After months in which it seemed like the two sides were talking past each other, there now might be room for discussion, according to little-noticed remarks made in recent days by top officials at Apple and the FBI. The tech company and the government have been sparring for months, mostly in tartly worded court filings, over the lengths the tech giant should go to help law enforcement unlock iPhones involved in high-profile cases.
Last week, the government dropped a bid to force Apple to bypass a convicted Brooklyn drug dealer’s pass code so it could read data on his phone. That follows its abandonment last month of another order in a much-discussed case involving an iPhone used by San Bernardino shooter Syed Rizwan Farook.
On Tuesday, representatives for the Department of Justice and the FBI said that there is no active case in which those agencies are seeking similar orders against Apple.
In a congressional hearing last week, just days before govenment lawyers filed a request to drop the Brooklyn case, Bruce Sewell, Apple’s general counsel, said his company wanted to sit down with the FBI once the legal decks were cleared — as they now are.
“If we can get out of the lawsuit world, let’s start cooperating,” Sewell told Rep. Diana DeGette, D-Colo., who serves on the House of Representatives Subcommittee on Oversight and Investigations of the Energy and Commerce Committee, which held the hearing.
In remarks at an Aspen Institute event in London on Thursday, FBI Director James Comey struck a conciliatory tone, calling Apple “a fine organization” and said he was “not questioning its motivations” in its fight against the order in the San Bernardino case.
In fact, Sewell said in the Tuesday hearing, around the time the government first sought an order in the San Bernardino case to compel Apple to unlock Farook’s iPhone, Apple and the FBI had been working on brokering a meeting.
‘Smart people’
Here’s how Sewell described his proposal to the subcommittee: “We’ll send some smart people to Washington, or you send some smart people to Cupertino, and what we’ll do for that day is that we’ll talk to you about what the world looks like from our perspective. What is this explosion of data that we can see? Why do we think it’s so important?
“And you talk to us about the world that confronts their investigators from the moment they wake up in the morning. How do they think about technology? How do they think about the problems that they’re trying to solve?
“That offer still exists. That’s the way we’re going to solve these problems.”
"We want that to be facilitated,” said Rep. Tim Murphy, R-Pa., the subcommittee’s chairman. “We have too many lives at stake and the concerns of many families and Americans. This is central. This is core.”
In both cases, law enforcement agents ended up finding ways to unlock the iPhones without Apple’s help. In New York, an unnamed individual came forward with the device’s pass code, which yielded the data the government sought.
In the California case, the FBI paid a security researcher more than $1 million to craft a tool to crack the iPhone.
In court filings in both the New York and California cases, Apple has argued that law enforcement should exhaust such avenues before seeking court orders to compel it to create custom hardware or software.
But a key question — which Apple and the government surely would have to sort out in the kind of meeting Sewell proposed — is whether such efforts can possibly “scale,” in Silicon Valley parlance, or prove feasible in the face of a growing number of cases that involve locked smartphones.
Seeking a solution
“I'm hoping that we can somehow get to a place where we have a sensible solution or set of solutions that doesn't involve hacking and doesn't involve spending tons of money in a way that's unscalable,” Comey said at the London event Thursday.Senators Dianne Feinstein, D-Calif., and Richard Burr, R.-N.C., recently proposed a bill that would require technology companies to build their products in such a way that they could decrypt data stored on devices when presented with a court order. The language of the draft bill suggests that companies — like Apple — that build devices that only users, not the companies themselves, can unlock are placing themselves “above the law.”
At last week’s congressional hearing on encryption, Matt Blaze, an associate professor in the computer and information science department at the University of Pennsylvania, who has been involved in the encryption debate for decades, expressed doubts that such proposals would work technically, even if they were desirable from a public policy perspective.
It’s not clear whether the meeting Sewell proposed will happen. An Apple spokesman declined to expand on Sewell’s remarks. But if it does, both sides will have plenty to talk about.
©2016 the San Francisco Chronicle Distributed by Tribune Content Agency, LLC.
