In the San Bernardino case, a third party was able to provide access to the phones. The FBI’s crime lab is hard at work on Alshamrani’s two iPhones—in a truly impressive feat, they apparently have managed to get the devices into operational condition in spite of the fact that Alshamrani shot them. But they are not confident that they can access them. Apple, for its part, has provided access to a great deal of cloud data but declines to provide the means for defeating its encryption on the grounds that there is no way for them to prevent hackers and other criminals from exploiting such a backdoor.
But bad actors outside the government are not the only concern here. There are plenty of bad actors inside our government as well. From the Obama administration’s politicization of the IRS and other federal agencies with easily weaponized investigatory powers to the abuses of surveillance protocols in the investigation of the Trump campaign (“antithetical to the heightened duty of candor” in the sterile language of Rosemary Collyer, the presiding judge at the FISA court), the federal government has shown itself incapable of deploying its awesome powers in an honest and politically neutral fashion.