The statement did not specifically mention Apple by name. After appearing on Lawfare, the letter was issued as a news release on the FBI’s website.
Apple has refused to help the FBI unlock the iPhone, getting support from some in the tech industry and privacy advocates, such as former National Security Agency contractor Edward Snowden, even as some victims’ families and Republican presidential candidate Donald Trump urged the company to do what the FBI wants. And, last week, the Justice Department filed a motion in federal court requesting an order to make Apple comply.
“We have awesome new technology that creates a serious tension between two values we all treasure — privacy and safety,” Comey wrote. “That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before.”
Considering that the government has gone to court to force Apple to disable the feature that wipes data from the phone after 10 incorrect password tries, it was unclear what Comey meant by having the dispute resolved “by the American people.” Both Apple and the government have been openly attempting to rally public opinion to their side, however, with Justice Department lawyers accusing the company of putting its “brand marketing” ahead of the law.
Comey’s statement came not long after Reuters reported that some victims of the Dec. 2 attack will file a court claim supporting the government’s attempts to make Apple help unlock the iPhone.
“They were targeted by terrorists, and they need to know why, how this could happen,” Stephen Larson, who represents some of the victims, told the news service.
This is not the first time Comey has urged Apple to act.
“It is a big problem for law enforcement armed with a search warrant when you find a device that can’t be opened even though the judge said there’s probably cause to open it,” Comey said Feb. 9. “… It affects our counterterrorism work. With San Bernardino, a very important investigation to us, we still have one of those killers’ phones that we have not been able to open. And it’s been over two months now. We’re still working on it. What we would like is a world where people are able to comply with court orders. ”
A U.S. magistrate has ordered Apple to help the FBI unlock the phone, used by Syed Farook, who killed 14 people in San Bernardino with wife, Tashfeen Malik, before the couple was killed by police. Apple chief executive Tim Cook, however, has resisted calls to act, saying it has “implications far beyond the legal case at hand.”
“The FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation,” Cook wrote in a statement on Feb. 16. “In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession.” He added: “The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.”
Comey has resisted such arguments. “It’s not about us trying to get a backdoor, a term that confuses me, frankly,” he said on Feb. 9. “I don’t want a door, I don’t want a window, I don’t want a sliding glass door. I would like people to comply with court orders.”
Here’s the complete statement from the FBI, first posted on Lawfare:
The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message. It is about the victims and justice. Fourteen people were slaughtered and many more had their lives and bodies ruined. We owe them a thorough and professional investigation under law. That’s what this is. The American people should expect nothing less from the FBI.
The particular legal issue is actually quite narrow. The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve. We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it. We don’t want to break anyone’s encryption or set a master key loose on the land. I hope thoughtful people will take the time to understand that. Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t. But we can’t look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead.
Reflecting the context of this heart-breaking case, I hope folks will take a deep breath and stop saying the world is ending, but instead use that breath to talk to each other. Although this case is about the innocents attacked in San Bernardino, it does highlight that we have awesome new technology that creates a serious tension between two values we all treasure — privacy and safety. That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before. We shouldn’t drift to a place—or be pushed to a place by the loudest voices—because finding the right place, the right balance, will matter to every American for a very long time.
So I hope folks will remember what terrorists did to innocent Americans at a San Bernardino office gathering and why the FBI simply must do all we can under the law to investigate that. And in that sober spirit, I also hope all Americans will participate in the long conversation we must have about how to both embrace the technology we love and get the safety we need.