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Under normal circumstances here in Washington, the process of listening to Congressional hearings is not high on the list of most folks’ favorite things. The hearings go on forever, and rarely include any actual information. This was not the case in Tuesday’s hearings before the House Judiciary Committee when it began shaking the truth out of both sides.
But other things have happened that cast some light on what’s really at stake in the issue of mobile data privacy. There was a court hearing Feb. 29 in New York in which a federal magistrate refused the Federal Bureau of Investigation’s request to order Apple to unlock another iPhone.
Unfortunately for Apple, the court also revealed what is likely behind Apple’s staunch refusal to cooperate with the government in the case of an iPhone that was used by the shooters in the killing of 14 county workers in San Bernardino, Calif. on Dec. 2.
U.S. Magistrate Judge James Orenstein ruled last week that the FBI couldn’t use the All Writs Act to force Apple to bypass the security of an iPhone 5S that was seized from an admitted drug dealer in New York.
His reasoning is that such an action would be against Apple’s commercial interests, especially since the company had no connection with the iPhone beyond selling it. The judge pointed out that Apple’s marketing of the iPhone was centered on the security of the encryption that the company used.
Congress, meanwhile, pressed FBI Director James Comey to reveal any further plans that the FBI and prosecutors might have beyond the device used by one of the San Bernardino suspects. Under intense questioning by the committee, Comey finally admitted that his agency does indeed plan to use the precedent of the court order forcing Apple to unlock that iPhone in future cases.
What this all boils down to is that despite Apple’s protestations, at least part of the reason the company is fighting the court order to bypass the security on the iPhone is because of marketing concerns. And despite the FBI’s protestations that in only needs Apple’s help on that one iPhone, the FBI’s intentions go far beyond that.
Considering that the Justice Department in support of the FBI, filed a motion with the judge in the San Bernardino case swearing that this request was strictly for just this one phone, