New front in iPhone data war: Congress
At a contentious, five-hour hearing of the House Judiciary Committee Tuesday, the director of the FBI and Apple’s lead counsel offered sharply differing views on the privacy and security issues at stake in the growing conflict between law enforcement and the tech giant over smartphone data access.
During questioning from committee members, FBI Director James Comey was careful to downplay the technical and legal implications of the bureau’s requests. He repeatedly suggested the government could work together with Apple to fashion a compromise that would meet law-enforcement needs without compromising Apple’s customer protections. The bureau is seeking a court order that would require Apple to develop a mobile operating system that could be downloaded onto the iPhone used by one of the San Bernardino shooters, enabling investigators to access its data.
In the committee’s questioning, many members were skeptical that the access the FBI is requesting was possible without impacting the privacy and security of the public at large.
Responding to a question from Rep. John Conyers, D-Mich., about what kind of precedent the San Bernardino case would set, Comey said he anticipated there would be future requests for phone data under the same 1789 law.
“If the All Writs Act is available to us and the relief under the All Writs Act is available to us under the interpretation of the courts, then, of course,” he said during the first half of the hearing. (The 227-year-old All Writs Act gives federal judges the legal authority to enforce the orders of their courts.)
Conyers, clearly irritated, followed up with a question that set a tense tone for the remainder of Comey’s testimony.
“Can you appreciate my frustration with what appears to be little more than an end run around this committee?” Conyers said. Comey said he could not.
Bruce Sewell, senior vice president and general counsel for Apple Inc., watches as FBI Director James Comey testify. (Photo: Joshua Roberts/Reuters)
During interrogation by Rep. Jerrold Nadler, D-N.Y., Comey admitted that — as Apple alleged last month — the FBI advised the San Bernardino County official to change the password to the San Bernardino shooter’s iCloud account, effectively eliminating an alternative access method to the device in question. Law enforcement has offered no explanation as to why they took that action. “There was a mistake made in the 24 hours after the attack,” Comey said.
Rep. Judy Chu, D-Calif., asked Comey what many people suspicious of government surveillance have had on their minds since news of the San Bernardino case broke: Can’t the NSA just help the FBI get into the shooter’s iPhone?
Comey, who had earlier argued that the FBI couldn’t “train our way around” encryption, said he’d pursued help from the other government entities, including the NSA.
“We’ve talked to anybody who will talk to us about it,” he said, adding, “It is possible to break a phone without asking the manufacturer to do it, but we have not found a way to break the [iPhone] 5c running iOS 9.”
During the second part of the hearing, Apple senior vice president and general counsel Bruce Sewell read from the written testimony he submitted to the committee. In it, he highlighted the “tens of millions of dollars” that the government has spent to fund the development of strong encryption and appealed to the members of the Judiciary Committee personally.
“Some of you might have an iPhone in your pocket right now, and if you think about it, there’s probably more information stored on that iPhone than a thief could steal by breaking into your house,” he said. “The only way we know to protect that data is through strong encryption.”
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Protesters carry placards outside an Apple store last week in Boston. (Photo: Steven Senne/AP)
Rep. Trey Gowdy, R-S.C., asked Sewell whether there was an instance in which Apple would build products that allowed the FBI to access sensitive information under a warrant, and Sewell said he could not offer one. Gowdy requested that Apple submit legislation that it would “wholeheartedly back.”
“Let the record reflect that I’m asking you for it now,” Gowdy said. “I would like you to tell us what legislative remedy that you agree with.”
The hearing comes less than 24 hours after a judge decided in Apple’s favor in a similar case in New York. James Orenstein, a magistrate judge in New York’s Eastern District, issued a 50-page ruling Monday evening that said the government could not use the 1789 All Writs Act to force Apple to help unlock an iPhone that was part of a drug case.
In addition to declaring the order too burdensome to Apple, Orenstein argued that “the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it.”
Orenstein’s decision was the first test of the government’s use of the All Writs Act in requesting Apple to help law enforcement access an iPhone. The law is also at the center of the high-profile legal showdown between Apple and the FBI over the phone used by Syed Rizwan Farook, one of the San Bernardino shooters who killed 14 people in December.
On a phone call with journalists yesterday, a senior Apple executive praised Orenstein’s ruling and expressed hope that the magistrate judge in the San Bernardino case would agree.
“In the California case, we’re being asked to write an operating system that would de-feature the protective mechanisms. That was not the issue in New York,” the executive said. “It’s very pertinent because, in San Bernardino, the burden that the government is trying to oppose against Apple is much greater in that case.”
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Law enforcement officers examine evidence near the SUV that was involved in the attack in San Bernardino, Calif. (Photo: Mario Anzuoni/Reuters)
