Legislators accuse Justice Department of overreaching and undermining privacy but warn Apple it’s ‘not going to like’ a congressionally mandated solution

This article is more than 4 years old

This article is more than 4 years old

The Justice Department is on a “fool’s errand” trying to force Apple to unlock the iPhone used by one of the San Bernardino terrorists, lawmakers told FBI director James Comey on Tuesday.

Lawmakers of both parties sharply challenged Comey as the House judiciary committee considered the FBI’s court order to unlock an iPhone owned by Syed Farook, who with his wife killed 14 people at the Inland Regional Center in San Bernardino, California, in December and was killed by law enforcement.

Legislators repeatedly accused the Justice Department of overreaching its authority and undermining both privacy and cybersecurity. Several endorsed Congress passing a law settling the boundaries – something Apple supports – and accused the FBI of trying to circumvent Congress by launching a lawsuit against Apple.

“Can you appreciate my frustration with what appears to be little more than an end-run around this committee?” asked Democratic congressman John Conyers. Representative Zoe Lofgren called FBI demands to weaken Apple’s security a “fool’s errand” that undermined cybersecurity.

Comey, a well-respected figure in Congress, likened impenetrable digital encryption used to protect customer’s privacy such as that of Apple to a “vicious guard dog”.

“We’re asking Apple to take the vicious guard dog away and let us pick the lock,” Comey said. “It’s not their job to watch out for public safety. That’s our job.”

He said that neither Apple nor any other tech company ought to be permitted to create “warrant-free spaces” through the use of robust encryption, particularly as mobile and software manufacturers increasingly render user keys inaccessible to themselves.

“The logic of encryption will bring us to a place in the not too distant future where all of our conversations and all our papers and effects are entirely private,” Comey said.



Testifying after Comey, Bruce Sewell, Apple’s general counsel, countered the FBI director on multiple points, calling its court order “a way to cut off the debate” rather than engaging in it. “This is a security versus security issue, and we believe that balance should be struck by Congress,” Sewell said.

But Wisconsin representative James Sensenbrenner, a Republican who fought with the security agencies and fellow legislators to rein in the NSA’s domestic phone data collection, warned Sewell: “I can tell you you’re not going to like what comes out of Congress.”

“All you’ve been saying is no, no, no, no,” Sensenbrenner said.



Comey repeatedly conceded he had not considered several implications of getting a court to order Apple to unlock an iPhone 5C used by Farook.



Comey said “there was a mistake made” in the FBI working with San Bernardino County officials in December to reset the phone’s password, which potentially cost law enforcement a way into the phone data and out of the impasse. But Comey said he had been assured that all the data from the phone was unlikely to migrate to iCloud.



Comey also testified that he had not considered that China might follow the US’s lead in compelling Apple to provide access to customer data, even as he is challenged to thwart Chinese-attributed cyber-attacks. “I have no doubt there are internal implications,” Comey said.

Committee chairman Robert Goodlatte, a Virginia Republican, said the Apple case, which has commanded global attention for its implications for cybersecurity, “may not be an ideal case on which to set precedent”, citing a New York federal judge’s refusal to grant the FBI strikingly similar authority this week.



Under Goodlatte’s questioning, Comey continued to back away from his previous assertions that the Apple-FBI dispute concerns only a single iPhone.

“It won’t be a one-time request. It’ll set precedent for other requests from the FBI and any other law enforcement,” Goodlatte said.

“Sure, potentially,” Comey said.

Several lawmakers said that Congress and not judges ought to determine whether security agencies can order tech companies to write software providing access into their products, something technologists refer to as a “backdoor”.

Conyers, the ranking Democrat, said Congress should pursue the debate “even if the dialogue does not yield the results desired by some in the law enforcement community”.

The FBI director repeatedly declined to answer technical questions about either the San Bernardino investigation or how far the FBI’s authorities to compel Apple to write it software might go, pleading ignorance.



Some of Apple’s competitors rallied to its support.

“The path to hell starts at the backdoor,” Microsoft’s general counsel, Brad Smith, told the RSA Conference in San Francisco. Smith challenged the computer security industry represented at the gathering to “stand up with Apple in this important case”.

As Comey faced a skeptical congressional panel, the US defense chief struck a decidedly different tone in a speech to an audience in San Francisco.

Ashton Carter, who has spent much of his tenure reaching out to Silicon Valley, pointed out that his department is “the largest user of encryption in the world” and urged tech firms to continue “partnership” with the government.

Carter tiptoed around the FBI-Apple dispute, but stated: “There will not be some simple, overall technical solution – a so-called backdoor that does it all.” He urged against both “a law hastily written in anger or in grief” and having “the rules written by Russia or China”.

Sewell confirmed that both nations have sought backdoors into Apple customers’ data and warned: “The world is watching.”