The conflict between Silicon Valley and Washington, D.C., over encryption engulfed the media this week, inflamed by a federal judge’s ruling that Apple should be forced to assist authorities in accessing the contents of one of the company’s devices. Yet while a number of familiar faces in Congress used the occasion to renew calls for quick legislative action, it remains uncertain that anything will materialize from the ordeal.
“The newest Apple operating systems allow device access only to users — even Apple itself can’t get in. Murderers, pedophiles, drug dealers and the others are already using this technology to cover their tracks,” Senate Intelligence Chairman Sen. Richard Burr, R-N.C., wrote in a column Thursday for USA Today.
“We are a country of laws, and this charade has gone on long enough. Apple needs to comply with the court’s order,” Burr added. Aides to the senator suggested that he would soon present legislation to impose civil penalties on companies that refuse to comply with such orders.
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It is not the first time Burr has announced an ambitious plan to take action on a matter related to encryption. Following the Dec. 2 terrorist attack in San Bernardino, Calif., Burr and Sen. Dianne Feinstein, D-Calif., announced plans to propose legislation that would weaken encryption, contending that the terrorists may have used it as part of their plans.
That legislation never materialized, and it is not clear what it would look like. It could seek to ban end-to-end encryption, forcing companies like Facebook and Apple to stop offering products that come equipped with it. However, it would also need to take measures to prevent smartphone users from installing foreign messaging applications, like the Berlin-based Telegram, that offer the same feature, and it would need to somehow prohibit devices manufactured by foreign companies from being allowed in the United States.
The confluence of technical and legal obstacles involved with writing that legislation would be daunting, which may be one reason it failed to emerge before Burr announced his latest intentions.
To its credit, the latest proposal would be a bit more simple. It would simply require that companies do more to help bypass security on their own products, which would not inherently involve encryption. In the current case, Apple has been ordered to create software for the Federal Bureau of Investigation that could be installed on an older version of one of its devices, an iPhone 5C, that would deactivate an auto-destruct feature that kicks in when an incorrect password is entered more than 10 times.
It is not known whether anything of interest is on the device. It is conceivable that the perpetrators could have used its iMessage feature to communicate with iPhone users on a secure basis, or they could have installed applications, like Telegram or Facebook’s WhatsApp, to communicate with others on a secure basis. Provided they communicated with others overseas, the latter is almost certainly the case, though it may still be the case that they did not transmit anything nefarious.
Yet even as Burr announced his latest attentions with unusual vigor, others in Congress voiced skepticism. Sen. Angus King, an Independent from Maine who caucuses with Democrats, said forcing Apple’s complicity could result in unforeseen consequences.
“It might push terrorists on to some other encrypted app that we can’t get at, or some other way that we’d lose track of them,” King said in a Thursday interview with NPR. “It’s exactly what happened when [it was] revealed that we knew the terrorists were using Yahoo Mail … They went somewhere else.”
Speaking in late January, Senate Homeland Chairman Ron Johnson, R-Wis., was more explicit in talking about the consequences of tampering with encryption. “I would say the definition of Washington, D.C., is negative unintended consequences,” he said.
“Is it really going to solve any problems if we force our companies to do something here in the U.S.? It’s just going to move off shore. Determined actors, terrorists, are still going to be able to find service providers that will be able to encrypt accounts,” Johnson added.
Sen. Ron Wyden, D-Ore., who sits on the Senate Intelligence Committee with Burr and Feinstein, pointed out those international implications in comments to The Guardian on Thursday.
“This move by the FBI could snowball around the world. Why in the world would our government want to give repressive regimes in Russia and China a blueprint for forcing American companies to create a backdoor?” Wyden said. “Companies should comply with warrants to the extent they are able to do so, but no company should be forced to deliberately weaken its products. In the long run, the real losers will be Americans’ online safety and security.”
Though there is considerable opposition to proposals that would weaken privacy, there is also something to be said for the intensity of those who feel differently. Sen. Tom Cotton, R-Ark., who sits on the Senate Armed Services Committee, reiterated the accusation that Apple’s main customers are pedophiles and terrorists in a Wednesday statement. “Apple is becoming the company of choice for terrorists, drug dealers, and sexual predators of all sorts,” he said.
The passion on each side means that, in spite of renewed interest in the issue, it is uncertain what will emerge from a legislative standpoint. On Thursday, that dynamic had at least one lawmaker largely disregarding the legal debate later in the week, pleading with Apple to resolve the issue on its own and invoking the company’s higher ideals.
“[Apple] should not stand in the way of the FBI’s investigation into a dead ISIS terrorist, who has the blood of 14 innocent Americans on his hands,” said Rep. Mike Pompeo, R-Kansas.
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“This disappointing behavior is certainly not reflective of the innovative and successful Apple that I and many Americans know,” he said.
