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Here Are the Most Interesting Things Apple and the FBI Said About Encryption

We sat through five hours of House Judiciary Committee testimony on encryption so you didn't have to.

Drew Angerer / Getty Images

Apple finally got the forum it was looking for to air its views on strong encryption: Congress.

General Counsel Bruce Sewell came prepared Tuesday to answer questions about the intricacies of the Justice Department’s request to help it unlock an iPhone used by one of the shooters in the San Bernardino attacks — and the Constitutional questions the government’s case raises.

Oddly, though, Sewell offered no recommendations when asked, pointedly, by members of the House Judiciary Committee, how Apple proposes lawmakers strike the proper balance between consumer privacy and security and national security.

“I don’t have a solution,” Sewell said, at one point in testimony Tuesday. “What we need to do is give this an appropriate and fair hearing.”

That didn’t satisfy Rep. Jim Sensenbrenner of Wisconsin, who introduced the Patriot Act expanding surveillance in the aftermath of the Sept. 11, 2001, attacks.

“You’ve told us what you don’t like. You’ve said you want Congress to debate,” Sensenbrenner said. “You haven’t told us one thing that you do like, so that Apple has a positive solution to what you are complaining about … All you’ve been doing is saying ‘no, no, no, no.'”

That was one of the more prickly exchanges over the course of the five-hour House Judiciary Committee hearing on encryption. (It happened twice, hinting at the challenges that lie ahead as the technology industry argues the case for encryption with Congress’ law and order types.)

Here are some other highlights:

  • FBI Director James Comey shifted from his shopworn phrase about “going dark” and instead talked about Apple and other technology companies using encryption to create “warrant-proof spaces in our lives.” Naturally, this is a technological development that law enforcement sees as a giant roadblock to gathering evidence in criminal investigations. He also admitted the bureau screwed up when it changed the Apple ID password on the shooter’s phone.
  • Comey defended the use of the venerable All Writs Act to force Apple to write software that would disable security features on the iPhone used by one of the shooters, Syed Farook, so law enforcement can guess its password. “The Constitution is as old or older than the All Writs Act — and it’s still a pretty good document.”
  • The FBI director said the government’s request is limited to one phone and one case: The terrorist attack in San Bernardino. But he acknowledged that the outcome of the legal battle could “potentially” set a precedent for other courts evaluating similar requests from law enforcement. Sewell rejected the one-and-done argument. “Once you take that step, once you create the mechanisms to unlock the phone, then you’ve created a back door,” Sewell said.
  • Comey found a colorful, colloquial way to describe what the government is asking of Apple: “Take away the drooling watchdog that would attack us so we can pick the lock.” He said the software the court has ordered Apple to develop would have limited utility, applying to the older generation iPhone 5c but not more current models. That’s a claim Apple’s Sewell dismissed: “The tool we’re being asked to create will work on any iPhone in use today — it’s extensible.”
  • The FBI and the intelligence community lack the technical ability to bypass the encryption on the iPhone. “If we could have done this quietly and privately, we would have done this,” Comey said. Cyber security expert Susan Landau told Judiciary Committee members that the NSA is “loath to share” its technology for fear its capabilities will be exposed in a court case (presumably she’s talking about details not already laid bare by whistleblower Edward Snowden).
  • Comey largely avoided the language the Department of Justice used in its legal filings, which accused Apple of using security as a marketing ploy. But he did seemingly chafe at Apple’s framing of its objections as rooted in consumers’ rights. “They sell phones, they don’t sell civil liberties,” he said. “That’s our business to worry about.” Sewell said it “makes my blood boil” to hear the government demean Apple’s legal arguments and intentions. “We do this because we think protecting the privacy and security of millions of iPhone users is the right thing to do,” Sewell said.
  • Sewell succinctly laid out Apple’s Constitutional arguments: That the Supreme Court recognizes computer code as a form of speech, and the government is compelling it to speak in a way that Apple does not wish to speak. The court order also violates the Fifth Amendment protections against coercion, he alleges.
  • Apple talked about its fears that, once created, this mutant form of its mobile operating system — the one that effectively disables password protection — will wind up in the wrong hands, thereby exposing hundreds of millions of consumers to vulnerabilities. Sewell noted that the government wants Apple to put the software on a hard drive and send it to the FBI, which could load it on another computer.
  • Manhattan District Attorney Cyrus Vance Jr. said Apple’s move to harden encryption of its devices has altered the balance between a citizen’s right to privacy and law enforcement’s ability to investigate crimes. “I don’t ask you to take my word for it,” Vance testified, noting that one inmate in Rikers Island made a recorded call from jail in which he described Apple’s iOS 8 as “a gift from God.” New York Rep. Hakeem Jeffries said Vance’s testimony illustrates the point that bad actors will make a mistake. “At the same time he’s heralding the availability of encryption technology to shield his activity from law enforcement, he’s ignoring a plain-view sign that these conversations are recorded,” Jeffries said. “I have faith in your ability to outsmart the bad actors.”

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