The FBI’s credibility has been challenged by President Trump and members of Congress in recent months.
Its former director, James Comey, admitted handing over government documents to a member of the public to trigger appointment of a special counsel. Comey’s deputy, Andrew McCabe, was investigating Hillary Clinton’s email scandal while McCabe’s wife’s political campaign was receiving financial donations from her associates. Several agents had to be removed from another project because of their open political bias. And evidence suggests that agents used a politically funded hit piece on Trump as a legal document to obtain search warrants from a secret court.
Now a report from the Justice Department’s inspector general finds that the bureau was not transparent about its technical capabilities before suing Apple to unlock an encrypted iPhone.
It happened during the investigation of the San Bernardino mass shooting, when the agency filed suit to force Apple to create custom technology to unlock the phone of killer Syed Rizwan Farook.
Farook and his wife, Tashfeen Malik, murdered 14 people and injured 17 in the Dec. 2, 2015, terrorist attack.
The inspector general’s report said FBI personnel failed to communicate to agency leadership they were “very close to opening the phone.”
In court arguments, the agency stated it “cannot access” the contents, when that move apparently was just around the corner.
Comey testified before Congress that, “in substance,” the FBI “was not able to obtain access to data on the Farook iPhone, and then that it would require assistance from the manufacturer, Apple, to do so.”
The U.S. Attorney’s office obtained a court order requiring Apple’s assistance.
Then, abruptly, the prosecutors said they no longer needed help from Apple.
The reason? “Rapidly changing technology.”
Agents knew of an outside contractor who was very close to breaking the iPhone security barriers even while top officials were saying the data would be lost without help from Apple, which was under the unusual constraint of being ordered by a court to develop a piece of software to aid police.
Former FBI Executive Assistant Director Amy Hess “expressed concerns that [a technology division] unit may have had techniques available to exploit the Farook iPhone that certain unidentified … officials did not employ and that these officials were indifferent to the fact that FBI leadership and others were testifying to Congress, and filing affidavits in court, that the FBI had no such capability.”
In fact, the IG pointed out there were intraoffice squabbles going on, and it appears Hess was concerned one official “knew of a solution but remained silent in order to pursue his own agenda of obtaining a favorable court ruling against Apple.”
The IG’s finding was that the agency did not pursue all possible avenues “in the search for a solution.”
“Neither the congressional testimony nor the submissions to the court were inaccurate when made,” the report said. “However, we found that inadequate communication and coordination … caused a delay in engaging all relevant … personnel in the source for a technical solution to the Farook iPhone problem, as well as the outside party that ultimately developed the method that unlocked the phone.”
One FBI executive “expressed disappointment” that an outside vendor had provided a solution and that the case against Apple wasn’t needed.
The case had been perceived as a “poster child” in law enforcement’s challenge with “going dark,” when law enforcement loses the ability to obtain evidence because of advances in technology.
The report said FBI statements in congressional testimony “regarding its capabilities to access the data on the Farook iPhone were based on understandings and assumptions that people and units … were effectively communicating and coordinating from the outset and that [officials] had searched for all possible technical solutions, points that were not borne out by the facts, as we determined them.”
The FBI said it had made some managerial changes to address the concerns.
