FBI Chief Acknowledges Court Win Could Set Precedent as Government, Apple Square Off at House Hearing
FBI Director James Comey acknowledged Tuesday that legal precedent could be set if courts side with the government in its fight to force Apple to help it "pick the lock" of an iPhone 5C used by one of the alleged San Bernardino, California, mass shooters (see 1602290035). "Of course, any decision by a judge in any forum is going to be potentially precedential in some other forum, not binding but guidance either positive or against," he said, responding to a question from ranking member John Conyers, D-Mich., during a House Judiciary Committee hearing. Minutes earlier, Comey, the sole witness on the hearing's first panel, replied with the same answer to the same question on legal precedents from Chairman Bob Goodlatte, R-Va. The second panel included Apple's top legal executive.
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Comey has said numerous times before his acknowledgement Tuesday that what the government is asking in the case before U.S. District Magistrate Judge Sheri Pym in Riverside, California, wouldn't set a precedent (see 1602220026). In several other cases the FBI is asking Apple to help it gain access to a device's contents. "Essentially, we're asking Apple to take the vicious guard dog away and let us try and pick the lock," said Comey. He said the FBI is asking Apple to help it disable several features, including an auto erase function, so the agency can figure out the security passcode.
Monday, Magistrate Judge James Orenstein in New York's Eastern District ruled in favor of Apple, denying the U.S. government's motion to force the company to help it break into an iPhone in a drug case. Orenstein wrote the "government's interpretation of the breadth of authority the [All Writs Act] confers on courts of limited jurisdiction thus raises serious doubts about how such a statute could withstand constitutional scrutiny under the separation-of-powers doctrine." A Feb. 17 letter from Apple to Orenstein listed nine other cases in California, Illinois, Massachusetts and New York in which the U.S. government is trying to force Apple to bypass the security codes in iPhones. The company said it received those orders from Oct. 8 to Feb. 9.
Lawmakers weren't hostile toward Comey, who testified for nearly three hours. But they peppered him with questions about the case's impact on privacy, Apple's responsibility, the agency's use of the All Writs Act, if the FBI did everything possible to gain access to the phone without resorting to the courts, and whether he thought the court was the proper forum to resolve the encryption issue. While the courts are "competent" to resolve the narrow question of the scope of the All Writs Act, Comey said they can't resolve the conflict between public safety and privacy in the encryption debate. He said he didn't have a recommendation on what Congress can do if the government can't use the All Writs Act to get what it wants.
Comey, who said he didn't question Apple's motives, said in his opening statement -- and at least a couple more times throughout his testimony -- that "there are no demons in this debate. The companies are not evil. The government is not evil. You have a whole lot of good people who see the world through different lenses and ... we all care about the same things.”
During the second panel, Apple General Counsel Bruce Sewell said the company has been criticized unfairly as resisting the court order as a marketing strategy, in response to a question from Goodlatte, which Sewell said is "a way of demeaning the other side." He said Apple is doing the right thing to protect the security and privacy of hundreds of millions of consumers and characterized the FBI's request as providing a back door. When asked by Conyers why it's resisting the FBI, Sewell said it's not about San Bernardino. "This is about the safety and security of every iPhone in use today," said Sewell. "The tool we're being asked to create will work on any iPhone today.”
Rep. James Sensenbrenner, R-Wis., asked whether Apple had any specific recommendations or even legislation to propose to help Congress resolve the issue. Sewell said the company had none. Sensenbrenner replied, "All you've been saying is no, no, no, no," saying Apple isn't providing any help. In response to another question from Rep. Ted Poe, R-Texas, Sewell, who said Congress should decide this issue, said other countries are watching this debate and America should be leading on this issue worldwide, maintain a consistent position and not compromise users. He said that's "substantially weakened" if Apple is forced to make that compromise in this country.
Comey also told several lawmakers the FBI needs Apple's help because it can't do it on its own. Rep. Darrell Issa, R-Calif., asked Comey whether the agency or its contractors took several alternative steps to gain access to the iPhone in the San Bernardino case, providing technical details of making thousands of copies of its "volatile memory" and trying the 10,000 possible combinations within hours. "If you haven't asked that question, the question is how can you come before this committee and before a federal judge and demand that somebody else invent something if you can't answer the questions that your people have tried this?" asked Issa. Comey said he has "high confidence" the government is focused on the problem and open to suggestions.
In opening remarks, Conyers and Goodlatte said Congress is the proper venue to resolve the problem, with Goodlatte saying the issue is "too complex" for the courts to decide. Conyers was more skeptical of the government's position, saying back doors would be exploited by terrorists, would place U.S. technology companies at a competitive disadvantage, and criminals and terrorists would resort to other tools. A bipartisan coalition of congressional lawmakers introduced legislation to create a commission to study and recommend a solution to the encryption issue (see 1602290074).