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FBI director: Victory in the fight with Apple could set a precedent, lead to more requests
FBI director: Victory in the fight with Apple could set a precedent, lead to more requests
FBI
director James Comey and Apple's Generlal Counsel Bruce Sewell spoke at
a Congress hearing for the first time after a court order to unlock a
San Bernardino shooter's phone was issued. (Jhaan Elker/The Washington
Post)
FBI Director James B. Comey appeared first, and while the Justice Department has tried to cast the issue as narrowly focused on one iPhone, he acknowledged early in the hearing that if the government succeeds in this case it could set a precedent for other cases.
Comey also said he believed in the near future, all conversations and personal documents would be hidden behind encryption “that nobody else can get into.” But he added that this would come into continuing conflict with law enforcement activities, which he described as dependent on officers obtaining warrants to access personal conversations or materials.
“Our job is simply to tell people there is a problem,” Comey said Tuesday during his testimony, which lasted for more than two and a half hours. “Everybody should care about it, everybody should want to understand. If there are warrant proof spaces in American life, what does that mean and what are the costs of that?”
The hearing before a House Judiciary Committee hearing came a day after a federal judge in New York ruled in favor of Apple in a separate, similar case that also focuses on whether the government can force the tech giant to help it access locked devices.
Apple has argued that the government is seeking “dangerous power” in trying to force the company to help it access the iPhone, and the tech giant says it is being asked to weaken the security of its devices going forward. The company’s top lawyer made that argument when he appeared after Comey.
“Some of you might have an iPhone in your pocket right now, and if you think about it, there’s probably more information stored on that iPhone than a thief could steal by breaking into your house,” Bruce Sewell, general counsel for Apple, said during his opening remarks. “The only way we know to protect that data is through strong encryption.”
Sewell said the company was “in an arms race with criminals, cyberterrorists [and] hackers,” which is why they have focused so much on strengthening the encryption on devices. He also pushed back against a suggestion — made by the Justice Department in a court filing — that Apple was only fighting the FBI due to marketing concerns, saying that this “diminishes” the serious issues being debated.
“This is not a marketing issue….We’re doing this because we think that protecting the security and the privacy of hundreds of millions of iPhone users is the right thing to do,” Sewell said.
This debate has played out in recent weeks across court filings, public statements, open letters and television interviews, with both sides seeking to stake out the higher ground in a conflict centered on one iPhone but with far-reaching implications in an era where personal information is increasingly stored on digital devices and platforms.
Comey said in written remarks submitted to the committee before the hearing that federal officials care about privacy and civil liberties, but added that “critical evidence” in criminal cases is increasingly protected by strong encryption, which he said could impede attempts to thwart terrorists or find child predators.
During his appearance Tuesday, Comey said the iPhone recovered after the San Bernardino attack — one of three phones that was found, though the other two were smashed — could provide information about other terrorists.
He said the FBI was only seeking to answer lingering questions: “Is there somebody else? And are there clues to what else might have gone on here?” Comey said Tuesday. “That is our job.”
Apple has dismissed the possibility that the phone from San Bernardino could hold information about other terrorists as speculation. While the Justice Department has sought to describe the matter as narrowly focused on one phone, Apple and its supporters in the tech industry instead say the case has far-ranging implications.
Comey said in his testimony Tuesday afternoon that this case could “potentially” create a precedent, pointing out that the same could be true of the ruling a day earlier in New York.
“That’s just the way the law works, which I happen to think is a good thing,” he said.
At
a congressional hearing on the issue of encryption, FBI Director James
Comey testified that the U.S. is not asking for a backdoor to every
iPhone. (AP)
“This case will be resolved by the courts,” Comey said. “It does not solve the problem we’re all here wrestling with.”
Comey said he had “high confidence that all elements of the U.S. government had focused on this problem.” While he did not cite any other agencies by name, his comment suggested that the National Security Agency, the government’s code-making and code-breaking spy organization, may have gotten involved in the efforts to access the phone’s data.
Later in the hearing, Comey was specifically asked if the FBI had talked to other government agencies, including the NSA. “Yes is the answer,” he said. “We’ve talked to anybody who will talk to us about it.”
When he was asked again whether other agencies could have helped them access the phone, he said Apple had effectively created phones that could not be broken into, which is why they had to resort to court action.
The NSA did not immediately respond to a request for comment Tuesday.
The government is seeking to unlock an iPhone 5c used by Syed Rizwan Farook, who in December traveled with his wife to a company holiday party in San Bernardino, Calif., and killed 14 people. Both attackers were killed in a shootout with police the same day.
This rampage was labeled a terrorist attack and the FBI took over the investigation. Authorities quickly recovered Farook’s phone, which he was given as part of his job at the county health department. For nearly three months, though, authorities say they have been unable to access information that may be stored on the phone.
