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How Congress Fell Into Apple-FBI Skirmish

WASHINGTON, DC - MARCH 1:  Seats are reserved for Apple and Federal Bureau of Investigations representatives prior to the start of a House Judiciary Committee hearing titled
Seats are reserved for Apple and FBI representatives prior to a House Judiciary Committee hearing titled “The Encryption Tightrope: Balancing Americans’ Security and Privacy.” (Photo by Drew Angerer/Getty Images)

A high-stakes court battle between Apple Inc. and the FBI over access to data on a locked phone has drawn Congress into the broader public debate the case has raised.

The showdown was sparked by an order from a federal magistrate judge in California who ordered Apple last month to help the FBI unlock an iPhone 5C used by one of the two shooters who killed 14 people in San Bernardino, Calif., in December 2015. Apple asked the judge to toss out the order, arguing “it finds no support in law and would violate the Constitution.”

The case has raised a public debate about issues of privacy and security, and as a result tech companies, at least one federal judge and some lawmakers are looking to Congress to weigh in on what the standards should be when law enforcement requests access to data.

The issues raised by the pending court case, said House Judiciary Chairman Robert W. Goodlatte, R-Va., are “too complex to be left to the courts and must be answered by Congress.”

“This particular case,’’ he added at a hearing earlier this month, ‘’has some very unique factors involved and as such may not be an ideal case upon which to set precedent.”

During the same House Judiciary hearing, FBI Director James B. Comey admitted that the case could set a precedent.

The tech sector agrees. “Make no mistake: If the government prevails in this case, it will seek many such decisions,” a group of tech companies including Amazon, Facebook and Microsoft wrote in an amicus court brief filed in support of Apple.

What the Tech Industry Wants

A wide swath of the tech sector has lined up in support of Apple. The response signals a shift from the industry’s private conversations with the Obama administration to a very public and increasingly polarized debate that is certain to lead to wider ramifications.

Tech giants including Apple’s fierce competitor Google are asking lawmakers to weigh in about what law enforcement can compel them to do. They’re concerned that the government’s request to require Apple to create software to help unlock the iPhone would set a dangerous precedent that could weaken security for customers – and harm brands and business models.

But lawmakers’ considerations in the high-profile case are also likely to be influenced by public opinion and the appeals of some victims’ families that support the FBI.

Five people who had relatives killed in the attack and one whose wife witnessed the shooting but survived filed a court brief in support of the FBI’s request, saying that requiring Apple to help unlock the iPhone for the FBI to read its contents “may explain the motive for this senseless tragedy.”

The victims and families “want and need to know if they were purposefully targeted, if others in their community aided and abetted the crime, and if additional attacks targeting them or their loved ones are forthcoming,” they added.

Those impacted by the attack are not all in support of the FBI, though.

Salihin Kondoker, whose wife survived the shooting, wrote that as he learned more about the case, he realized Apple’s opposition is about “something much bigger than one phone.”

“They are worried that this software the government wants them to use will be used against millions of other innocent people. I share their fear,” Kondoker wrote.

Debate Turns Public

Congress will have to weigh these interests in a debate that is now the focus of intense public interest, although it’s in many ways a continuation of talks that have been ongoing between the tech industry and Obama administration, especially in the months since the attack.

The FBI’s Comey has repeatedly gone on Capitol Hill to tell lawmakers that encrypted devices pose a growing problem for law enforcement efforts, though last fall he said that the administration would not press for legislation.

A few months later, however, U.S. Magistrate Judge Sheri Pym in the Central District of California ordered Apple to enable the FBI to guess the device’s access code while bypassing or disabling the auto-erase function that would delete phone data after a certain number of failed attempts.

Soon after the order, Apple CEO Tim Cook wrote a letter to customers on the company’s website.

“In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession,” Cook wrote, explaining why Apple would oppose the government’s request.

Cook’s letter pushed the debate into the public sphere, and now it will be one that is hard for Congress to evade.

Many of the separate briefs from tech groups supporting Apple showed they’re now eager for lawmakers to set a policy on this issue.

A brief submitted in response to the court order and signed onto by the Consumer Technology Association – which alone represents more than 2,200 tech companies – asked Congress to weigh in. It issued a challenge to lawmakers to consider the economic fallout of whatever decision they make.

“If Congress wants to subject American businesses to burdens, it can do so explicitly,” the groups wrote.

Congress also could be persuaded to weigh in because of another court case between Apple and the federal government.

Magistrate Judge James Orenstein for the Eastern District of New York issued a 50-page order at the end of February finding that the government failed to make a persuasive argument that Apple had to unlock a phone involved in a drug-related case.

Orenstein also wrote that he believes the questions raised in the case would best be left to the legislative branch. He asserted that his decision to deny the government’s request for Apple’s assistance was not to be taken as him weighing in on the “competing values” at play.

“But that debate must happen today,” he wrote, “and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive.”

Congress Poised to Weigh In

Several lawmakers have made it clear they are ready to take up that debate.

The House Homeland Security chairman and a member of the Senate Intelligence Committee have reached across the aisle to push what they see as the best approach: a commission that would deliberate on digital security issues and eventually produce recommendations.

Legislation introduced at the end of February by Rep. Michael McCaul, R-Texas, and Sen. Mark Warner, D-Va., would create such a commission.

Meanwhile, Congress is giving both sides a chance to make their case.

Comey and Apple General Counsel Bruce Sewell testified before the House Judiciary Committee earlier this month. They reiterated their sides of the argument.

Bipartisan leaders of the House Energy and Commerce Committee have also invited Comey and Apple’s CEO to testify. It is unclear when that hearing will be scheduled and whether the two will appear.

The battle appears poised to drag on as each side looks to Congress or the courts to see where they can get the win they’re looking for – and one that could set new precedents in a difficult and divisive issue.


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