The standoff between Apple and the FBI over the locked iPhone belonging to one of the San Bernardino shooters has forced House and Senate lawmakers to begin examining private encryption and whether law enforcement should be allowed to bypass it in the name of national security.
It will start with a hearing in the House this week that will let both the company and the government make their cases, even as the two continue to fight in court over whether Apple should be required to unlock its phone for the government.
The House Judiciary Committee on March 1 will hold a hearing on the matter and question FBI Director James Comey. Comey is leading the federal government’s fight to get Apple to unlock the iPhone once used by Syed Farook, who along with his wife shot and killed 14 people in San Bernardino, Calif., in December.
Apple CEO Tim Cook will not be among the witnesses at the Judiciary Committee hearing, a GOP aide told the Washington Examiner. But Bruce Sewell, senior vice president and general counsel for Apple, Inc., is coming, according to the witness list.
Apple filed a motion this week to vacate a court order that said the company must provide the FBI with a way to break into Farook’s iPhone.
The company’s lawyers said if they were forced to comply and help the government access the phone, the security of Apple products would be damaged. They also believe it would set a precedent that would enable the FBI to break into devices well beyond Farook’s.
Judiciary Committee Chairman Bob Goodlatte, R-Va., said his panel is seeking a way to balance privacy rights while also protecting national security.
“The widespread use of strong encryption has implications both for Americans’ privacy and security,” Goodlatte said. “As technology companies have made great strides to enhance the security of Americans’ personal and private information, law enforcement agencies face new challenges when attempting to access encrypted information. Americans have a right to strong privacy protections and Congress should fully examine the issue to be sure those are in place while finding ways to help law enforcement fight crime and keep us safe.”
House Speaker Paul Ryan, R-Wis., told the Examiner he doesn’t plan on rushing into legislation.
“We have to solve it deliberatively, we can’t just do it knee-jerk,” Ryan said in an interview.
“We can’t treat this as Apple incident as just some one-off event,” he said. “We are always going to be confronted with these changes as new technologies roll out. And we do have to keep in mind our civil liberties. So we are basically going to get all of the information, have hearings, do this in a calm manner and figure out how can we have the right balance between national security and civil liberties.”
Some lawmakers want to move faster, fearing that encryption could endanger national security by preventing law enforcement from learning about terrorist plots.
Among them is Rep. Peter King, R-N.Y., a senior member of the Homeland Security Committee.
“To me you have to balance the equities of saving lives, stopping threats, against the remote fear that Apple has,” King said. “All they have to do is adjust the software. Do we want to create a world where terrorists and drug dealers have total security?”
In the Senate, Intelligence Committee Chairman Richard Burr, R-N.C., told the Examiner he hopes to advance a bill by March that would help law enforcement gain access to encrypted devices.
“It’s just going to reinforce the fact that the United States has a rule of law and we apply it equally,” Burr told the Examiner. “And when you get a legal court order, doesn’t matter if you are a CEO of a bank or a CEO of a tech company. You have to respond to a court order. You could ignore it and the court would take action or you could appeal it.”
Burr said his legislation would not target the Apple case specifically but would address all present and future technologies “that would provide law enforcement with the inability to make their case in court.”
Burr’s legislation would be tough to pass in the Senate. While he might find an ally in Senate Majority Leader Mitch McConnell, R-Ky., many other Senate lawmakers in both parties have become increasingly privacy-minded when it comes to technology.
And it would likely be impossible to move such a bill in the House.
The House has over the years veered further in the direction of enforcing privacy rights, and once passed a measure that would bar the federal government from forcing technology companies to provide “backdoor” access to electronic devices.
Ryan and House Minority Leader Nancy Pelosi, D-Calif., said they believe the House should not create a law that threatens the global dominance of the nation’s technology sector.
“Our commitment to protect and defend the American people is our first responsibility, and I believe that having a preeminence in technology globally is in the furtherance of our national security as we protect our privacy,” Pelosi said.
