Weeks before the FBI sought a court order forcing Apple to help it break into an iPhone used by one of the San Bernardino gunmen, a sister agency in the Department of Justice was already using an Israeli security firm's technology to attempt to crack a similar device.
The FBI and the DOJ have repeatedly insisted that they had no other option but to force Apple to help them crack an iPhone used by the gunman Syed Rizwan Farook, at least until an outside party offered assistance earlier this week.
“We have engaged all parts of the U.S. government” to find a way to access the device without Apple’s help, FBI Director James Comey told lawmakers in early March. “If we could have done this quietly and privately, we would have done it.”
But more than two weeks before a judge ordered Apple to assist the FBI, the Drug Enforcement Administration, also a division of the DOJ, filed a warrant request in a Maryland court asking to use technology from security firm Cellebrite to defeat the password protections on a suspected drug dealer's iPhone.
The warrant request noted that "Apple devices hold a unique encryption" that often only Apple can bypass, suggesting that the DEA was unsure if Cellebrite's method would work. But it still seems at odds with the DOJ's insistence in the San Bernardino case that it knew of no possible alternatives to access the device.
A Maryland judge approved the search warrant on Feb. 16, the same day California Magistrate Judge Sheri Pym ordered Apple to provide technical assistance to the FBI in the San Bernardino case.
The FBI wanted Apple's help to do the the same thing investigators were trying to do in the Maryland case -- defeat the password protections on an iPhone. Cellebrite is reportedly the "outside party" now assisting the FBI in the California shooting case.
An FBI spokesman declined to comment on the identity of the outside party or the DEA's use of Cellebrite.
The DOJ has based its case against Apple on the All Writs Act, a 1789 law that allows courts to "issue all writs necessary or appropriate" to implement the law, but only when they have no other legal options available.
In the Maryland drug case, the warrant application describes how Cellebrite would be used to defeat password protections on a suspect's iPhone 6 and other smartphones.
"The device and all readable and searchable contents will be attempted to be downloaded to a 'CellBrite' [sic] device," the Maryland warrant application says. "The 'CellBrite' device allows the user to bypass any password protected utility on the phone."
The iPhone contents "will then be copied to a readable computer disc" and reviewed by the court, the warrant application says.
Farook's iPhone was a 5C model, while the Maryland suspect's device was a 6 series phone.
Critics of the FBI's case against Apple are now questioning whether the agency should have moved forward with its case without disclosing the possibility of using Cellebrite to hack Farook's phone.
The FBI and DOJ now appear to be backing down in the Apple case because of public opinion and a possibility they won't get the court precedent they seek, said Evan Greer, campaign director for digital rights group Fight for the Future.
"The FBI’s last minute excuse is about as believable as an undergrad who comes down with the flu the night before their paper is due," Greer said via email. "They should come clean immediately."