Rep. Darrell Issa, R-Calif., challenged FBI Director James Comey today on whether the FBI had pursued every alternative to accessing the San Bernardino shooter’s phone before going to Apple, which has challenged a Federal court order that would force the company to unlock the phone.
“We would not be litigating if we could,” Comey told the House Judiciary Committee, when asked if the agency had any other way of getting into the phone. “We have engaged all parts of the U.S. government to see, ‘does anybody have a way–short of asking Apple to do it–with a[n iPhone] 5C running IOS 9 to do it?’ And we do not.”
Issa, however, questioned exactly which alternative methods the FBI had explored. He asked whether the FBI had requested Apple’s source code, to which Comey responded that it had not. Issa then dug into the technical specifics of the case and its options.
“Does the 5C have non-volatile memory in which all of the encrypted data and the selection switches for the phone settings are located are all located in that encrypted data?” he asked.
Comey did not know the answer.
“It does,” Issa answered for him. “That means that you can in fact remove from the phone all of its memory–all of its non-volatile memory, its disk drive, if you will–and set it over here and have a true copy of it that you could conduct an infinite number of attacks on.”
Throughout his allotted five minutes of questioning, Issa challenged the idea that the FBI had done all it could to access the phone before turning to Apple. Though he admitted that he did not know whether there was an alternative to serving Apple a court order, Issa emphasized that it was the FBI’s job to exhaust all other alternatives.
In fact, in later testimony, Issa asked Bruce Sewell, the senior vice president and general counsel for Apple, whether the method he suggested were possible.
“I believe so,” Sewell said. “We don’t know what the condition of the phone is, and we don’t know what the condition of the RAM is.”
Though not a definitive answer, Sewell’s statement gives credence to the fact that the FBI may not have looked at all alternatives before serving Apple the court order. And as Susan Landau, a professor at Worcester Polytechnic Institute, testified, it is on the FBI and law enforcement to develop the technological wherewithal to utilize those alternatives.
“I came out of the security business, and this befuddles me that you haven’t looked at the source code, and you really don’t understand the disk drive,” Issa said to Comey. “How can you come before this committee and before a Federal judge, and demand that somebody else invent something if you can’t answer questions that people have tried this?”
Comey has repeatedly stated that he is not an expert on technical issues. That very lack of expertise enables those who oppose the FBI’s stance to question it as Issa has. Today, Comey admitted the agency knew of no other means of accessing the phone, though the FBI would be open to those options.
“Apple has never suggested to us that there’s another way to do it other than what they’ve been asked to do in the All Writs Act,” he said.
Throughout the hearing, Comey was confronted with opposition to the FBI and the court order, such as the potential for a dangerous legal precedent and the mistakes made by the FBI and San Bernardino County in the early investigation of the phone.