FBI Director James Comey defended the agency’s legal pursuit of access to suspects’ digital information, including that of an iPhone owned by one of the San Bernardino terrorists, but he faced some skeptical lawmakers on Capitol Hill who worried about cases setting a precedent that would jeopardize privacy.
Comey was speaking to the House Judiciary Committee, which held a hearing on Tuesday devoted to the issue of encryption, just as the FBI is engaged in a legal tussle with Apple as it seeks the tech giant’s help in unlocking the iPhone owned by Syed Farook, who with wife Tashfeen Malik shot and killed 14 people in the Dec. 2 terror attacks in San Bernardino.
The FBI is asking that Apple “turn off the auto erase and delay features so that we can try to guess the password,” Comey told the committee.
“Essentially we are asking Apple, ‘Take the vicious dog away. Let us pick the lock,'” Comey told lawmakers.
A judge has ordered Apple to comply, but the company is appealing.
Apple General Counsel Bruce Sewell, who also testified, called the FBI’s request an “extraordinary circumstance” in that “the FBI has asked a court to order us to give them something we don’t have.”
“As we have told them — and as we have told the American public — building that software tool would not affect just one iPhone. It would weaken the security for all of them,” he said.
Comey acknowledged that a mistake was made in the 24 hours after the attack, when the FBI asked San Bernardino authorities to change the password on the iCloud backup for the phone. That foreclosed a potential backup solution, although Comey said that “the experts have told me we would still be in litigation because there is no way we would have gotten everything from an iPhone from a backup.”
Comey defended the FBI’s pursuit of court orders to unlock devices in criminal cases. Moreover, he worried about future technology that makes access to devices impossible, asking about the “consequences” of “warrant-proof spaces in American life.” He said that it was the agency’s job to pursue all avenues of a criminal or terrorist investigation.
The Justice Department has cited the government’s authority under the All Writs Act of 1789 in seeking to compel Apple’s assistance.
The chairman of the House Judiciary Committee, Rep. Bob Goodlatte (R-Va.), said that the questions over the balance of privacy vs. security had to be left to Congress.
“We must find a way for physical security not to be at odds with information security,” he 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 their customers safe.”
But Rep. John Conyers (D-Mich.) said that what concerned him is “that in the middle of an ongoing congressional debate on this subject, the FBI would ask a federal magistrate to give them the special access to secure products that this committee, this Congress and the administration have so far refused to provide.”
“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.
Comey said that if they didn’t seek court action in the San Bernardino case, “I ought to be fired, honestly.”
Rep. Darrell Issa (R-Calif.) pressed Comey on whether the FBI had pursued potential alternatives, and said that “it befuddles me” that the agency had not yet asked Apple for their source code. He suggested that was one avenue for unlocking the iPhone.
Comey said that they have been engaging “all parts of the U.S. government” for help, and that he was “totally open for suggestions” in the matter.
Issa and Rep. Zoe Lofgren (D-Calif.) wrote an op ed for the Los Angeles Times in which they argued that allowing the “government ‘backdoor’ access to just this one phone would undo years of technological advances in online security.”
Apple’s Sewell told the committee that what the FBI is asking for is “a backdoor to the iPhone — specifically to build a software tool that can break the encryption system which protects personal information on every iPhone.”
“As attacks on our customers’ data become increasingly sophisticated, the tools we use to defend against them must get stronger too,” he said. “Weakening encryption will only hurt consumers and well-meaning users who rely on companies like Apple to protect their personal information.”
Another issue has been the movement toward so-called “end-to-end encryption,” making it all but impossible for law enforcement to access digital conversations.
Sewell said that Apple has been developing strong encryption security as “we see ourselves in an arms race with criminals, cyberterrorists and hackers.” He suggested that terrorists are finding their own encryption “independently of the issues discussed today,” and would continue to do so even if Apple and other tech firms are asked to forego stronger protections on their devices.
On Monday, a New York federal magistrate judge turned down a Justice Department request to compel Apple’s assistance in unlocking an iPhone in a drug case. The judge, James Orenstein, rejected the government’s argument that the All Writs Act allowed for such an order.
“Ultimately Congress must decide this issue,” Sewell said.
Rep. James Sensenbrenner (R-Wis.) was critical of Apple for not offering up a legislative solution. Otherwise, he said, “you’re not going to like what comes out of Congress.”