The ancient debate that pits the value of privacy against that of public safety and security is bestowed new shades of gray with each mention of the San Bernardino shooter’s encrypted iPhone.
Testifying before a House judiciary committee called “The Encryption Tightrope: Balancing Americans' Security and Privacy" on March 1, FBI Director James Comey and Apple General Counsel Bruce Sewell fielded questions and stated their cases regarding the ongoing legal battle between their two entities. Comey demanded justice, but Sewell said Apple's compliance would precipitate violations of safety, security and trust.
Comey said he didn’t fault Apple for protecting their innovations and even lauded the privacy that encryption affords the public, but noted that he would be negligent in his duties as a law enforcement agent not to pursue every tool possible to uncover clues that might reveal who else was involved in the San Bernardino shooting last December that wounded 20 and killed 14 people.
“In the past two centuries, public safety has depended in large measure on the ability of law enforcement agents going to courts and obtaining warrants to look in storage areas or apartments, or to listen with appropriate predication oversight to conversations,” Comey said. “… Our job is simply to tell people that there is a problem. Everyone should care about it, everybody should understand if there are warrant-proof spaces in American life, what does that mean, and what are the costs of that, and how do we think about that? I don’t know what the answer is.”
The FBI is asking Apple to create an anti-encryption tool that would allow the government to access the San Bernardino shooter’s iPhone, and in his testimony, Comey preferred to focus on the technology as it pertains to this single case. But Apple General Counsel Bruce Sewell said the issue is much broader.
"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. “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.”
There are no evil actors in this play, Comey said — private companies, law enforcement and the public are each looking out for their respective interests, and it’s the job of the courts to decide where the privacy line should be drawn. Comey testified that the FBI holds many encrypted iPhones and agreed that if the courts rule in the FBI’s favor, it would create a precedent that allows law enforcement to crack more encrypted phones. But if an anti-encryption tool were created, some committee members noted, how could the FBI guarantee that tool remained safe and not jeopardize the privacy of all iPhone users?
Judiciary Committee Chair Rep. Bob Goodlatte, R-Va., said encryption is a good thing that needs more development from the private sector to increase its efficacy.
“It prevents crime. It prevents terrorist attacks. It keeps our most valuable information safe," he said. "Yet it is not used as effectively today as is necessary to protect against the ever-increasing sophistication of foreign governments, criminal enterprises and just plain hackers. We see this manifest almost every week in the reports of losses of massive amounts of our most valuable information from government agencies, retailers, financial institutions and average Americans.”
Judiciary committee ranking member and Rep. John Conyers, D-Mich., asked why the FBI continues to force this issue when the request had been repeatedly denied by the courts.
“I suspect that part of the answer lies in an email obtained by the Washington Post and reported to the public last September,” Conyers said. “In it, a senior lawyer in the intelligence community writes that, ‘Although the legislative environment towards encryption is very hostile today, it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.’ He concluded that there is value in ‘keeping our options open for such a situation.’ I’m deeply concerned by this cynical mindset and I would be deeply disappointed if it turns out that the government is found to be exploiting a national tragedy to pursue a change in the law.”
The FBI is using the All Writs Act of 1789, which was passed in its current form in 1911, to push its case forward. When asked why such an old document should be viewed as relevant in such a modern case, Comey quipped that the U.S. Constitution is also an old document, but that doesn’t negate its relevance.
Apple’s main objection to the FBI’s request isn’t that the company is being asked to hand over something they have possession of, but rather that they would be forced by the government to create something that undermines their intellectual property and potentially the privacy of many Americans, while also violating Apple’s constitutional rights, and potentially the safety and security of all of their customers.
“We’re being asked to write code and code is speech. The supreme court has held that that speech is protectable,” Sewell said. “So, we’re being asked to speak by the government. That speech is not speech that we want to make. And the First Amendment provides us with protections against being compelled to speak by the government. … The Fifth Amendment provides us with protection from conscription, protection from being forced into labor at the government’s will.”
When asked if it would be possible for Apple to unlock the shooter’s phone and tell the FBI what it contained, Sewell responded that it’s not possible, except by creating the tool that they are unwilling to make.
From the perspective of TechFreedom Founder Berin Szoka, Apple is being put in a strained position.
“The whole point of the All Writs Act is that it applies anywhere there are gaps, so the only time the All Writs Act does not apply either where Congress has created some other statutory scheme, or maybe if there’s some evidence that Congress did act in an area but chose not to cover something deliberately," he said. "In other words, it really boils down whether Congress specifically intended Apple not to be covered by CALEA [Communications Assistance for Law Enforcement Act] and not by the All Writs Act to create a kind of complete gap in the law.”
But the crucial battle will be on the legislative front, Szoka said.
“I think the case itself is a distraction, because the real issue is legislation,” he said. “I don’t think the case really matters, because in the end, it’s going to be about legislation; the case really only determines how the chess board is set up for the legislative battle.”
Colin wrote for Government Technology from 2010 through most of 2016.
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