Congress hears arguments in iPhone privacy debate

WASHINGTON—Top officials from the FBI and Apple testified before the House Judiciary Committee on Tuesday, furthering a debate that could create a precedent for the balance between civil liberties and fighting terrorism.

The frenzy boils down to the FBI’s desire to crack the passcode of an iPhone 5C used by one of the shooters in the San Bernardino, Calif., attack that killed 14 Americans in December. Last month, a federal judge in California issued an order compelling Apple to assist the FBI with its investigation by making a way to access the phone’s data. But Apple has grave concerns preventing it from full compliance.

“We can all agree that this is not about the access to one iPhone,” said Bruce Sewell, Apple’s general counsel. “It will create a dangerous precedent going forward.”

Sewell said unlocking this one iPhone could lead to the compromise of the data of hundreds of millions of iPhone users. With dozens of lawmakers in the room, he explained what is at stake: “Some of you probably have an iPhone in your pocket right now and a thief can probably get more information from that one device than breaking into your house,” Sewell told the committee. “The only way we can protect all of that sensitive information is through strong encryption.”

Before Sewell testified, committee chairman Rep. Bob Goodlatte, R-Va., and ranking member Rep. John Conyers, D-Mich., grilled FBI Director James Comey.

Conyers went as far as to question Comey’s intentions, saying he hoped this was not a way for the FBI to get any information it wants: “I would be deeply disappointed if it turns out the government is found to be exploiting a national tragedy to pursue a change in law.”

Comey fielded questions for nearly three hours. He said this quandary is the most difficult he has faced in government, and he knows mishandling it could impact the personal security of millions.

But Comey remained adamant that what he is asking from Apple is not unreasonable.

“We are asking Apple to take the vicious guard dog away and let us pick the lock,” he said.

The FBI has the iPhone from the San Bernardino shooter and the computing power to guess the numerical passcode in a matter of minutes. But to do that, Comey explained, the FBI needs Apple to do three things: disable the function that erases the phone’s data after multiple wrong guesses; suppress the software that increases the wait-time between wrong guesses; and allow for electronic guesses so a physical person does not need to manually input each guess.

Some Republicans in the room scoffed at the FBI director’s detailing these requests, not buying the premise it needs Apple’s engineers to accomplish this.

“The FBI is the premier law enforcement organization with laboratories that are second to none in the world,” Rep. Darrell Issa, R-Calif., said to Comey. “Are you testifying today that you or the contractors you employ could not achieve this?”

Other conservatives such as Rep. Trey Gowdy, R-S.C., were more sympathetic to the FBI’s security concerns. He said he feared creating “evidence free-zones,” in which terrorists could operate as they please without fear of prosecution.

Sewell claimed Apple had no sympathy for terrorists and expressed condolences for those who died in San Bernardino last year, but would not budge on his position.

“This is not about what happened in San Bernardino, this is about the safety and security of every iPhone,” Sewell said.

He also clarified that even though the FBI is requesting something that does not exist yet, Apple’s engineers are capable of creating the required software.

Apple gained a major legal victory Monday when a federal magistrate judge in New York rejected a government request to force the company to extract data from a different locked iPhone. The case pertained to a drug offense, not national security, but it involved the same 1789 law the FBI invoked for San Bernardino. In both cases, the government filed motions that Apple had to assist in unlocking the phones under the authority of the “All Writs Act.”

The technology giant remains resolute that the law is outdated and Congress should pass new legislation to help better strike the balance between private liberties and national security. But Congress is hesitant to rule on the case just yet. Members fear passing a law with such far-reaching consequences.

“I heard all the time in law school that bad cases make bad laws, and I think this is a prime example,” said Rep. Zoe Lofgren, D-Calif. “We’re moving to a world where everything is going to be digital. … What [the FBI is] asking might make nothing private.”