A bitter legal battle between Apple and the U.S. Justice Department is shifting to Capitol Hill, where both sides are urging members of Congress to pursue new ground rules for when tech companies must provide law enforcement with greater access to customers’ secure, private data.
In a fiery letter to employees Monday, Apple CEO Tim Cook urged the feds to back down in their request for access to a password-protected iPhone connected to the deadly San Bernardino shooting last year. While a judge initially sided with the DOJ — a decision Apple is challenging — Cook said the government should, “as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology, and civil liberties” to study the issue.
Meanwhile, FBI Director James Comey late Sunday night mounted a strong defense of his agency’s demands. But his op-ed, posted to the Lawfare blog, also seemed to offer a nod to Congress, acknowledging that new technology had created “serious tension between two values we all treasure: privacy and safety.”
“That tension should not be resolved by corporations that sell stuff for a living. It also should not be resolved by the FBI, which investigates for a living,” Comey wrote. “It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before.”
The statements offered a first glimpse of how the two adversaries may be seeking a release valve by shifting responsibility for resolving the debate to Congress. The landmark legal case has broad implications — for Apple and the rest of the Silicon Valley as well as law enforcement — for how tech companies will balance their customers’ privacy needs with the government’s demands during increasingly high-stakes terrorism investigations.
But Congress is fraught with great political risk for both Apple and the Justice Department. For every lawmaker like Sen. Ron Wyden (D-Ore.), a loud, vocal privacy advocate who has lambasted the government for its iPhone request, there are national security hawks like Sens. Richard Burr (R-N.C.) and Dianne Feinstein (D-Calif.), who lead their chamber’s Intelligence Committee and have proposed bills to help government crack secure communications.
That tension will likely be on full display March 1, when the House Judiciary Committee is set to hold a hearing on encryption of tech devices — a major sticking point between Silicon Valley and the feds. Apple and the FBI have been invited, but it’s not clear yet if Apple plans to testify. The House Energy and Commerce Committee last week also asked the company to come to Capitol Hill and offer its views on the issue. The White House decided not to pursue legislation on encryption last year.
At the same time, two key lawmakers — Rep. Michael McCaul (R-Texas) and Sen. Mark Warner (D-Va.) — are preparing this week to release a bill that proposes a commission to study the privacy and security implications of new technologies. While Cook appeared to reference such an idea, he did not explicitly highlight any legislation Apple currently supports. A spokesman for the company did not immediately respond to a request for comment.
In the Apple case, the DOJ successfully petitioned a federal court to require that the company install special software on an iPhone recovered near the San Bernardino attack site. It essentially would allow the government to try an unlimited number of passwords on the locked device, which is designed to delete its own contents after too many password attempts.
Comey on Sunday night stressed the case is about fully investigating the attack — and that it “isn’t about trying to set a precedent or send any kind of message.” But Apple, in a Q&A posted online today, said that “law enforcement agents around the country” are itching to use such a tool, describing it as the “equivalent of a master key, capable of opening hundreds of millions of locks.”