certainly use iPhone hacking technology, abuse could also come from law enforcement. Police departments have a history of overusing new technology, indiscriminately collecting sensitive information that may violate individuals’ privacy rights.

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Former CIA counterintelligence agent Philip Mudd told NPR the technology belongs to the third party that created it, and it’s up to them to disseminate it.

“We have a third-party entity — a private entity that was paid by the FBI for the capability to get into the phone. If I were that third-party entity, I would say — to the FBI — you don’t have the right to give what we just told you to Apple,” Mudd said. “If Apple wants this, they’ll have to approach us and pay us a lot of money to realize how we broke into their phone. So I don’t think it’s as simple as asking whether the FBI should share it. I wouldn’t share it if I were them because I’m not sure they own it.”

Additionally, the vagueness in the FBI’s letter to local police may give credence to that theory: “Please know that we will continue to do everything we can to help you consistent with our legal and policy constraints. You have our commitment that we will maintain an open dialogue with you. We are in this together.”