After refusing to disclose the vulnerability that was used to hack the San Bernardino shooter’s iPhone, the FBI thought it could make up for that by disclosing another iPhone and Mac vulnerability to Apple. There was only one problem: The bug had already been reported to Apple by other parties, and it was already fixed nine months ago.
Vulnerability Equities Process
The FBI must comply with the Vulnerability Equities Process (VEP), which says that the government must not withhold “major” security vulnerabilities from the companies affected by them, with few exceptions.
The VEP policy was put in place in 2010 but enforcement likely began more seriously only in 2014, following Snowden’s revelations and accusations that the government stockpiles zero-day vulnerability for use in surveillance and sabotage.
Last year, the NSA said that it discloses the most serious software flaws “90 percent of the time,” but it didn’t say how long it holds that information before it reports them to the companies. It could very well disclose them after they were already reported by other parties, or even fixed by the vendors of the software products, similarly to what the FBI is doing right now.
FBI’s VEP Loophole
Because the vulnerability being used by the FBI in the iPhone hack could also be used by other hackers to crack potentially millions of other iPhones, the FBI would normally have to disclose it under the VEP policy. However, the FBI may have found a “loophole” in this policy, and it intends to tell the Obama administration that it can’t disclose it because the hack was done by a third party with which the FBI isn’t familiar.
On the face of it, this argument may make some sense, although it’s a little hard to believe that after the FBI has already said it can use the same hack to unlock other iPhones as well, it’s not at least somewhat familiar with how it works.
Court Order-Proof Investigative Techniques?
If we do take at face value the FBI’s argument, then we can assume that when the FBI is familiar with the vulnerabilities, then it should be able to report them. However, this doesn’t seem to be happening, either. In some other cases, the FBI and the Department of Justice are disobeying even direct orders from the courts to reveal the exploits. Instead of revealing their methods, they prefer to drop the cases altogether.
According to the ACLU, the FBI has instructed police departments to hide the use of cell tower simulators from courts. When asked about the source of the information, the police officers were told to say that they got the suspect’s location from “unknown sources.” As it turns out, the FBI had good reason (from its perspective) to try and hide this type of technology, because multiple judges later ruled that such investigation techniques require a warrant.
In another recent case, involving an exploit of Mozilla’s Firefox browser (on which the Tor browser is based), the government again preferred to drop the case instead of complying with the Court order and revealing its hacking methods.
The government's position is interesting when one considers that only recently, the FBI was talking about "warrant-proof" iPhones and saying that Apple is acting like it was above the law because it refused to comply with a Court order. The latest draft of the anti-encryption bill co-sponsored by Senators Dianne Feinstein and Richard Burr also includes text that says "nobody is above the law", and therefore companies must decrypt information when asked to do so. However, it doesn’t look like the government wants to lead by example in complying with Court orders.
The FBI is unlikely to ever reveal the vulnerability used to hack the iPhone in its case against Apple, at least not until it has stopped working. However, if it wants to be seen as properly complying with the Vulnerabilities Equities Process, it will have to actually reveal software flaws that weren’t previously reported (if it does find such flaws).
Lucian Armasu is a Contributing Writer for Tom's Hardware. You can follow him at @lucian_armasu.