If the FBI takes the position that encrypted iPhones and other secure electronic devices pose a significant impediment to law enforcement, Susan Hennessey and Benjamin Wittes write at Lawfare, it is reasonable to demand that it does “more than cry wolf.” The FBI should “show us the cases in which the absence of extraordinary law enforcement access to encrypted data is actually posing a problem.”
And in the last couple weeks, the authors argue, the FBI “has shown some serious wolf.” First, they cite, FBI Director James Comey’s following testimony to Congress:
“A woman was murdered in Louisiana last summer, eight months pregnant, killed, no clue as to who did it, except her phone is there when she's found killed. They couldn't open it, still can't open it. So the case remains unsolved.” (The discussion is available here starting at 31:00.)
Then came the filing in the San Bernardino case this week. Note that this is a case that has a potentially serious ISIS link. The FBI has been sitting on one of the shooter’s phones for more than two months, unable to open it. It wants Apple’s help to determine “who [the shooters] may have communicated with to plan and carry out the IRC shootings, where Farook and Malik may have traveled to and from before and after the incident, and other pertinent information that would provide more information about their and others’ involvement in the deadline shooting.”
This is, in other words, a law enforcement and intelligence interest of the highest order: involving knowing for criminal justice purposes who may have been involved in an attack that took place within the United States and for prospective purposes who may be planning other such attacks.
For the Lawfare authors, these two cases are compelling evidence that strong security on consumer devices poses a serious enough problem to justify weakening device security for everyone.