Attorney General William Barr. Photo by Shealah Craighead, courtesy The White House.
Attorney General William Barr and Apple CEO Tim Cook have a lot to offer one another. For instance, Cook might give Barr a subscription to The Wall Street Journal, and Barr could reciprocate with advice about how to exploit a tragedy.
The tragedy in question is the assault last month that killed three service members and wounded eight at the naval air station in Pensacola, Florida. Barr announced Monday that the shooting was an act of terrorism carried out by a Saudi aviation student. The student, Mohammed Saeed Alshamrani, died in a gunfight with authorities following the attack.
Authorities have determined that Alshamrani, 21, acted alone, Barr told the media. But in the course of investigating the attack, American law enforcement identified 21 other Saudi cadets in this country for training who possessed extremist materials, had accessed child pornography or both. All 21 cadets were reportedly recalled to their home country this week.
Barr’s announcement would have closed the case, had he not taken the opportunity to launch a gratuitous attack on Apple as part of a longstanding beef between law enforcement and the tech company. Alshamrani left behind two cellphones, Barr said. He claimed Apple had provided no “substantive assistance” in unlocking them.
Apple promptly disputed Barr’s claim. Moreover, nobody disputes that Apple complied with law enforcement demands for data stored on its servers. The company turned over iCloud backups, transaction data and account information as requested. Apparently this information, along with what investigators compiled from other sources, was enough to let them determine that Alshamrani acted alone.
Why, then, was it so urgent that Apple help break into the cellphones that Barr chose to apply such public pressure? Apart from fishing to see where Alshamrani’s contacts might lead them and their Saudi counterparts, it appears the Justice Department mainly wanted to conduct sociological research into how Alshamrani came to be radicalized. That is hardly a reason to draft Apple into their project.
Less than a day after Barr’s press conference, The Wall Street Journal found numerous experts who said many vendors offer tools that would likely let investigators hack into Alshamrani’s phones anyway. The experts told the Journal that law enforcement agencies can buy such tools for $15,000 or less. If the phones’ contents mattered – and if law enforcers felt they had enough legal authority – they could have likely accessed those contents anyway.
Barr’s approach to the subject may be cynical, but it isn’t stupid. His department did not go to court to try to force Apple to do what they want it to do. This approach stands in sharp contrast to the Justice Department under Obama administration Attorney General Loretta Lynch. During Lynch’s tenure at the Justice Department, the FBI sought court orders to force Apple to hack its own phones after a 2015 terrorist attack, only to back down when Apple resisted. The FBI later found a private vendor, which some have suggested was an Israeli firm, to hack the phone for it. Nothing significant was on the device.
Barr likely realizes that absent new legislation from Congress, his department’s prospects of prevailing against Apple in court are not very good. The timing is also particularly awkward. Days after the Pensacola attack, the nation’s secret intelligence court excoriated the FBI for misleading it in requesting warrants to spy on a member of President Trump’s 2016 campaign. Barr himself commissioned the U.S. attorney for Connecticut, John Durham, to investigate the origins of the misbegotten inquiry into supposed collusion between the campaign and Russia, which led to a two-year special counsel’s probe that ultimately turned up no such thing. Durham’s investigation may wrap up as soon as this spring.
These are the law enforcers for whom Barr demands that Apple create tools to override and examine the private data of the 2.2 billion iPhones that have been sold, less a few antiquated unencrypted models still in service. These are the law enforcers to whom he expects Apple to entrust such tools. Just about the only parties clamoring to give law enforcement these tools are law enforcement agencies themselves.
Apart from giving Barr that gift subscription, Cook should disregard Barr’s whining. Maybe he could give the attorney general a piece of advice in return: If you think you deserve a key to every locked iPhone you want to examine, take your argument to Congress. Otherwise, it’s case closed.