Lawmakers repeatedly pressed FBI Director James Comey about the implications of an ongoing case in California where federal agents want to gain access to a locked iPhone used by one of the San Bernardino shooters — one day after a federal judge in New York ruled that the company does not have to help investigators unlock an Apple device in a drug case.
Comey said in response to questions from members of the House Judiciary Committee that whatever the outcome of the California case, it would set a precedent that would be looked at by other courts and law enforcement agencies. He also acknowledged that the decision supported by the FBI to change the iCloud password on the seized phone soon after the shootings may have created “an issue,” complicating efforts to get information off the device.
He defended the FBI's request, however, for Apple to create a tool that would allow agents to use computers to guess passcodes on the iPhone until they got one right — something Comey claimed the bureau's computing power could achieve in 26 minutes.
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The hearing comes amid a renewed national debate about the security of the Internet and the devices used by millions of Americans every day, after the FBI asked a court to force Apple to help them get around safeguards on an iPhone 5C used by San Bernardino massacre shooter Syed Rizwan Farook, and owned by his employer.
“We are seeing more and more cases where we believe significant evidence resides on a phone, a tablet or a laptop — evidence that may be the difference between an offender being convicted or acquired,” Comey said in prepared remarks. “If we cannot access this evidence, it will have ongoing, significant impacts on our ability to identify, stop, and prosecute those offenders.”
Comey reiterated in response to lawmaker questions on Tuesday that the San Bernardino case was primarily about investigating the massacre, not establishing a legal precedent — a concern that's been raised by Apple and independent privacy advocates — while also saying the FBI has plenty of other phones it would like to open up.
"If I didn't do that, I ought to be fired, honestly," Comey said. The director acknowledged that any ruling made by the California court would likely be weighed in any similar future cases.
Asked how many other locked iPhones the FBI has in its possession, Comey responded, "I don't know the number. A lot. And they're all different which is what makes it hard to talk about any one case."
Apple general counsel and senior vice president Bruce Sewell and Comey fielded questions on consecutive panels during the hearing, titled “The Encryption Tightrope: Balancing Americans’ Security and Privacy.” Appearing on the second panel alongside Sewell were New York County District Attorney Cy Vance and Susan Landau, a professor of cyber security policy at Worcester Polytechnic Institute.
“Encryption is a good thing, a necessary thing,” Sewell testified in prepared remarks. “As attacks on our customers’ data become increasingly sophisticated, the tools we use to defend against them must get stronger too. Weakening encryption will only hurt consumers and other well-meaning users who rely on companies like Apple to protect their personal information.”
"This is not about the San Bernardino case. This is about the safety and security of every iPhone that is in use today," Sewell testified. "There's no distinction between a [iPhone] 5C and a 6 in this context. The tool that we're being asked to create will work on any iPhone that is in use today."
"To date we have not had demands like that from any other country," Sewell said regarding whether other countries had asked Apple for access similar to what the FBI is pursuing in California. "If we are ordered to do this, it will be a hot minute before we get those requests from other places."
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Though the case in California and the one in Brooklyn in which the judge ruled on Monday are separate, Apple will be sure to point to the favorable decision as it makes arguments.
Those cases were bound to dominate the congressional hearing on Tuesday — though neither of them directly addresses the larger issue of encryption: the practice of scrambling data so that it is indecipherable without a special key.
Once a tool of spies and military officials, the technology has become a part of everyday life, built into the fabric of websites, online commerce and the smartphones Americans carry in their pockets in an attempt to keep out hackers and prying governments. Amid that encryption explosion, the FBI director and other officials have for the past several years repeatedly voiced fears about terrorists and criminals "going dark," and using encryption technology to duck the attention of the law.
Read More: Apple Doesn't Have to Help the FBI in New York iPhone Case, Judge Says
“Law enforcement continues to see electronic surveillance in 20th century terms, and it is using 20th-century investigative thinking in a 21st-century world,” cybersecurity policy expert Landau said in her pre-written statement. “Instead of celebrating steps industry takes to provide security to data and communications, the FBI fights it.”
“Instead of laws and regulations that weaken our protections, we should enable law enforcement to develop 21st-century capabilities for conducting investigations,” Landau said.
On Monday, Republican Rep. Michael McCaul and Democratic Senator Mark Warner introduced legislation that would establish a 16-member commission tasked with examining ways to address the concerns of law enforcement while also protecting the privacy and security of technology users.
“The ongoing Apple vs. FBI dispute is only a symptom of a much larger problem,” McCaul, who is chairman of the House Homeland Security Committee, said in a statement.