FEDERAL JUDGE KEEPS FBI’S IPHONE HACKERS, MONEY PAID, SECRET
Do you remember the battle that took place two years ago after a terrorist attack in California? It was between the Justice Department and the technology giant Apple. Do you remember that the battle suddenly ended, and that it was because the FBI had paid undisclosed hackers to get around Apple? Regardless of your recollection, there is a lively reminder now of those events and their ongoing importance, as a federal Judge has ruled that the FBI does not have to disclose the identity of a private hacking group that unlocked an iPhone used by an alleged terrorist who helped kill 14 people, nor does it have to reveal how much it paid for the privilege.
FBI AND APPLE HAD SQUARED OFF ON EPIC LANDMARK LEGAL BATTLE OVER PHONE ACCESS
This story largely disappeared for some time, which is surprising given that it gained some serious attention as the terrorist attack was still fresh in the public’s eye, and that it involved increasingly adversarial commentary between the FBI and Apple, as Apple was understandingly reluctant to hand over user access to its widely used iPhone. But that potentially epic legal battle simply disappeared when the FBI paid some anonymous individual or group an unknown sum to hack the phone for them.
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Three news organizations — USA Today, The Associated Press and Vice Media — sued under the Freedom of Information Act to try to force the FBI to reveal the amount of the payment and the identity of the company that received it, but U.S. District Court Judge Tanya Chutkan ruled Saturday that information is exempt from mandatory disclosure under the landmark transparency statute.
LEGAL BATTLE DISAPPEARED AFTER FBI PAID HACKERS TO UNLOCK PHONE WITH STILL UNKNOWN METHOD
The Justice Department waged a high-profile court battle to force Apple to help unlock the iPhone 5c, arguing that accessing the data on it was important to thoroughly investigate the 2015 shooting spree at a county health department office in San Bernardino, California. However, government lawyers abruptly abandoned the court fight in March 2016 because investigators managed to access the phone. It quickly emerged that the FBI had paid a private firm to unlock the device.
The FBI refused to identify the company did the work or how much it was paid, although then-FBI Director James Comey said at a conference last year that the cost was more than he was expected to make in salary during the remainder of his term as head of the FBI — approximately $1.4 million. (President Donald Trump fired Comey in May with more than six years to go in his 10-year term.)
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In her ruling, released Saturday night, Chutkan said the name of the firm that managed to crack the iPhone and the price paid to do so are properly classified national security secrets and constitute intelligence sources or methods that can also be withheld on that basis. She also ruled that the amount paid for the hack reflects a confidential law enforcement technique or procedure that is exempt from disclosure under FOIA.
The Obama-appointed judge concluded that Comey’s public estimate of the cost of the hack didn’t undercut the FBI’s legal authority to withhold the precise figure. “Comey provided only a general estimate, rather than the specific price paid for the tool. He admitted himself that in making that estimate, he was ‘just winging that,'” Chutkan wrote. Sen. Dianne Feinstein (D-Calif.) said earlier this year that the FBI paid $900,000 to break into the phone, but the judge said her comment also did not amount to an official disclosure by the executive branch. “Even if Senator Feinstein was correct that the FBI paid $900,000 for the tool, Director Comey did not acknowledge or verify Sen. Feinstein’s comment,” Chutkan noted. Chutkan also said releasing the name of the company involved could put the company at greater risk of being hacked itself.
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“It is logical and plausible that the vendor may be less capable than the FBI of protecting its proprietary information in the face of a cyber-attack. The FBI’s conclusion that releasing the name of the vendor to the general public could put the vendor’s systems, and thereby crucial information about the technology, at risk of incursion is a reasonable one,” the judge wrote. Chutkan did side with the news outlets on one point. She rejected the government’s argument that the purchase price could be protected from disclosure as confidential business information.
However, that finding appears to be of no consequence since the judge ruled that the government has other grounds to withhold the information. A lawyer for the news organizations did not immediately respond to a request for comment. Spokespeople for the Justice Department and FBI also did not immediately respond to messages seeking comment. Comey said last year that the tool the FBI purchased works only on an iPhone 5c running iOS 9. FBI officials say more modern phones are increasingly inaccessible to them due to the advent of default encryption on most models.