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FBI and Apple take iPhone battle to House committee hearing

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'If there are warrant-proof spaces in American life, what does that mean?'

Today, members of the House Judiciary Committee got a front-row seat to Apple's legal battle with the FBI, in a hearing entitled The Encryption Tightrope. The committee took testimony from FBI Director James Comey, Manhattan District Attorney Cyrus Vance, and Apple General Counsel Bruce Sewell, each of whom made a case for their side of the increasingly contentious San Bernardino case.

The hearing began with testimony from FBI Director James Comey, who portrayed encryption as a long term threat to the techniques of law enforcement. "I believe that the logic of encryption will bring us, in the not too distant future, to a place where all of our papers and effects are entirely private," Comey told the committee, arguing that such a scenario would make investigation impossible. "If there are warrant-proof spaces in American life, what does that mean? What are the costs of that?"

The strongest criticism of that case came from Representative John Conyers (D-MI), who portrayed the FBI's San Bernardino arguments as a circumvention of congressional power. "What concerns me, Mr. Chairman, is that in the middle of an ongoing debate on this subject, the Federal Bureau of Investigation would ask a federal magistrate to give them the special access to secure products that this committee, this Congress, and this administration have so far refused to provide," Conyers said. "I would be deeply disappointed if it turns out that the government is found to be exploiting a national tragedy to pursue a change the law."

"If there are warrant-proof spaces in American life, what does that mean?"

More specifically, Director Comey dismissed speculation that the San Bernardino phone could have been unlocked by exploiting undisclosed vulnerabilities in the phone's security system, typically a specialty of the National Security Agency. Comey said the bureau had consulted extensively with other agencies, but was unable to secure any tool or method that would break Apple's security measures. "If we could have done this quietly and privately, we would have done it," Comey told the committee.

Apple General Counsel Bruce Sewell also appeared before the committee, giving prepared testimony and taking questions from the committee. Sewell was particularly emphatic that the push for encryption was not a recent move for Apple. "We haven’t suddenly come to the notion that encryption, security and privacy are important," Sewell told the committee. "At Apple, this began back in 2009 with our encryption in Facetime and iMessage."

"We don't put up billboards that talk about our security."

Sewell pushed back against the Department of Justice's suggestion that Apple's objection to the FBI order was a marketing issue. "We don't put up billboards that talk about our security," Sewell said. "We’re doing this because we think protecting the privacy and security of hundreds of millions of iPhone users is the right thing to do. To say that it’s a marketing issue or it’s somehow about PR diminishes what should be a very serious conversation."

The hearing comes amid growing pressure for Congress to act on the issue, either explicitly limiting or explicitly granting the warrant powers sought by the FBI. Earlier this week, Congress introduced a bill that would form a National Commission on Security and Technology Challenges. "Technology companies and law enforcement both have raised serious public policy questions," said Representative Eric Swalwell (D-CA), who co-sponsored the bill. "It’s time to work together."

At the same time, a number of representatives at the committee seemed wary of crafting legislation in direct response to the San Bernardino case. In an editorial in the Los Angeles Times, Representative Darrell Issa (R-CA) and Representative Zoe Lofgren (D-CA) argued against both the FBI's legal order and any legislation that would support it, claiming Congress should be "prohibiting government-mandated backdoors that intentionally undermine and undercut the development and deployment of strong data-security technologies."

Some members of the committee echoed that perspective. "We say that bad cases make bad law," Representative Raul Labrador (R-ID) told Director Comey during the hearing. "This is clearly a bad case."