FBI, Apple clash before Congress as encryption fight simmers

WASHINGTON – The U.S. government calls it a “vicious guard dog” that hurts national security. Apple says it’s critical to protecting consumer privacy against increasingly sophisticated hackers.

As the debate over built-in iPhone encryption has deadlocked in the courts, law enforcement and the world’s second-largest cellphone maker agreed on one point Tuesday: It’s now up to Congress to set boundaries in a long-simmering fight over who can legally access your digital life.

“There’s already a door on that iPhone. We’re asking Apple to take the vicious guard dog away and let us pick the lock,” FBI Director James Comey told a House judiciary panel on encryption Tuesday.

“The FBI is asking Apple to weaken the security of our products,” Apple general counsel Bruce Sewell countered later that afternoon.

Tuesday’s hearing shifted attention from the courts – where judges in the last month have issued significant but conflicting opinions – to Congress, where both sides say the policy debate belongs.

The hearing also provided an extraordinary public forum for the Obama administration and Apple Inc. to stake out competing positions that could have sweeping ramifications. Apple’s recent opposition to bypassing security features for the government has pushed that dispute from tech circles into the mainstream.

The strong positions articulated Tuesday make clear the deep divide between Silicon Valley and the government, even as the Obama administration advocates open dialogue and resolution.

“Is it the right thing to make our society overall less safe in order to solve crime? That’s the issue we’re wrestling with here?” Sewell asked.

On Monday, a federal judge in Brooklyn said the Obama administration couldn’t force Apple to help it gain access to the phone in a drug case. U.S. Magistrate Judge James Orenstein said Justice Department attorneys were relying on the centuries-old All Writs Act to “to produce impermissibly absurd results.”

But two weeks ago, a different magistrate judge in California, Sheri Pym, directed the company to help the FBI hack into a locked iPhone used by one of the shooters in the December attack in San Bernardino, California, that killed 14 people.

With those two conflicting rulings in mind, Congress needs to get involved to address the broader collision between private safety and public safety, according to both the FBI and Apple.

Regarding the San Bernardino case, Comey said, “Other courts, other prosecutors, other lawyers, other companies will look to that for guidance.”

That case involves an iPhone 5C owned by San Bernardino County and used by Syed Farook, who was a health inspector there. He and his wife, Tashfeen Malik, later died in a gun battle with police.

Comey acknowledged Tuesday there “was a mistake made” shortly after the San Bernardino attack, when the FBI asked the county – which owned the phone – to reset the password for Farook’s iCloud account.

That data, stored on Apple servers, kept backups of his phone. Had the password not been reset, the phone may have made a fresh backup available to investigators for further examination. Still, Comey said, “The experts tell me there’s no way we would have gotten everything off the phone from a backup.”

Republican Rep. Darrell Issa of California, a critic of the administration’s domestic surveillance practices, asked Comey whether the FBI had first asked Apple for the underlying iPhone software – called source code by developers – before trying to force the company to create its own digital workaround.

Issa suggested the FBI hasn’t exhausted its own efforts before the government went to court. Comey said the government has tried hard to break into iPhones, like the one in California, but he seemed unaware if those methods were successful.

The Obama administration last year decided against a legislative fix. Now, “Congress must decide this issue,” said Sewell, while also criticizing the U.S. government for simultaneous supporting encryption used by activists and journalists in countries with fewer free-speech rights.

House Judiciary Chairman Bob Goodlatte said technology is moving toward newer generations of encryption and security, and “we’re going to have to figure out a different way to help law enforcement.”

“But I don’t think we’re going to say we’re not going to ignore the vulnerabilities that exist,” said Goodlatte, a Republican from Virginia. “And not change the fact that law enforcement is going to have to change the way it investigates and gathers evidence.”

Alex Abdo, a staff lawyer with the American Civil Liberties Union’s speech, privacy and technology project, said the debate is “ultimately about whether we trust our devices.”

“If the government prevails, then there is nothing to stop it from turning every major tech company into a tool of government surveillance,” Abdo said. “Companies will be required to spy on, rather than secure, their customers.”