At
a congressional hearing on the issue of encryption, Bruce Sewell,
general counsel for Apple, spoke out against a claim that Apple may be
using the case as a marketing ploy. (AP)
Sewell, though, disputed that notion, saying that if the password was not changed, the court fight might have been averted.
“The very information that the FBI is seeking would have been available and we could have pulled it down from the cloud,” he said. “By changing the [iCloud] password…it was no longer possible.”
The Justice Department sought and received an order from a magistrate judge in Riverside, Calif., last month directing Apple to disable a feature that deletes the data on the phone after 10 incorrect tries at entering a password. That way, the government can try to crack the password using “brute force” – attempting thousands or millions of combinations without risking the deletion of the data.
Apple, though, argues that the FBI is seeking “a backdoor into the iPhone” and says that helping in this case “would set a dangerous precedent,” opening up a universe of similar requests to access data on locked iPhones. The company has called on the FBI to drop its requests and instead let a commission of experts discuss the issue.
“We can all agree this is not about access to just one iPhone,” Sewell, Apple’s general counsel, said in his prepared opening remarks. “The FBI is asking Apple to weaken the security of our products.”
Sewell also argued that the debate should be had by Congress and elected leaders, rather than a warrant requested under the All Writs Act, a 1789 law that is central to the cases in California and New York.
Cyrus R. Vance Jr., the Manhattan district attorney, echoed the argument that the case has implications far beyond the San Bernardino investigation.
In remarks submitted to the committee before his appearance, Vance pointed out that most criminal prosecutions are handled at the state and local level, rather than by federal authorities, and that Apple’s encryption “severely harms many of these prosecutions.” According to Vance, his office has recovered 175 iPhones that may contain data relevant to investigations but that cannot be unlocked.
“Technology companies should not be able to dictate who can access key evidence in criminal investigations,” Vance said in this written testimony. “No device or company, no matter how popular, should be able to exempt itself from court obligations unilaterally.”
The hearing on Tuesday is, in many ways, a preview of what will occur three weeks later in California, when a judge hears oral arguments in this case.
A day before the Capitol Hill hearing, a Brooklyn judge issued a ruling in favor of Apple in another case involving a locked iPhone. That ruling was not binding in any other court, but it took on an outsize importance given the California case.
In his opinion, magistrate judge James Orenstein in the Eastern District of New York found that the government could not rely on the centuries-old law to ask him to force the company to extract data from an iPhone that belonged to a drug dealer.
The two cases involve different types of iPhone operating systems and different types of technical requests. But in both cases, Apple has challenged the government’s use of the All Writs Act to compel it to give technical help to obtain suspects’ encrypted data.
Orenstein rebuked prosecutors for relying on the older law, saying it should not be used in cases where Congress has had the opportunity but failed to create an authority for the government to get the type of help it was seeking.
In Brazil on Tuesday, federal police took Facebook’s vice president for Latin America into custody after the company told authorities that Whatsapp, a service owned by Facebook, had no technical way to provide a wiretap for instant messages, a Whatsapp spokesman said.
Authorities there sought the court-ordered wiretap in connection with a drug-trafficking probe, Reuters reported.
Whatsapp, which has no employees in Brazil, does not store messages on its servers and has moved to encrypt messages in transit between users. “We cannot provide information we do not have,” the spokesman said.
Facebook also expressed dismay.
“We’re disappointed with the extreme and disproportionate measure of having a Facebook executive escorted to a police station in connection with a case involving WhatsApp, which operates separately from Facebook,” a Facebook spokesperson said in a statement. “Facebook has always been and will be available to address any questions Brazilian authorities may have.”
The Brazil incident involves data encrypted “in motion,” not the encrypted contents of smartphones as in the San Bernardino case. Nonetheless, it highlights the tension U.S. companies face as they seek to protect users’ data amid pressure from other governments to comply with their court orders.
Apple has argued that if it is forced to create and sign software to help unlock an iPhone, that other countries — including, potentially, authoritarian regimes — will seek a similar capability.
Further reading:
Apple has its work cut out for it with Congress. Here’s why.
The two sides of the Apple-FBI debate
Understanding the technology at the heart of the Apple-FBI showdown
What could hurt Apple’s case in Washington
Apple is working to make iPhones even tougher to get into
Apple chief executive Tim Cook says FBI requests are “bad for America”
[This story has been updated. First published at 11:53 a.m.]
Mark
Berman covers national news for The Washington Post and anchors Post
Nation, a destination for breaking news and stories from around the
country.
Ellen
Nakashima is a national security reporter for The Washington Post. She
focuses on issues relating to intelligence, technology and civil
liberties.