East Baton Rouge Parish District Attorney Hillar Moore III has hopes of getting access to the technique to open the locked iPhone of slain Baton Rouge mother Brittney Mills.
The special federal interagency panel, part of what’s known as the Vulnerabilities Equities Process, reviews in secret whether software weaknesses that U.S. intelligence agencies find should be made public.
The FBI decision April 27 not to share the technique with the panel has been interpreted by many as a sign the FBI does not want the method revealed publicly, as Apple could quickly find a patch to block it.
But criminal defendants have bedrock Constitutional rights to see the evidence against them and confront their accusers at a public trial, so it hasn’t been clear what the FBI’s reluctance to share the information with the VEP panel means for local criminal prosecutions.
Christopher Allen, an FBI spokesman in Washington, D.C., said the agency has not decided if and how it would share the method with local law enforcement officials who hope to use the technique on hundreds of locked cell phones.
He said the FBI stands by its position in an April 1 letter sent to law enforcement around the country after the FBI announced it had accessed the San Bernardino attacker’s iPhone.
Without directly saying the FBI would share the method, the statement said the FBI would do everything it could, “consistent with our legal and policy constraints,” to share its investigative tools.
Allen said the statement about the VEP decision was “a different matter” from the FBI’s considerations on sharing the technique with local law enforcement officials.
“Those are two separate issues completely,” Allen said.
Deemed by the FBI as homegrown U.S. extremists inspired by foreign terrorist groups, Syed Rizwan Farook and his wife, Tashfeen Malik, went on a shooting rampage in December in San Bernardino, killing 14 and injuring 22.
The April 1 letter to local law enforcement and prior discussions with the FBI had already reinforced District Attorney Moore’s belief that his office would get help in opening Mills’ locked iPhone.
Mills, 29, was eight-months-pregnant when she was gunned down at her front door April 24, 2015. Her unborn son, Brenton, was delivered but died later.
Contacted on Friday, Moore said Allen’s statement that help for his office and others’ remains on the table comes as no surprise. The Mills case has received national attention as one of several criminal cases stymied by locked Apple iPhones that not even properly ordered court warrants can open.
Moore said he believes his office will be among the first to get access when the method is made available.
“I think I will get it. It’s just a matter of when,” Moore said.
FBI and Apple had been in a high-profile court battle over access to the San Bernardino attacker’s iPhone. The dispute pitted the protection of privacy rights in an increasingly wired society against the government’s concerns over national security in the face of robust encryption that is widely available.
The FBI wanted a federal court in California to order Apple to create a back-door way to get past the phone’s encryption. The agency had a warrant, but Apple said even it could not get through the pass codes in iPhones with more recent operating systems.
Then U.S. attorneys told a federal judge in California March 28 that the FBI found another way into Farook’s iPhone and didn’t need Apple’s help.
When the FBI announced it would not be sharing that technique with the VEP panel April 27, the agency said it bought the method from “an outside party” but did not obtain rights to the technical details and did not have enough information to meaningfully share for the VEP review.
The Associated Press and other national news organizations have estimated the method cost more than $1 million based on indirect statements from FBI Director James Comey.
The Washington Post, citing anonymous sources, reported April 12 that the FBI paid a one-time fee to professional hackers for the technique.
It allowed the agency to crack the iPhone’s four-digit pass code with what’s known as “brute force” — repeated guesses — without triggering a security feature that would have erased the phone’s data after too many incorrect guesses were made.
Allen, the FBI spokesman, did not dispute this account.
Alex Abdo, staff attorney with the American Civil Liberties Union’s Speech, Privacy and Technology Project in New York, said he finds it “deeply troubling” that the government can be willfully blind to the sources of its information.
He said it would be a mistake to allow the government to keep criminal defendants in the dark and not allow them to test the reliability of the evidence against them.
“You can’t meaningfully defend yourself unless you know what information the government is using to prosecute you with and how it got that information,” Abdo said.
Moore said he believes the constitutional protections afforded criminal defendants are likely to force the method into the open at some point. He said the FBI has to find a way to reconcile those rights with the desire to keep the technique secret.
Allen said that issue is “the very challenge that needs to be determined if we’re going to be able to share with state and local” authorities.
But Edward Richards, an LSU law professor who teaches a class on national security law, said he doubts the FBI will share the technique.
He pointed out that while prosecutors in federal criminal cases have a number of options to keep national security secrets under wraps, federal prosecutors sometimes drop cases to keep important information from becoming public. And that is in U.S. District courts where federal prosecutors have a lot of control, Richards said.
State criminal courts can be a different matter, he said, as local prosecutors might be reluctant to drop a controversial case to protect a federal interest.
“They’re (federal authorities) certainly not going to want to risk this stuff coming out in a local criminal law case if it might compromise a national security issue,” Richards said.
Moore, though, said he believes there are ways to work through the issue. He noted, for example, that prosecutors allow defense attorneys to see images in a child pornography case but the attorneys must agree not to disclose them publicly.
James Boren, a Baton Rouge criminal defense attorney, said the government routinely uses secret procedures, such as agreements protecting the identity of an informant, and speculated that something similar could be applied in this instance.
“The law has for decades accommodated some secret procedures by the government,” Boren said. “But what we’ve discovered, for example, in the secret procedures they used to prosecute terrorists, when you finally find out what secrets the prosecution had, they are violations of the law, and that’s why they don’t tell us about them.”
LSU law professor Richards and other observers speculated the FBI may have been required to sign a non-disclosure agreement with the third party hired to provide the technique in the San Bernardino case.
Riana Pfefferkorn, a cryptography fellow at Stanford Law School’s Center for Internet and Society, noted that the FBI signed similar agreements with a third party to use so-called “Stingray” technology, which, in effect, impersonates a cellphone tower to pick up phone calls.
She said such third party outsourcing deals raise issues.
“You know it (outsourcing) might end up tying the government’s hands when they obtain tools that will end up being potentially limited in their use to the extent that they are not able to meet federal or state court evidentiary standards for authenticating the tools and how they work,” Pfefferkorn said.
Follow David J. Mitchell on Twitter, @NewsieDave.
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