Hit & Run

Reps Skeptical of FBI in Encryption Fight Against Apple

Judiciary Committee members understand the precedent involved.

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Swiping left on Comey?
Credit: Yutaka Tsutano / photo on flickr

One thing was certain at this afternoon's House Judiciary Committee hearing on "The Encryption Tightrope: Balancing Americans' Security and Privacy": The members of Congress in attendance understood full well that the case between the FBI and Apple was not about "just one phone."

FBI Director James Comey came to testify before the committee about his agency's efforts to use the courts to conscript Apple into writing code that will weaken the security of the work iPhone of San Bernardino terrorist Syed Farook so that the FBI can attempt to break into it and recover the data held within.

The represenatives who spoke during the first segment of the hearing—both Democrat and Republican—seemed skeptical of whether the FBI should be able to force Apple's cooperation. And despite his insistence that this was just about Farook's single phone, Comey was repeatedly put in a position where he had to acknowledge that this case would set a precedent for forcing Apple's assistance (and therefore other tech companies' assistance) in weakening cybersecurity, not just by the FBI but by law enforcement agencies across the country.

Rep. John Conyers (D-Mich.), the Ranking Member of the committee, pointed out in opening comments that a number of government officials, current and former, such as former Secretary of Homeland Security Michael Chertoff, are opposed to weakening encryption for the benefit of helping law enforcement catch criminals. Rep. Jerrold Nadler (D-N.Y.) needled Comey on whether "bad actors" in other countries would be able to get independent encryption sources to better protect them from the feds. Comey acknowledged that they could, but didn't seem to think it was likely, which perhaps is true if you were trying to get data from phones from run-of-the-mill crooks and not organized terrorists. But we're not supposed to think of stuff like that! This is an isolated case!

Reps. Darrell Issa (R-Calif.) and Zoe Lofgren (D-Calif.) tag-teamed Comey back to back. Issa pushed on whether the FBI truly had exhausted their own abilities to try to break into the phone before trying to draft Apple (Comey insisted that they had). Lofgren pointed out that whatever the U.S. decided as far as protecting or weakening encryption would end up becoming the foundation for international norms. The two of them also joined up for a bipartisan op-ed at the Los Angeles Times today calling for Congress to remain control of debate (not the FBI or the courts) and to keep encryption strong, concluding:

Instead of weakening privacy protections, lawmakers should support legislation — like that which passed the House with overwhelming support on three separate occasions — prohibiting government-mandated backdoors that intentionally undermine and undercut the development and deployment of strong data security technologies.

You can read statements from the witnesses at the hearing (including Apple's general counsel) here.