Since the start of the most recent encryption debate, lawful hacking has been pitched by many experts as a more desirable alternative to mandating that companies build government backdoors into their products.
Academics have explored legal and technical frameworks for letting police and government agencies hack into suspects' devices by finding and exploiting vulnerabilities, which would allow investigators to collect crucial evidence without catastrophically damaging the security of average users by forcing companies to weaken encryption.
But during a congressional hearing of the House Energy and Commerce Committee on Tuesday, the FBI's executive director of technology Amy Hess dismissed the idea outright, saying that agents lack the specialization necessary to effectively harness those hacking capabilities—and that it would be impossible for the Bureau to develop them.
"These types of solutions that we may employ require a lot of highly-skilled, specialized resources that we may not have immediately available to us," Hess said when asked by Rep. Diana DeGette (D-CO) why the FBI can't use its own technical resources toward overcoming encryption without Apple or other companies' help.
But when asked whether the FBI could simply develop those resources to up its hacking game, Hess responded, "I don't see that as possible."
"I think that we really need the cooperation of industry, we need the cooperation of academia, we need the cooperation of the private sector in order to come up with solutions," she said.
DeGette's questions were alluding to the high-profile case in San Bernardino, where after a long and public fight with Apple, the FBI used a solution provided by a third party contractor to unlock the iPhone of deceased gunman Syed Farook. The eleventh hour breakthrough led the government to withdraw an unprecedented court order compelling Apple to build software capable of disabling the phone's security features, which it had argued was necessary to gather "crucial evidence" from the device.
Senators Dianne Feinstein (D-CA) and Richard Burr (R-NC) have since revealed a widely-mocked encryption bill that would legislate the same thing, effectively mandating that companies redesign their products to be less secure so that government agencies can get access with a court order.
Hess' dismissal of hacking is odd considering the FBI recently asked Congress for an additional $38 million in anti-encryption funds, which it says it will specifically use to "develop and acquire tools for electronic device analysis, cryptanalytic capability, and forensic tools." If approved, it would bring the Bureau's total "going dark" war chest to $69.3 million.
"Their position is, if we pass a law for backdoors, we don't need to hide anymore."
That's led some experts to question the government's handling of the San Bernardino case, and why the FBI insists it can't use those resources to rise to the challenge.
"The fact that the FBI had to go to a third party indicates that the FBI either had or devoted insufficient resources to finding a solution," said cryptography expert Matt Blaze during a second panel of the hearing. "I think this is a solvable problem."
It's also a known fact that the FBI has been hacking for well over a decade. A more recent and extreme example is the controversial "Playpen" case, where agents took over a hidden site and identified its users by infecting thousands of computers around the world with malware—all using a single warrant. The FBI has also secretly enlisted the help of researchers at Carnegie Mellon University by exploiting a vulnerability they found in the anonymity software Tor.
But in all of those cases, the hacking techniques are a closely guarded secret. And those secrets could be revealed if a judge orders the FBI to do so, making the technique less effective. The reason the FBI wants backdoors instead of hacking is so it can have something universal that can be used out in the open, said Chris Soghoian, the ACLU's principal technologist.
"I think what they're saying is, we don't have the resources to hack every target. So we want a surveillance technique that we won't need to keep secret," Soghoian told Motherboard. "Their position is, if we pass a law for backdoors, we don't need to hide anymore."
The government is also keenly aware that phones and devices will only get more secure over time, and that means attracting major hacking talent to keep pace. That's a challenge when you consider that industry jobs tend to pay far more for the same skillset. The federal government's drug testing policies also tend to disqualify many younger hackers who enjoy the occasional toke.
Absent that, the FBI is stuck paying third party contractors to do most of its hacking dirty work.
"I don't think exploits are going to get cheaper over time," said Soghoian. "I think what the government is saying is that in the long-term, we can't keep sinking money into this."
Top: L to R: Hess, NYPD Chief Thomas Galati of the Intelligence Bureau, and Indiana State Police Captain Charles Cohen Commander, Office of Intelligence and Investigative Technologies, swear in before testifying at a April 19, 2016, House Energy and Commerce Subcommittee hearing on data encryption policies between the cellphone industry and law enforcement.