Did the FBI Intentionally Bumble the San Bernardino iPhone Investigation?

by | Feb 23, 2016


Over at We Meant Well, always-interesting writer Peter Van Buren provides a funny rundown of the Federal Bureau of Investigation (FBI)’s blunders he suggests prevented it from accessing information on an iPhone connected to the December 2 San Bernardino, California killings. The FBI sure does look like the Keystone Cops with Van Buren’s tale of mistakes that put the FBI into a situation where, to uncover encrypted information from the iPhone, it has to depend on a US magistrate judge ordering Apple, the phone’s manufacturer, to create a means to breach the phone’s information security.

But, is there something more sinister taking place behind the scenes? Governments are renowned for incompetence, so you cannot rule out, barring more information, that a series of blunders did occur. At the same time, blunders in this instance would create a situation that sure is convenient for a US government intent on ensuring it can obtain access to everyone’s encrypted information. The blunders, after all, provided the FBI with a reason to seek the court order in a case where the facts are quite advantageous for the government.

US government lawyers intent on breaking down technological privacy protections should be expected to focus their efforts on a case with facts that would allow their arguments to appeal most to judges in courtrooms as well as to Americans more generally. What facts are better as a starting point for demonstrating the need to require companies to create backdoors to overcome information security than that a backdoor is necessary to uncover information connected to the phone of a terrorist responsible for mass murdering his coworkers at a holiday party?

Manhattan, New York District Attorney Cyrus R. Vance, Jr. is among the many prosecutors across America who are rooting for the court order against Apple to open the floodgates, allowing US, state, and local government agents to access private information connected to many more phones and other devices. Alyssa Newcomb at ABC News reports Vance’s claim that his prosecutors alone have 175 iPhones with information they want to access but cannot because of encryption. In a Thursday New York Times editorial, Vance is not shy in explaining his desire that the type of privacy-stripping sought in the Apple case should be available in criminal prosecutions generally:

But as the encryption debate zeroes in on the cowardly terrorist acts committed in San Bernardino, we should also remember that Apple’s switch to default device encryption affects virtually all criminal investigations, the overwhelming majority of which are handled by state and local law enforcement. Our agencies do not have the same resources as the federal Justice Department, which is why a national, legislative solution is so urgently needed.

The court order against Apple may indeed be used as a major talking point in a campaign to advance privacy-stripping legislation in the US Congress. The order holds the potential as well to be a big step toward achieving the same result while bypassing the US legislative branch entirely.

Did the FBI bumble its way into obtaining a court order against Apple? If it did, then the FBI’s blunders appear to potentially be very fortuitous for the FBI and other police and prosecution departments across America that are seeking to thwart technology, including encryption, that secures individuals’ private information.


  • Adam Dick

    Adam worked from 2003 through 2013 as a legislative aide for Rep. Ron Paul. Previously, he was a member of the Wisconsin State Board of Elections, a co-manager of Ed Thompson's 2002 Wisconsin governor campaign, and a lawyer in New York and Connecticut.

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