The Apple vs. FBI case hits the House Judiciary Committee with a bang

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In mid-February, a U.S. magistrate issued an order that Apple must build a tool for the FBI to access one of the San Bernardino shooter’s iPhones, but the Cupertino company fears that creating a backdoor for law enforcement could make all iPhones vulnerable and open them up to criminals. Now, the case has moved to the House Judiciary Committee.

During a hearing titled “The Encryption Tightrope: Balancing Americans,” FBI Director James Comey testified in front of the committee, along with Apple’s senior vice president and general counsel Bruce Sewell. Sewell was joined with Professor Susan Landau of Worcester Polytechnic Institute, and New York County District Attorney Cyrus Vance Jr.

“We think protecting the security and privacy of hundreds of millions of iPhone users is the right thing to do.”

Comey said he wants Apple to remove the guard dog so that the FBI can pick the lock and get into the shooter’s iPhone.

Within the first half of the hearing, where the committee questioned Comey, it was sufficiently clear that the FBI would indeed use this same tactic to other cases if it succeeds in forcing Apple to create a backdoor. Comey said “potentially, yes. If the All Writs Act is available to us, and relief under the All Writs Act fits the powers of the statute, of course” the bureau would use it to its advantage to gain access to the many other smartphones it has that it cannot break into.

Comey repeatedly tried to make it clear that the debate is an important step in finding a solution on how to handle encryption when it comes to criminals and cyberterrorist attacks. He commended Apple on its software and stance, saying “there are no demons in this debate.”

But the FBI’s position is clear: It wants Apple to disable the self-destruct/auto-erase feature; disable the feature that spreads out the time between selective guesses; and set up the San Bernardino’s iPhone so that the FBI can send electronic guesses to crack the passcode every so often. Comey says a judge would decide if Apple is allowed to destroy the software that would enable the FBI’s request.

Comey says encryption is good, if law enforcement can get in

Comey said the FBI would have quietly broken into the shooter’s iPhone if it could — a fact that some members of the committee had a hard time grasping, considering the bureau’s vast array of resources.

“They’ve set out to make a phone that they can’t get into and they’re darn near succeeding,” Comey responded. “I think with the 6 and beyond, they would have succeeded. That doesn’t make them bad people.”

Comey also responded to questions surrounding the Justice department’s claims that Apple’s stance is simply a marketing ploy, saying that it’s a good reason as Apple is still a business, acting in its best interests. Apple disagreed vehemently.

“We’re doing this because we think protecting the security and privacy of hundreds of millions of iPhone users is the right thing to do,” Sewell said after his testimony began. He went on to state that this debate is not about the San Bernardino case, and there is no real distinction between a 5C or a 6S in this case — as the tool Apple is being asked to create would be able to hack into any iPhone.

And there’s no doubt that Apple can do what the FBI is asking it to, as Sewell says so himself — the denial stems from the possible consequences. Comey says the courts have to decide if worrying about the consequences is a reasonable argument to harp on.

“It’s a fool’s errand. We’ll never be able to do what’s being asked of us by the FBI.”

Apple’s argument is that the order violates the first and thirteenth amendment, which abolishes slavery.

“This is a compelled speech by the government for the purposes of the government which is absolutely a first amendment problem, and it is speech that Apple does not want to make,” Sewell said. “And it is conscription, forced labor.”

It’s still far too early to tell, but the line of questioning seemed to show that more members on the committee seemed to favor Apple’s stance, such as U.S. Representative Zoe Lofgren, who said, “it’s a fool’s errand. We’ll never be able to do what’s being asked of us by the FBI.”

But by no means does that mean it’s an easy effort on Apple’s part, as Representative James Sensenbrenner asked Sewell why Apple did not have policy recommendations, unlike the FBI. “You’ve come to us to ask us to do something, but you don’t know what you want us to do,” he said. Representative Trey Gowdy offered the same sentiments, asking Sewell to propose what Apple can agree to, and repeatedly asking him to submit legislation recommendations.

Sewell said when the courts make a decision, Apple and other tech giants will make recommendations when it is appropriate.

“Encryption is a good thing, a necessary thing.,” Sewell said in his opening remarks. “Weakening encryption will only hurt consumers and other well-meaning users who rely on companies like Apple to protect their personal information.”

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