The battle between Apple and the US Federal Bureau of Investigation continued in the nation’s capital yesterday (March 1) with congressional leaders grilling both parties in a five-hour-long judiciary hearing.
What the FBI wants is for Apple to help the government access an iPhone used by one of the San Bernardino shooters. Doing so requires Apple to create a special operating system, so it can bypass a security feature that wipes an iPhone’s data after too many unsuccessful attempts at unlocking the device.
“We’re asking Apple to take the vicious guard dog away and let us pick the lock,” FBI director James Comey said in his testimony.
Apple has refused to comply, calling a Feb. 16 order by a federal judge compelling it to help the FBI an example of government overreach and a First Amendment violation.
Though Apple and the FBI reiterated many of the same points they have made over the last few weeks, there were also a number of off-the-cuff and colorful moments that came during the representatives’ questioning.
The FBI director got schooled on security
Comey got an earful from congressman Darrell Issa for not being able to answer a number of technical questions.
The California Republican wanted to understand whether the FBI tried every possible solution to access the iPhone 5c in question, which belonged to Syed Rizwan Farook’s employer, the county of San Bernardino. Issa, who comes from the security world, was unimpressed that the FBI hadn’t thought to ask Apple for the iPhone’s source code, and posited that the agency perhaps could unlock the device by creating copies of the device’s memory, which potentially would allow the FBI to try as many unlocking combinations as necessary without losing valuable information.
“How can you come before this committee, before a federal judge, and demand that someone else invent something if you can’t answer the questions that your people have tried this?” he asked.
Comey’s responses during the five-minute Q&A session included: “I don’t know,” “I don’t know if that would work,” “I have no idea,” I’m not sure I’m following the question,” “I did not ask the questions you’re asking me here today,” and, “If I could answer that question, there would be something dysfunctional in the leadership.”
Apple got called out for not offering any solutions
Though Comey bore the brunt of the tough questions, Apple wasn’t off the hook. Bruce Sewell, the company’s counsel, was asked by multiple questioners on the panel if Apple had any proposed solutions to present.
“I don’t have a proposal,” Sewell answered. “I don’t have a solution for this. What I think we need to do is give an appropriate and fair hearing.”
That was enough to prompt Jim Sensenbrenner, a Republican from Wisconsin and a self-described privacy hawk, to tear into Apple: “All you’ve been doing is saying, ‘No, no, no, no,‘” he said. “The thing is, you ask Congress to do something, and I asked you what Congress should do. You said we have nothing. I said the FBI has provided specific policy proposals to ensure law enforcement can get this information.”
In the absence of any ideas from Apple, Sensenbrenner said, the congressman and his colleagues are “simply [left] to our own devices.” He went on: “We’ll be very happy to do that, but I can guarantee you won’t like the result.”
Criminals think iOS encryption is a “gift from god”
In his testimony, Manhattan district attorney Cyrus Vance Jr. called iOS 8 “warrantproof”—something criminals knowingly take advantage of. ”They are quite literally laughing at us, and they are astounded they have a means of communication totally secure from government reach,” he said.
To prove his point, the district attorney mentioned a recorded phone conversation at Rikers Island in which an inmate referred to encryption from iOS 8 as “a gift from god.”
The paper shredding analogy
“Aren’t we in a sense the equivalent of saying you can create something that destroys documents but you have to tell us how to defeat it?” Issa asked Susan Landau, a cybersecurity expert witness and a professor at Worcester Polytechnic Institute.
She replied: “That’s exactly right.”
With that setup, Issa went on to compare the iPhone feature that destroys the data on the device to paper shredding. He asked Vance, the Manhattan district attorney, if he has ever ordered a shredding company to “put the paper back together.” The DA’s response: “Of course I haven’t, congressman.”
And yet “you’re asking in this case for someone to create a product for your service,” Issa told Vance.
Precedent or not?
Before Apple or the FBI testified, Bob Goodlatte, chairman of the House judiciary committee, noted that “this particular case has some very unique actors involved and as such may not be an ideal case to set a precedent.”
Comey danced around the issue of whether the case would set a precedent for law enforcement to access locked phones. “Sure, potentially,” he said, “because any decision of the court is potentially useful to other courts, which is what a precedent is.” (Last week, Comey said he believed the case would “be instructive for other courts,” while falling short of saying the ‘p’ word.)
Vance, however, said he hopes the San Bernardino case will have a bearing on future cases. ”I do believe that what we should be seeking collectively is not a phone-by-phone-by-phone solution to access devices and the contents when there’s probable cause,” he said. “We should be creating a framework in which there are standards for a court to authorize access to a device.”