C-Span

The FBI is having a rough week in its push to get Apple to assist with criminal investigations.

The government has been trying to use a law from 1789 called the All Writs Act to force the smartphone giant to assist in breaking into an iPhone 5c left behind by San Bernardino shooter Syed Farook. On Monday, a magistrate judge in New York denied the government's request in a similar case involving a drug trafficker's iPhone. Judge James Orenstein wrote in his decision that the government's interpretation of the All Writs Act was unconstitutional and would "upend the separation of powers" by giving the courts a power that only Congress should have.

Meanwhile, in Congress on Tuesday, FBI director James Comey found himself in the hot seat, with many House Judiciary Committee members expressing sentiments similar to Judge Orenstein: that the FBI's attempt to get Apple to write software that compromises the security of its products is a question for lawmakers to address, not judges.

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The FBI wants Apple to write code that would change the iPhone's operating system, turning off a feature that deletes the phone's memory after 10 incorrect passcode attempts, and that makes you wait longer and longer periods of times between attempts. Comey said the FBI could crack the passcode "within 26 minutes" of Apple changing these settings, allowing it to get at the encrypted data inside.

A few of the members of Congress asked if there were other ways to get into the iPhone that wouldn't require Apple engineers to write special code. Comey conceded that "a mistake was made" by the FBI in its investigation, when it asked Farook's employer to change his Apple password. That meant they could no longer get into the phone by forcing it to back up its most recent files to the iCloud.

Congresswoman Judy Chu, of California, asked a question that's been on many of our minds since the case became public: why can't the NSA just hack the San Bernardino shooter's phone?

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"I understand there may be other methods to recover data from a smartphone," Chu said. "Other entities within the federal government may have the expertise to crack the code. Has the FBI pursued these other methods or tried to get help from within the federal government such as from agencies such as the NSA?"

"Yes is the answer," Comey replied. "We've talked to anybody who will talk to us about it."

Because of the way the question was phrased and answered, there's some wiggle room there, but the FBI director certainly implied that the National Security Agency's hackers were consulted. Comey said the FBI has found it impossible to break into this specific device.

"It is possible to break a phone without asking the manufacturer to do it, but we have not found a way to break the [iPhone] 5c running iOS 9," Comey testified.

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He said later that the FBI doesn't have the technological powers that have been ascribed to it on television. ""If we could have done this quickly and quietly without litigation, we would have," he said.

The FBI director also noted that "this is kind of yesterday's problem." He said that the FBI would not be able to use the software tool they're asking for to get into Apple's newer devices, such as the iPhone 6. Apple, however, has refuted that claim. During a background call with reporters last month, a senior Apple exec said the tool that the FBI wants it to build would work on all iPhones, even the newest models.