By Gabrielle King

 

The terrorist attack in San Bernardino, California was perpetrated by Syed Rizwan Farook and his wife, Tashfeen Malik. After the attack, in order to access the contents of Syed Rizwan Farook’s Apple iPhone, the FBI utilized a third party to unlock the cell phone. Apple had refused to assist the FBI in this matter. Now, in 2017, media companies want to learn how the FBI was able to unlock the phone, including the details surrounding this confidential third party who assisted the FBI.

 

As a result of the FBI’s success in unlocking the San Bernardino shooter’s phone, they faced a lawsuit, brought by several media companies such as The Associated Press, Vice Media, and Gannett, to uncover details on how the FBI accomplished this. See Eric Tucker, FBI: Hacking tool info could be of use to ‘hostile entities’, U.S.News (Jan. 30, 2017). The lawsuit was brought under the Freedom of Information Act, which allows for the public to access information belonging to the federal government by generally requiring agencies to make information available to the public. 5 U.S.C. § 552. There are certain exceptions, including “matters that are (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). National security is important when deciding whether certain records and governmental information should be released to the public. The statute even has a subsection specifically marked for agencies of the federal government that are a part of the intelligence community.

 

In January of 2017, the FBI released records and documents in response to the lawsuit. However, the documents were heavily redacted and censored. They even kept the third party’s identity private. This information is exactly what the media companies were trying to compel the FBI to disclose under the Freedom of Information Act.

 

Later in the month, the FBI defended their decision to maintain the secrecy of their documents because they argued that the “information could be exploited by “hostile entities” if released to the public.” See Eric Tucker, FBI: Hacking tool info could be of use to ‘hostile entities’, U.S.News (Jan. 30, 2017). It would appear that this information could certainly be useful to other entities. Before the FBI accessed the contents of the phone, it was presumed that Apple would be the only one able to unlock the phone, seeing as it is their model. However, the FBI was ultimately able to unlock and enter the iPhone that was protected by Apple’s encryption. Notably, a third party was able to do this and if the identity of this third party is disclosed, it could potentially create national security concerns. While Apple was protecting individual civil liberties by refusing to assist the FBI in unlocking Syed Rizwan Farook’s cell phone, there could potentially be more hacking and unwanted access to individuals’ phones if this information is revealed to the public at large. On the other hand, media companies want to have access to these details in order to assess Apple’s security measures.

 

The Act states that one reason for withholding information under this section is if “the agency reasonably foresees that disclosure would harm an interest protected by an exemption …” 5 U.S.C. § 552 (a)(8)(A). It will be interesting to see whether the FBI’s withholding of this information will be justified under this exception.

 

Student Bio: Gabrielle is a Staff Member of the Journal of High Technology Law. She is currently a 2L at Suffolk University Law School. She holds a B.A. in Politics and Law from Bryant University.

 

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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