Apple and the FBI refused to back down in their battle over law enforcement access to iPhones at a Capitol Hill hearing Tuesday, and both told Congress it needs to figure out how to resolve the conflict.
Tuesday was the first time Apple and the FBI had faced off in front of Congress since Apple challenged a court order telling it to unlock the iPhone of San Bernardino shooter Syed Farook.
“This is not about the San Bernardino case. This is about the safety and security of every iPhone in use today,” Bruce Sewell, Apple general counsel and senior vice president, told the House Judiciary Committee.
Sewell said the FBI wanted Apple to weaken the security of its devices by building a software tool capable of breaking the encryption that protected personal information on every iPhone.
“We see ourselves as being in an arms race with criminals, with cyberterrorists, with hackers,” he said.
Sewell objected to the Justice Department’s claim that Apple’s challenge of the court order to unlock the phone of Farook –who along with his wife, Tashfeen Malik, killed 14 people in a terrorist attack in December – “appears to be based on its concern for its business model and public brand marketing strategy.”
“Every time I hear this my blood boils. This is not a marketing issue,” Sewell said. “We do this because protecting privacy is the right thing to do.”
We’re asking Apple to take the vicious guard dog away and let us pick the lock. FBI Director James Comey
The FBI is asking Apple to create software to disable security features on Farook’s phone that destroy data if 10 incorrect passwords are attempted. The FBI hopes to open the phone with a “brute force” computer program that tries all conceivable password combinations until hitting the right one.
“We’re asking Apple to take the vicious guard dog away and let us pick the lock,” FBI Director James Comey told the committee.
Comey conceded that his agency would seek court orders to access other iPhones around the nation if a California judge forces Apple to unlock Farook’s phone. He said that if the FBI won, the agency “of course” would attempt to get Apple to unlock other phones under the All Writs Act, a vague 1789 law that grants courts the power to issue orders not covered by other laws.
He said law enforcement was struggling with a “grave, growing and extremely complex” problem where law enforcement agencies could not access evidence for investigations. He said he thought a time was coming when all conversations and documents would be hidden through encryption.
Comey said the broad policy question of whether and how law enforcement was able to obtain data encrypted on people’s devices should not be decided by the FBI or by the courts.
“I think there is a huge role for Congress to play,” he said.
That’s one of the few things the FBI and Apple agreed on. Apple executive Sewell said, “Ultimately Congress must decide this issue.”
Rep. Jim Sensenbrenner, R-Wis., pressed Sewell on what exactly Apple think Congress should do. Sensenbrenner said Apple was not offering any legislative solution to the problem.
“All you have been doing is saying no, no, no, no,” he said.
Sewell said Apple didn’t have a proposed solution but was willing to participate in efforts to find one.
“I can tell you I don’t think you’re going to like what comes out of Congress,” Sensenbrenner responded.
Sen. Dianne Feinstein, D-Calif., is working with Sen. Richard Burr, R-N.C., on a bill that would require tech companies to obey court warrants to access data. Burr is the chairman of the Senate Intelligence Committee and Feinstein is the committee’s top Democrat.
Congress is deeply divided on the issue, though, and key lawmakers don’t want to take action, preferring a commission to study the issue for a year and make recommendations. Rep. Michael McCaul, a Texas Republican who chairs the House Homeland Security Committee, and Sen. Mark Warner, D-Va., have filed a bill to create such a commission.
Apple supports the idea of a congressional commission and has indicated a willingness to participate.
New York District Attorney Cyrus Vance told the House Judiciary Committee that Congress should pass a law forcing tech companies to unlock data when a judge issues a search warrant.
The companies would have to design their devices to ensure data can be accessed, under Vance’s proposal. Vance said his office had 175 iPhones it wanted Apple to unlock as part of investigations.
A New York federal magistrate, in a ruling Monday that quashed a warrant ordering Apple to open an iPhone that belonged to a drug dealer, said there were a dozen pending cases across the country in which Apple had challenged government efforts to force it to open iPhones.
That magistrate, James Orenstein, ruled that the government could not use the All Writs Act to force Apple to act, however, noting that Congress has not taken advantage of opportunities to pass laws requiring Apple’s cooperation.
Orenstein’s order conflicts with one issued by Magistrate Judge Sheri Pym in California ordering Apple to write the software needed to unlock Farook’s iPhone. But the two cases are separate. Legal analysts have suggested the controversy eventually might come before the Supreme Court.