The Department of Justice, backed by President Trump and a fervent cohort of bipartisan lawmakers, is turning up the heat on Apple as the U.S. government presses the tech giant to unlock the phones of the Pensacola, Fla., shooter authorities say was a terrorist.
The clash comes as top U.S. officials, including Attorney General William Barr, have been pushing large tech companies to give law enforcement special access to private devices, like cellphones and computers, amid criminal investigations.
Barr has been beating the drum against Big Tech for months, arguing the companies are kneecapping vital criminal investigations as they insist on keeping their devices locked down. But the tech industry sees Barr — alongside Republican and Democratic allies — as unfairly seizing on the Pensacola investigation to bring the issue to the forefront again.
In a tweet on Tuesday, Trump lashed out at Apple, knocking the company for refusing to unlock phones “used by killers” after the company declined to unlock devices used by the gunman at last month’s shooting.
“We are helping Apple all of the time on TRADE and so many other issues, and yet they refuse to unlock phones used by killers, drug dealers and other violent criminal elements,” Trump tweeted Tuesday evening, echoing comments made earlier in the week by Barr.
During a press conference on Monday, Barr accused Apple of failing to provide “substantial assistance” to the FBI in its investigation of the Pensacola shooting, which killed three U.S. Navy sailors and injured eight more in early December. He said investigators have determined it was an “act of terrorism.”
“This situation perfectly illustrates why it is critical that investigators be able to get access to digital evidence once they have obtained a court order based on probable cause,” Barr said. “We call on Apple and other technology companies to help us find a solution so that we can better protect the lives of Americans and prevent future attacks.”
In a lengthy statement on Monday night, Apple pushed back against Barr’s assessment of the situation, pointing out the company has already turned over reams of data about the shooter to the government, including “iCloud backups, account information and transactional data for multiple accounts.”
Apple said it has been assisting with the FBI’s investigation since December but that it only received a subpoena related to information on the shooter’s second phone on Jan. 8, “which we responded to within hours.”
Lawmakers on both sides of the aisle, particularly hailing from the Senate Judiciary Committee and the state of Florida, are furious that the company is refusing to open the iPhones that belonged to the Pensacola gunman, a Royal Saudi Air Force member named Ahmed Mohammed al-Shamrani. The FBI says it has not been able to access either of al-Shamrani’s phones, one of which was shot with a bullet.
“Apple ought to do it,” Sen. Rick Scott (R-Fla.) told The Hill on Tuesday. “Think about it: If it was [Apple CEO] Tim Cook’s son, wouldn’t he be rushing to figure out how to get this done?”
Scott said he met with Defense Secretary Mark Esper on Monday morning to discuss pressing Apple to unlock the phones. He has also been in communication with the Justice Department as it moves forward with the Pensacola investigation.
And the other Florida senator, Sen. Marco Rubio (R), claimed Apple is not living up to its reputation as a tech company with morals.
“Apple likes to say they engage on issues because companies ‘should have values,’ ” Rubio tweeted. “We will soon find out if their values include helping investigate a terrorist attack, on U.S. soil, that took the lives of Americans serving us in uniform.”
The debate over encryption does not fall neatly along party lines. While some Democrats are backing Apple’s concerns around violating user privacy and civil liberties, others say large tech firms have an obligation to help out when the stakes are so high.
Sen. Richard Blumenthal (D-Conn.), a former prosecutor who sits on the Senate Judiciary Committee, told reporters that Apple needs to do more to help the FBI.
“I think Apple should provide more assistance than it has now,” Blumenthal said. “It has an obligation to do it.”
“I think that it will create a backlash on … all of the issues surrounding encryption if it fails to give more help,” Blumenthal warned. “I think they should help unlock the phones.”
For tech industry sources and national security lawmakers who were involved in investigating the 2015 San Bernardino, Calif., terrorist attack, there is a sense of deja vu. That attack sparked a legal battle that pitted Silicon Valley against the U.S. government as they wrangled over whether tech companies should build special software to allow law enforcement access to encrypted devices.
The legal showdown, during which the Obama administration attempted to force Apple to unlock a mobile phone recovered from one of the two deceased shooters, was ultimately resolved when the FBI hired an outside firm to unlock the phone without Apple’s help.
But the wounds still run deep from San Bernardino, and some lawmakers say they do not want a repeat.
“I know this is a complex question that was ripened previously,” Rep. Matt Gaetz (R), a Florida lawmaker with libertarian leanings, told The Hill. “And in that circumstance, the government was able to get into the phone system in the absence of Apple having to create a key to unlock their phone.”
“I’m hopeful that happens again,” Gaetz said, adding that he doesn’t want the country to choose between privacy and national security.
The government obtained a warrant to access the contents of al-Shamrani’s phones, which they say could offer better insight into his motivations and whether he worked in coordination with others when he went on a rampage at the Pensacola military base.
“A federal judge has authorized the Department of Justice to access the contents of the dead terrorist’s phones,” agency spokesman Marc Raimondi said. “Apple designed these phones and implemented their encryption. It’s a simple, ‘front-door’ request: will Apple help us get into the shooter’s phones or not?”
But tech experts say it is deeply complicated, and potentially impossible, to build a loophole that only law enforcement could use.
“If Apple does find that they can build an exploit and provide it to the FBI, it’s fairly unrealistic to assume that Apple will be able to maintain sole control of that in perpetuity,” Hannah Quay-de la Vallee, a senior technologist with the tech-backed think tank the Center for Democracy and Technology, told The Hill. “It’s a very dangerous precedent to set.”
How Apple and law enforcement resolves the matter is unclear as pressure mounts on both sides.
“It is imperative that Apple and the FBI balance device security with public safety and work together to ensure law enforcement has sufficient access to tools to investigate terrorism and criminal activity,” said Sen. Marsha Blackburn (R-Tenn.) in a statement to The Hill.