Earlier in the year, Apple and the FBI were engaged in a legal showdown to determine whether law enforcement could compel tech companies to circumvent their own security measures during an investigaion. This dispute ended when the FBI broke into an iPhone without Apple’s assistance, leaving the legal issues around the case unresolved. However, the FBI’s announcement that it had broken into the phone only raised new questions about how they managed to pull it off.
USA Today, The Associated Press, and Vice News have filed a Freedom of Information Act(FOIA) lawsuit against the FBI in order to find out more information about how the FBI broke into the iPhone. The news publications are especially interested in obtaining information about the undisclosed third-party who provided technical assistance to the FBI in this case. Soon after the FBI announced that it had unlocked the phone with the help of another party, it was reported that the Israeli company Cellebrite might have assisted the FBI, however the report falls short of certainty.
The lawsuit is specifically seeking to obtain, “records of the publicly-acknowledged business transaction that resulted in the purchase this March of the so-called iPhone access tool.” The filing argues that this information is in the public interest because a public debate erupted across the country once the FBI announced it had broken into the phone. FBI director James Comey has stated the need for an “adult conversation” about whether law enforcement should be allowed to break into encrypted devices.
The news publications also raise the concern that some unknown party also has the ability to break into iPhones. The filing states, “And in order to exploit that vulnerability, the FBI contracted with an unidentified third-party vendor, effectively sanctioning that party to retain this potentially dangerous technology without any public assurance about what that vendor represents, whether the vendor has adequate security measures, whether the vendor is a proper recipient of government funds, or whether it will act only in the public interest.”
The final reason for seeking this information is public oversight of government expenditures. The filing states, “Understanding the amount that the FBI deemed appropriate to spend on the tool, as well as the identity and reputation of the vendor it did business with, is essential for the public to provide effective oversight of government functions and help guard against potential improprieties.”
All three news companies have already filed a FOIA request with the FBI to obtain the records, but the FBI refused to turn over the records citing exemption 7(A). This exemption allows law enforcement agencies to deny FOIA requests if publicly disclosing the information, “could reasonably be expected to interfere with enforcement proceedings.” In its reply to the news agencies the FBI stated, “there is a pending or prospective law enforcement proceeding relevant to these responsive records, and release of the information in these responsive records could reasonably be expected to interfere with enforcement proceedings.”
The filing states that the refusal to release the records is illegal under the FOIA. It states, “Even if parts of the requested documents are properly subject to an exemption, the FBI has an obligation to redact non-exempt portions of the documents and release those portions that are non-exempt under FOIA.” The news publications are asking the court to compel the FBI to release the records and are also seeking to have the FBI pay for the cost of the legal proceedings.
Should the FBI reveal information about the third-party vendor that helped it break into an iPhone? Leave your comments below.