March 30, 2016

Apple Bites, Part 6: Why Not Use the NSA?

Filed under: Probable Cause — Tags: — Bill @ 10:24 am

AppleCore copyMore than a few people have scoffed at the Federal Bureau of Investigation’s (FBI) apparent inability to independently defeat the zero day safeguard designed and built into the Apple iPhone 5C used by the San Berdo Two  Islamist terrorists.

The scoffers often suggest the FBI should simply have turned to the National Security Agency (NSA), the nation’s codebreakers.  Couldn’t the NSA or other components of the US Intelligence Community (IC) have cracked into an iPhone 5C?

In OpenCdA’s opinion, the answer to the question posed is an unqualified “Yes.”

We also believe there is a reasonable explanation why the FBI handled this case the way it did.

The FBI is probably best known for its role investigating traditional crimes against the United States, stuff like white collar crime, organized crime, bank robberies, public corruption which results in public trials in federal district courts with judges who send offenders to prison if admissible evidence supports a guilty verdict.

But the FBI is also a member of the US Intelligence Community.  In that role, the FBI “… is responsible for understanding threats to our national security and penetrating national and transnational networks that have a desire and capability to harm the U.S.”  This is the FBI’s counterintelligence responsibility.   Handcuffing and prosecuting offenders in court is sometimes the least desired outcome in a foreign counterintelligence case.

In the San Berdo Two case, the FBI was assisting the San Bernardino Sheriff’s Office in a homicide investigation as well as conducting its own criminal investigation which could lead to the arrest and criminal trial of persons as yet unknown on charges relating to international terrorism.   If NSA had been used to successfully break in to the phone,  a criminal court judge might have compelled NSA to identify its technical personnel and disclose its break in method in the public criminal trial. For the NSA to reveal that information in a public criminal trial would compromise  important national security personnel and methods.  Using NSA would have unnecessarily complicated a criminal investigation and any subsequent criminal trials.

There is speculation that the FBI may properly classify the outside contractor’s work, but there is also the possibility that the FBI may also decide the method of cracking the iPhone 5C has little further national security value.

Remember, there are several US state and federal law enforcement agencies that need to crack iPhone 5C’s they hold as evidence.  By using an outside contractor, the FBI may be able to help those agencies obtain evidence admissible in other criminal trials.

In any event, by not going to NSA or any other IC member, the FBI’s using an outside contractor to defeat of the iPhone 5C’s zero day safeguard achieved the FBI’s desired results without compromising national security methods.  It may have damaged Apple’s ability to credibly advertise the security of its iPhones, but that’s Apple CEO Tim Cook’s problem.

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