The fight between Apple and the FBI moves to Capitol Hill

FBI Director James Comey testifies on Capitol Hill in Washington on Tuesday.

March 1, 2016 11:34 AM PT

Reporting from Washington — The heated dispute over the FBI effort to force Apple to help unlock an iPhone used by one of the San Bernardino killers moved Tuesday to Capitol Hill, where lawmakers appear deeply divided on the issue.

FBI Director James B. Comey and Apple’s general counsel, Bruce Sewell, both testified at a crowded House Judiciary Committee hearing on encryption and the balance between privacy and national security.

Comey warned that public safety may suffer if Apple and other Silicon Valley companies can defy court-ordered warrants to cooperate with the FBI and other law enforcement agencies.

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“If there are warrant-proof spaces in American life, what does that mean? And what are the consequences of that?” Comey asked.

Comey denied Sewell’s claim that the FBI is asking for a “backdoor” key to open Apple devices, insisting the California case is focused only on a single iPhone 5c.

“There is already a door on the iPhone,” he said, referred to the encrypted password. “We are asking Apple to take the vicious guard dog away and let us pick the lock.”

The FBI wants Apple to write software that would turn off a security feature designed to wipe out data if 10 incorrect attempts are made to enter the password. Once those settings are disabled, the FBI would then try passwords until the phone unlocks.

The hearing convened a day after Apple won a major federal court ruling in New York, a ruling that could affect the San Bernardino case, as well as potential legislation in Congress.

In Brooklyn, N.Y., U.S. Magistrate Judge James Orenstein said he did not have the authority to order Apple to disable security on a iPhone used by a drug dealer who had pleaded guilty in a methamphetamine distribution case.

Across the country in Riverside, Apple is fighting U.S. Magistrate Judge Sheri Pym’s order to write software so FBI technicians can unlock a work phone used by Syed Rizwan Farook. He and his wife killed 14 people on Dec. 2 at the Inland Regional Center.

It’s unclear if any useful evidence exists on Farook’s phone. The FBI insists it might hold clues to the couple’s location, contacts and communications before the attack.

The debate has created unusual alliances in Congress, as libertarian Republicans have lined up with civil liberties Democrats to support Apple stand on privacy.

But it also has aligned national security hawks in both parties, who warn that law enforcement will be blocked from accessing evidence in terrorism and criminal cases unless high tech companies are forced to cooperate.

The divide was clear from the start of Tuesday’s hearing when Rep. Bob Goodlatte (R-Va.), chairman of the Judiciary Committee, said he once led efforts to prevent law enforcement from getting a backdoor key to commercial encryption, allowing U.S. companies to thrive and keep the market from heading overseas.

But now, he said, the use of stronger encryption and other new tech tools “by those intending harm to the American people is outpacing law enforcement’s technological capability to access those communications in legitimate criminal and national security investigations.”

“We must find a way for physical security not to be at odds with information security,” Goodlatte said. “Law enforcement must be able to fight crime and keep us safe, and this country’s innovative companies must at the same time have the opportunity to offer secure services to keep our customers safe.”

The question over how to balance privacy and security is “too complex to be left to the courts and must be answered by Congress,” Goodlatte said.

But the top Democrat on the committee, Rep. John Conyers (D-Mich.), warned that the FBI may be using the San Bernardino case to win public sympathy and change the law.

“I would be deeply disappointed if it turns out that the government is found to be exploiting a national tragedy to pursue a change in the law,” he said.

“This case appears to be little more than an end run around this committee,” Conyers said.

In testimony submitted before Tuesday’s hearing, Sewell argued that the FBI is “asking for a back door into the iPhone – specifically to build a software tool that can break the encryption system which protects personal information on every iPhone.”

Weakening encryption, he said, “will only hurt consumers and other well-meaning users who rely on companies like Apple to protect their personal information.”

In court papers, Justice Department lawyers have argued that they are asking Apple to write software only for the one phone, not for all iPhones, and that the company would still control the software, not the government.

Manhattan Dist. Atty. Cyrus Vance Jr., who also will testify at the hearing, said in a statement submitted to the committee that his office has 175 Apple devices in its forensics lab that investigators can’t open.

“It is important to recognize that 95% of all criminal prosecutions in this country are handled at the state and local level, and that Apple’s switch to default encryption in the fall of 2014 severely harms many of these prosecutions,” Vance wrote.

Vance has given lawmakers proposed legislation that would require companies to design their products so police and prosecutors can read locked data subject to a search warrant.

Lawmakers are split over whether the government should be able to force tech companies to weaken security features meant to protect customers’ private data.

A bill being drafted by Sen. Richard M. Burr (R-N.C.), chairman of the Senate Intelligence Committee, and Sen. Dianne Feinstein (D-Calif.), the panel’s top Democrat, would penalize companies that don’t comply with court orders to help authorities crack encrypted devices.

“No one’s above the law in this country; no company, no individual, no organization,” Feinstein said last week after Apple said it would fight the court order. “All the FBI is asking them to do is cooperate and do their best to help.”

Apple supports a competing proposal that would create a blue-ribbon commission to study encryption and privacy concerns, and then make recommendations to Congress.

Rep. Michael McCaul (R-Texas), chairman of the House Homeland Security Committee, and Sen. Mark R. Warner (D-Va.), a member of the Senate Intelligence Committee, introduced a bill Monday to create the National Commission on Digital Security.

It would include tech executives, privacy advocates, law enforcement officials and academics.

Rep. Ron Wyden (D-Ore.), a privacy hawk who has repeatedly sought to push back on government surveillance, is backing Apple.

He says the FBI attempt to force the company to bypass encryption will allow hackers to break in as well. Encrypted devices made overseas would quickly replace smartphones made by Apple and other American companies, he warned.

The FBI request, he said in a statement, is wrong “from a security standpoint, wrong from a liberty standpoint, and wrong from an economic standpoint.”

Google, Facebook, Verizon and Yahoo are among the tech and telecom companies drafting briefs in support of Apple.

U.S. Magistrate Judge Sheri Pym has scheduled a hearing March 22 at the federal court in Riverside.

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