While the FBI has formerly claimed that its order for Apple to create a “backdoor” into the iPhone was only to extract data from one specific phone used by a suspect in the San Bernardino shooting, it appears that the agency is retreating from that argument as FBI Director James Comey admitted it could set a precedent for future cases.
During a House Judiciary Committee hearing Tuesday, Rep. Ted Poe (R-Tx.) questioned Comey on what would stop the FBI from using the “backdoor” software created by Apple on other phones if it wins the case.
“Apple develops the software and gives it to [you for] the phone, but that’s not the only phone in question, is that correct?” Poe said. “There are other phones that the FBI has in lawful possession that you can’t get into?”
Comey replied, “Sure, law enforcement increasingly encounters phones [in] investigations all over the place that can’t be unlocked.”
Poe asked how many other phones are in lawful possession of the FBI that the agency cannot extract data from with the current software. Comey said there were several, and he did not know the exact number.
“What would prevent the FBI from then taking that software and going at all of those other phones you have, and future phones you seize?” Poe asked.
“This seems like a small difference, but I think it’s actually kind of a big difference,” Comey replied. As he continued, he said that the software would only be used on iPhones in the same predicament as the one used the San Bernardino shooting suspect.
[pull_quote_center]The direction from the judge is not to have have Apple get us into the phone, it’s to have Apple turn off—by developing software that will tell the phone to turn off—the auto erase and the delay features, so that we can try and guess the password. So in theory, if you get another 5c running iOS9, which is what makes this relief possible, I mean it when I say it’s obsolete, because I understand that [with the iPhone 6] there is no door for us to even try to pick the lock on, so it wouldn’t work, but if there were phones in the same circumstances, then sure, you could ask for the same relief from a court to try and make effective the search warrant.[/pull_quote_center]
[RELATED: Apple Rejects Government Order to Create ‘Backdoor’ for iPhone]
Comey was later questioned by Rep. Ted Deutch (D-Fl.), who asked about whether the creation of a “backdoor” into the iPhone would make it susceptible to terrorists and child predators.
“When this tool is created, the fear is that it might be used by others and there are many who will try to get their hands on it, and will then put at risk our information on our devices,” Deutch said.
Comey noted, “There would be substantial risks around creating this software.”
[RELATED: Reality Check: Why McAfee Says FBI Really Wants To End Encryption, Not Hack Just One iPhone]
Deutch replied, “If that’s the case that it’s usable in more than one phone and it applies beyond there, then the public safety concerns that a lot of us have [about] if the public got access to our phones and our children’s phones, in that case, those are really valid, aren’t they?”
Comey said it is a valid concern, but claimed that it’s a question “we’re going to have litigation about is how reasonable is that concern,” adding “slippery slope arguments are always attractive.”
Comey acknowledged that the software may not be used for only the iPhone in the San Bernardino case, when he was questioned by Rep. Bob Goodlatte (R-Va.)
“It won’t be a one-time request. It’ll set precedent for other requests from the FBI and any other law enforcement,” Goodlatte said.
“Sure, potentially,” Comey said.
[RELATED: Apple Policy Says They Won’t Unlock Devices for Government Requests]
Apple General Counsel Bruce Sewell was later added to the hearing, and Comey said that in regards to the risks that would come with the creation of the software, “It’s not [Apple’s] job to watch out for public safety. That’s our job.”
Sewell told the committee that the company is not trying to look out for public safety as much as it is protecting its First Amendment rights to free speech and its Thirteenth Amendment rights to deny forced labor as a private citizen.
Sewell said the FBI’s argument that Apple is using the San Bernardino case as a marketing ploy “makes my blood boil.”
[pull_quote_center]This is not a marketing issue, that’s a way of demeaning our argument. We don’t take out billboards for our security. We don’t take out ads for our encryption. We’re doing this because we think it’s the right thing to do. To say that it’s a marketing ploy to to say that it’s about PR really diminishes a very serious conversation that should be about security of the American people.[/pull_quote_center]
[RELATED: FBI Ordered Password Reset on San Bernardino Shooting Suspect’s iPhone]
As previously reported, the FBI admitted in February that it reset the password on the iPhone used by San Bernardino shooting suspect Syed Farook within 24 hours of the shooting.
Apple officials criticized the move, and reportedly claimed that changing the password revoked the company’s access into an auto-backup of the phone. Comey admitted that this was a “mistake,” and claimed that even if the FBI had acted differently, it still wouldn’t have been able to access everything on the phone without Apple’s help.
[RELATED: NY Judge: DoJ Cannot Force Apple to Extract Data from Locked iPhone in Drug Case]
The FBI is currently attempting to use the All Writs Act of 1789 to justify forcing Apple to extract data from iPhones in 12 different cases. In some cases, that involves using existing capabilities to pull contacts and calling information, but in other cases it would require Apple to create new software to break the iPhone’s encryption.
New York Magistrate Judge James Orenstein ruled Monday that in one of the cases, a criminal drug case in Brooklyn, the All Writs Act does not justify “imposing on Apple the obligation to assist the government’s investigation against its will.” While this ruling is not binding in any other court, it does mark the first time a federal judge has ruled in Apple’s favor.
Follow Rachel Blevins on Facebook and Twitter.