The director of the FBI has conceded that future judges will look to his battle with Apple as a precedent for law enforcement access to locked or encrypted mobile devices, the first time the government has conceded that the implications of the case stretch beyond an investigation into the San Bernardino terrorist attacks.
The ultimate outcome of the Apple-FBI showdown is likely to “guide how other courts handle similar requests”, James Comey told a congressional intelligence panel on Thursday, a softening of his flat insistence on Sunday that the FBI was not attempting to “set a precedent”.
Comey deferred answering legislators’ questions on the implications of a judge ordering Apple to write code permitting the FBI to guess the passcode of an iPhone 5C used by the San Bernardino killer Syed Farook, something Apple has painted as sufficiently wide-ranging to justify its defiance of a court order.
The director repeatedly said he was “not an expert”, but that technical and legal experts had advised him that “technology [is] the limiting principle”, because the particular combination of the outmoded iPhone 5C and its iOS9 mobile operating system limited the application of the requested court order – a claim Apple rejects.
While Comey continued to argue that the FBI needed to seek access to data on the iPhone for its terrorism investigation of San Bernardino, he acknowledged that police departments and district attorneys around the country were also seeking similar access to locked phones and encrypted conversations in ordinary criminal cases.
Manhattan prosecutor Cyrus Vance has said he has a backlog of 175 locked iPhones awaiting the resolution of the Apple-FBI fight, which is almost certain to be decided in high federal courts.
The outcome “will be instructive for other courts”, Comey told the House intelligence committee.
“I don’t know how lawyers and judges will think about what is the limiting principle on the legal side.”
Apple on Thursday morning challenged Comey’s suggestion that the passcode-breaking tool described in the order could be limited in scope to a single iPhone.
The company referred back to CEO Tim Cook’s statements that the underlying code Apple has been ordered to create is highly transferrable to other phones, to the extent that a similar password-cracking program for another device would be virtually the same.
Technologist and Apple operating system expert Jonathan Zdziarski wrote last week that the basics of the tool Apple has been instructed to build require that it work on multiple phones simply to ensure that it works at all. A senior government official told ABC News on Wednesday that many police departments were anxious to exercise the same privilege.