FBI Director James B. Comey acknowledged Tuesday that a bureau victory in a legal battle over access to data on an encrypted iPhone could “potentially” let investigators cite the case in future bids to hack cellphones, but he denied that a legal precedent was driving FBI interest.
Mr. Comey sought to sell Congress on the FBI’s stance that it should be able to force tech giant Apple to create a way for investigators to crack the four-digit passcode on the phone used by one of the San Bernardino shooters in order to gain access to data on it. But he found a tough audience, with lawmakers questioning the bureau’s motives in taking the issue before the courts rather than requesting help from Congress in the first place.
“Given that Congress has explicitly denied you that authority so far, can you appreciate our frustration that this case appears to be little more than an end run around this committee?” asked Rep. John Conyers Jr. of Michigan, the ranking Democrat on the House Judiciary Committee.
Mr. Comey said he has not asked for a legislative fix to the encryption issue, but noted the broader issue might have to be taken up by lawmakers.
“Some folks have said, so in the middle of this terrorism investigation, why didn’t you come to Congress? Well, cause we’re in the middle of a terrorism investigation,” Mr. Comey said. “I think the courts will sort that out faster than any legislative body could, but only in that particular case. The broader question [is] I don’t see how the courts can resolve this tension between privacy and public safety.”
Tuesday’s hearing comes as Apple and the FBI are locked in a legal battle over a court order issued last month that forces the company to create a way for the FBI to hack the password-protected iPhone 5c used by now-deceased San Bernardino shooter Syed Rizwan Farook. Apple General Counsel Bruce Sewell said Tuesday that doing so will undermine the security of the company’s technology and create a template for law enforcement to break into any current model of iPhone.”
It will weaken our safety and security, but it will not affect the terrorists,” Mr. Sewell said.
Rep. Bob Goodlatte of Virginia, chairman of the Judiciary Committee that held Tuesday’s hearing, sought to clarify the scope of the FBI’s request in the San Bernardino case.
“If the FBI is successful in requesting Apple to unlock its phone, that won’t really be a one-time request, correct?” Mr. Goodlatte said.
“Well the issue of locked phones, certainly not,” Mr. Comey said.
“But it will set a precedent for other requests from the Federal Bureau of Investigation and any other law enforcement agency to seek the same assistance in many, many, many other cases?” Mr. Goodlatte said.
“Sure, potentially,” Mr. Comey said. “Because any decision of a court about a matter is potentially useful to other courts.”
His testimony comes a day after the Justice Department was dealt a blow in a case that relied on similar legal tactics as the San Bernardino case. A federal judge ruled Monday that the DOJ had no legal justification for demanding Apple’s help in gaining access to a locked iPhone in a drug case out of New York.
Regardless, prosecutors from across the country are lining up, ready to put the technique to use if a California judge upholds her prior order in the San Bernardino case.
Manhattan District Attorney Cyrus R. Vance Jr. testified Tuesday that his office has been unable to unlock 205 out of 734 Apple devices his office has seized as part of evidence in cases under investigation. During Tuesday’s five-hour-long hearing, lawmakers also peppered Mr. Comey with questions about both the ongoing investigation into the San Bernardino terrorist attacks that killed 14 people and injured 21 others, and the FBI’s attempts to hack the phone in question.
Rep. Jerrold Nadler, New York Democrat, asked Mr. Comey to explain reports that FBI investigators changed the password on the iCloud account linked to the cellphone, thereby blocking attempts to access backup data from the phone.
The question prompted Mr. Comey to call the action “a mistake” made during the early stages of the investigation. But he said he believed investigators would still face the same barrier to gaining access to data on the phone because not all information would necessarily be backed up to the iCloud.
Lawmakers appeared to be mulling over the possibility of creating legislation that could address the issues, with some asking witnesses for compromises that Apple might agree to and others seeking to understand whether terrorists and criminals would just find other ways to work around limits on encryption if they were enacted.
Rep. F. James Sensenbrenner Jr., Wisconsin Republican, said he had yet to hear a suggestion from Apple outlining a solution the company thought was an acceptable compromise and encouraged them to come up with some.Otherwise, he said, “I don’t think you are going to like the law that comes out of Congress.”
• Andrea Noble can be reached at anoble@washingtontimes.com.
Please read our comment policy before commenting.