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FBI Plans for Terrorist’s IPhone Roil Congress

WASHINGTON (CN) - With their fight over an impenetrable iPhone poised to shape the balance between privacy and security, the FBI and Apple both urged Congress to intervene on their behalf Tuesday.

The debate coming to a head on Capitol Hill stems from the bureau's request that Apple create a new operating system to help it unlock the iPhone 5 used by Syed Farook, one of the attackers behind the December 2015 shooting rampage that left 14 dead and 22 injured in San Bernardino, Calif.

FBI Director James Comey told the House Judiciary Committee on Tuesday that Farook's phone will wipe itself if agents trying to predict the shooter's security code enter the wrong pin 10 times.

Without this security feature, the FBI would need just 26 minutes to "guess" Farook's password, Comey said.

Though a federal magistrate ordered Apple to help unlock the phone, the company has refused, arguing that the ruling would fundamentally change its product and set dangerous precedent.

In support of its request, the FBI has relied on an 18th century law called the All Writs Act, commonly used for search warrants.

Apple says there is nothing in the statute however that requires it to rewrite code so that it can comply with government requests.

The friction between law enforcement and iPhone security is nothing new, but Apple's resistance to breaking Farook's phone has put a spotlight on the issue.

Just one day ahead of this hearing, a federal judge refused to make Apple comply in an unrelated New York case involving a suspected drug trafficker.

Saying the debate belongs in Washington, U.S. Magistrate Judge James Orenstein said "it would betray our constitutional heritage and our people's claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789."

That debate was in full force Tuesday at the hearing room on Capitol Hill.

Denying Apple's claim about the far-reaching implications of this issue, Comey assured members of Congress that the San Bernardino iPhone case is narrowly tailored.

"This case in San Bernardino is not about the FBI, it's not about Apple, it's not about Congress, it's not about anything other than trying to do a proper investigation in an ongoing and active case," Comey said.

Despite his efforts to downplay the scope of the FBI's request, however, Comey conceded that a court forcing Apple to help unlock the phone could "potentially" create a precedent in the sense that any decision by any judge creates one."

"There's already a door on that iPhone," Comey said. "Essentially we're asking Apple to take the vicious guard dog away and let us pick the lock."

Before his death in a gun battle with police after the San Bernardino massacre, Farook used an iPhone 5c running Apple's iOS 9 operating system.

Comey emphasized that Apple is already pushing this combination out with newer models that will not be able to use the same back door Apple would create to unlock Farook's phone.

Members of Congress seemed resistant to giving the FBI broad authority to compel help from private companies in getting around their devices' security measures.


Rep. Darrell Issa asked Comey if the FBI had taken every step possible to break the phone in ways that wouldn't require Apple to build a new operating system. A former tech CEO himself, Issa inquired whether the FBI had asked Apple for its source code so bureau employees or contractors could take on the job of modifying it.

"If you haven't asked that question, the question is how can you come before this committee and a federal judge and demand that somebody else invent something, if you can't answer the questions that your people have tried this?" Issa asked.

Though unable to answer some of Issa's more technical question, Comey assured the congressman that the FBI took advantage of every resource it had to break into the phone.

Comey did acknowledge that the FBI had requested the county change the password to the iCloud account associated with Farook's phone to try to break it, meaning the phone would no longer back up to the more easily broken cloud.

Other members of Congress, notably Rep. Trey Gowdy, R-S.C., sided closer with the FBI when weighing privacy and security. Gowdy pointed out the government routinely forces defendants to undergo surgery to remove evidence like bullets from their bodies.

"If you can penetrate in the integrity of the human body in some categories of cases, how the hell you can't access a phone I just find baffling," Gowdy said.

Comey said the question in this case is the hardest he has confronted in government, but warned that increasing privacy can sound like a good thing in theory but be damaging in practice.

"Privacy is awesome, but stopping this kind of savagery, and murder and pedophilia, and the other things that hide in the dark spaces of American life, is also incredibly important to us," Comey said. "That's why this conversation matters so much."

Taking the witness table after Comey finished roughly three hours of testimony, Apple Senior Vice President and General Counsel Bruce Sewell almost immediately drew a sharp distinction to his FBI counterpart by discussing the larger security interests at stake if Apple were to make a back door into its phone.

"If what happens here is that Apple is forced to write a new operating system, to degrade the safety and security of phones belonging to tens of hundreds of millions of innocent people, it will weaken our safety and security but it will not affect the terrorists in the least," Sewell said.

Sewell condemned the government's theory that Apple is taking a stance against the FBI for marketing purposes.

"Every time I hear this my blood boils," Sewell said. "This is not a marketing issue. That's a way of demeaning the other side of the argument. We don't make billboards that talk about our security. We don't take out ads that market our encryption. We're doing this because we think that protecting the security and the privacy of hundreds of millions of iPhone users is the right thing to do."

The committee generally seemed more sympathetic to Apple's claims than they were to the FBI's, though both panels spurred civil discussions, unlike some similar hearings on the Hill.

Comey said there are no "demons" in the debate between his agency and Apple, and that it is not Apple's job to promise civil liberties to the American people.

But what Congress ought to do to answer the privacy and security question remained unanswered at Tuesday's hearing.

Sewell admitted he did not have a legislative proposal to give the committee, which rankled Rep. Jim Sensenbrenner, R-Wis.

"You haven't said what Apple would support," Sensenbrenner said. "So all you've been doing is saying no, no, no, no."

Sewell promised Apple would come up with legislation after the debate over the balance between the competing concerns had wrapped up.

While the hearing made it clear the FBI and Apple stand on vastly different sides of debate over protecting individual privacy and national security, they agreed Congress needed to give some guidance in how to go forward in a new era of technology.

Members did hear some policy recommendations from Susan Landau, a professor at Worcester Polytechnic Institute, who said Congress must step in to let the FBI develop tools that would allow it to act without companies.

"Your job is to help the FBI build such capabilities, determine the most efficient and effective ways that such capabilities can be utilized by state and local law enforcement, for they don't have the resources to develop that themselves, and also fund that capability," Landau said.

Landau added that a back door in a phone would make it possible for criminals to steal business information or other data that could be used to attack vulnerable systems.

Comey suggested the courts would be sufficient to answer questions specific to the San Bernardino phone and the All Writs Act, but acknowledged Congress would have to get involved eventually.

"I think that the courts are competent - and this is what we have done over the past 230 years - to resolve the narrow question about the scope of the All Writs Act," he said. "But the broader question we're talking about which here goes beyond phones and far beyond any case, this collision between public safety and privacy, the courts cannot resolve."


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