Erin Kelly

USA TODAY

WASHINGTON — Apple General Counsel Bruce Sewell questioned Tuesday whether the FBI should have the right to force tech companies to create special software to help the government get into encrypted smartphones and other devices.

The FBI and Apple are locked in a legal battle over whether the company should be compelled to write code to unlock the encrypted iPhone of one of the dead terrorists who killed 14 people and wounded more than 20 others in a mass shooting in San Bernardino, Calif. in December.

"Should the FBI have the right to compel a company to produce a product it doesn't already make, to the FBI's exact specifications and for the FBI's use?" Sewell asked members of the House Judiciary Committee.

Sewell, who is also Apple's senior vice president, said that Apple made its engineers available to the FBI in the wake of the San Bernardino attack to advise agents on investigative options.

"But we now find ourselves at the center of an extraordinary circumstance," Sewell testified. "The FBI has asked a court to order us to give them something we don't have, to create an operating system that does not exist because it would be too dangerous. They are asking for a backdoor into the iPhone — specifically to build a software tool that can break the encryption system which protects personal information on every iPhone."

Sewell testified at a hearing in which Apple faced off with the FBI for the first time since the federal government went to court last month to try to force the tech giant to unlock the terrorist's iPhone.

FBI Director James Comey said Tuesday that Congress must decide if it wants Apple and other tech companies to have the power to effectively bar law enforcement from obtaining evidence of crime and terrorism from encrypted smartphones and other electronic devices.

"The core question is this: Once all of the requirements and safeguards of the laws and the Constitution have been met, are we comfortable with technical design decisions that result in barriers to obtaining evidence of a crime?" Comey asked the committee.

Comey said the government is not trying to expand its surveillance power, but he is concerned about the emergence of "warrant-proof spaces" where critical information cannot be obtained by law enforcement.

"We are asking to ensure that we can continue to obtain electronic information and evidence pursuant to the legal authority that Congress has provided us to keep America safe," he said.

Comey and Sewell were witnesses at a hearing titled "The Encryption Tightrope: Balancing Americans' Security and Privacy."

The difficulty of finding that balance has been underscored by the legal battle between the FBI and Apple.

A federal magistrate ordered Apple earlier this month to cooperate with the FBI to unlook Farook's phone. Federal agents believe the phone could contain answers about whether Farook and his wife worked with others to plot their attack.

Apple filed a motion last Thursday to dismiss the government's request, charging that it is in conflict with Apple's constitutional rights to free speech (in its coding) and against forced labor (being compelled to develop software). Google, Facebook, Twitter and Microsoft are among the tech companies supporting Apple's position.

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As the dispute plays out in court, members of Congress are trying to decide what — if anything — they should do legislatively to try to resolve the encryption debate.

House Homeland Security Committee Chairman Michael McCaul, R-Texas, and Sen. Mark Warner, D-Va., a former tech entrepreneur who serves on the Senate Intelligence Committee, introduced a bill Monday to create a national commission on digital security.

Taking a different approach, Sen. Dianne Feinstein, D-Calif., and Senate Intelligence Committee Chairman Richard Burr, R-N.C., plan to introduce legislation to require companies to provide encrypted data to the government if law enforcement officials have a court order.

Comey said the debate will only grow as Apple and other companies continue to develop stronger encryption. Farook's smartphone is an older Apple 5c model.

"They (Apple) have set out to make a phone that they can’t get into and they’re darn near succeeding," Comey said. "I think with the (Apple) 6 and beyond, they would have succeeded.”

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Sewell said that Apple is developing stronger encryption because it is "in an arms race" with cyber criminals, hackers and terrorists seeking access to Americans' electronic devices.

Compelling tech companies to build backdoors into encrypted devices will not thwart terrorists, Sewell said. He said terrorists have access to Apps with "unbreakable" encryption that Apple and other U.S. companies did not develop and have no control over.

"If we are forced to write a new operating system...it will weaken our safety and security, but it will not affect the terrorists in the least," Sewell said.

A cybersecurity expert said the best thing Congress can do is give the FBI the resources it needs to "bring FBI investigative capabilities into the 21st century" by increasing agents' expertise about modern communications technology.

"That’s what is needed here — not undermining the best security that any consumer device has to date," said Susan Landau, professor of cybersecurity policy at Worcester Polytechnic Institute in Massachusetts.

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