FBI-Apple Battle on Encryption at House Judiciary

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By Jimmy H. Koo

March 1 — In the latest chapter of the explosive debate over encryption to protect consumer privacy versus government demands for law enforcement and national security access to devices, House Judiciary Committee members at a March 1 hearing expressed support for the FBI's difficult mission but also concerns that the agency's effort to compel Apple Inc. to help it unlock a terrorist's iPhone may be a step too far.

The hearing on “The Encryption Tightrope: Balancing Americans’ Security and Privacy” was called in response to the ongoing litigation over an order requested by the Federal Bureau of Investigation and granted by a federal court in California and Apple's motion to vacate that order.

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“We're simply asking to take the vicious guard dog away and let us pick the lock,” FBI Director James Comey told the panel.

But Apple General Counsel Bruce Sewell painted a different picture. “The FBI is asking Apple to weaken the security of our products. Hackers and cyber criminals could use this to wreak havoc on our privacy and personal safety,” he said. “Encryption is a good thing, a necessary thing.”

FBI Inability to Unlock Phone Questioned

Some of the committee members were also baffled by the fact that the FBI and other law enforcement agencies haven't been able to unlock the iPhone and had to resort to asking the Cupertino, Calif.-based company to unlock the phone.

Rep. Judy Chu (D-Calif.) said that according to various sources—including the testimony of Susan Landau, professor of cybersecurity policy at Worcester Polytechnic Institute, who spoke at the same hearing—there are solutions to get the data, including jail-breaking the phone. “Have you talked to other people around finding a solution?” she asked Comey. “Yes,” he answered.

“If we could have done it, we would have done it quietly and privately,” FBI Director James Comey said. “Here, Apple is really good at what it does; they wanted to design a phone that can’t be opened and they’re close to it,” he said.

Rep. Darrell Issa (R-Calif.) peppered Comey with questions about technical solutions he said would solve the problem, “decoupling the disk drive and copying the non-volitile memory hard drive” would work. “You can attack it without forcing” the phone to lock, he said.

“Why haven't you done this? Have you tried? If not, why haven’t you tried?” Issa asked.

Comey answered “I don’t know. We haven’t figured it out. I hope my folks are watching this.”

Landau told the committee that if Apple write the code ordered by the court in California “it would be a security mistake.”

Privacy Consequences?

In his prepared statement, Comey noted that the FBI isn't asking to expand the government's surveillance authority. “Rather we are asking to ensure that we can continue to obtain electronic information and evidence pursuant to the legal authority that Congress has provided to us,” he said.

Sewell said “Apple is capable of doing what the FBI is asking but, what are the consequences?”

Sewell also criticized the government for using an 18th century law—The All Writs Act—to justify its demand. Decisions should be made by members of congress, “rather than through a warrant request based on a 220 year-old-statute,” he said.

The hearing followed Apple's refusal to comply with a court order requiring the company to help the Department of Justice to unlock an iPhone used by one of the shooters .

In a letter published on the company’s website, Apple Chief Executive Officer Tim Cook said the FBI was seeking a new version of Apple’s operating system that would circumvent security features—including a feature that erases all data on the phone after certain number of incorrect passcode guesses—and give law enforcement access to private data.

The standoff between Apple and the FBI has garnered much attention, with observers saying that the case would eventually have to be settled by Congress or the Supreme Court . The dispute also has the possibility of setting an important precedent. “Whatever the judge's decision is in California, it will be appealed and it will be instructive for other courts,” Comey recently testified before the House Intelligence Committee .

In a separate and unrelated but, closely-watched case, Apple Feb. 29 won a pivotal clash with the U.S., with a federal judge in Brooklyn ruling that the company doesn't have to help authorities unlock a drug dealer's iPhone. For months, Apple has rebuffed U.S. requests that it assist investigators seeking to crack encrypted iPhones. The battle burst into public view after a California judge this month ordered the company to aid prosecutors seeking access a terrorist's phone, but by then Apple had spent months in a Brooklyn court fighting over the drug dealer's device. On Feb. 29, Magistrate Judge James Orenstein of the U.S. District Court for the Eastern District of New York said the government's demands on Apple are impractical and excessive.

Accommodating Law Enforcement

“Encryption is essential,” Committee Chairman Rep. Bob Goodlatte (R-Va.) said at the hearing. However, the issue is, Goodlatte asked, “how do we deploy stronger encryption without unduly burdening law enforcement?”

“We have to find a way to accommodate both privacy and security,” Comey said. “Ultimately,” Sewell said, “Congress will have to decide on this issue.”

Many of the lawmakers raised concerns about what would happen to the code after the investigation, if Apple decided to comply with the court order. “It'll be up to the judge,” Comey answered.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: Donald G. Aplin at daplin@bna.com

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