The FBI might be able to copy the hard drive of an iPhone used by a mass shooter without triggering the device's auto-erase functions, thus eliminating the agency's need to take Apple to court, a company executive said Tuesday.
Instead of forcing Apple to help defeat the iPhone password security that erases the device's contents after 10 unsuccessful attempts, it may be possible to make hundreds of copies of the hard drive, said Bruce Sewell, Apple's senior vice president and general counsel.
Apple doesn't know the condition of the iPhone used by San Bernardino mass shooter Syed Rizwan Farook, so it's unclear if mirroring the hard drive would work, but it's possible, Sewell said during a congressional hearing.
The suggestion that the FBI attempt to copy the iPhone's hard drive first came from Representative Darrell Issa, a California Republican and former car-alarm entrepreneur.
The design of the older model iPhone 5C may allow investigators to remove its hard drive and make multiple copies, Issa said. Investigators could then run 10 password attempts on each copy until they found the correct password, he said.
"The FBI is the premier law enforcement organization, with laboratories that are second to none in the world," Issa told FBI Director James Comey. "Are you testifying today that you and/or contractors that you employ could not achieve this without demanding that an unwilling partner do it?"
The FBI has explored other options and found none that it believes will work without Apple's assistance in defeating the password protection, Comey said. "We have engaged all parts of the U.S. government" to find ways to gain access to information on the phone without Apple's help, he said. "If we could have done this quietly and privately, we would have done it."
Sewell and Comey both faced tough questions during the hearing, which was focused on the pending court case and on smartphone encryption. Both men largely repeated their talking points from the long-running debate on device encryption, but lawmakers seemed split on whether Apple should honor the FBI's request and Magistrate Judge Sheri Pym's Feb. 16 order requiring the company to comply.
Apple has resisted the court order and called for Congress to set encryption policy, but it hasn't proposed any specific actions, noted Representative Jim Sensenbrenner, a Wisconsin Republican. If Congress acted, it might force Apple to aid in similar investigations.
"I don't think you're going to like what's going to come out of Congress," Sensenbrenner said. "All you've been doing is saying, 'no, no, no, no.'"
Apple ultimately will follow the law, Sewell said. "What we're asking for, congressman, is a debate on this," he said. "I don't have a proposal, I don't have a solution for it, but what I think we need to do is give this an appropriate and fair hearing."
Critics of Apple's position suggested the company is ignoring public safety issues.
Apple and Google, by enabling encryption by default on smartphones running their OSes, are, in effect, setting a U.S. policy that values customer privacy over national security and criminal prosecutions, said Cyrus Vance Jr., district attorney for New York County in New York.
Smartphone security and encryption will eventually lead to a serious problem when entire segments of suspects' lives are shielded from police, Comey told lawmakers.
"I have colleagues and others who are advocating for these evidence-free zones," added Representative Trey Gowdy, a South Carolina Republican. "There are just going to be compartments of life where [law enforcement agencies] are precluded from going to find evidence of anything ... no matter how compelling the government's evidence is."
Several other lawmakers questioned the FBI's demands, saying a court order requiring Apple to write new code to defeat the phone's security could lead to hundreds of similar requests. Vance, the New York prosecutor, said his office is now in possession of 205 locked smartphones that could be used as evidence in criminal cases.
Criminals will find ways to exploit mandated holes in encryption, said Representative Zoe Lofgren, a California Democrat. While the FBI worries about "a world where everything is private, it may be that the alternative is nothing is private," she said.
During the hearing, Comey acknowledged the FBI made a mistake when it asked San Bernardino County, the owner of the phone, to change the password soon after the mass shooting there in December.
Comey disputed the suggestion that the FBI was asking for an encryption key or a backdoor into the phone. "There's already a door on that phone," he said. "Essentially, we're asking Apple, 'take the vicious guard dog away, let us pick the lock.'"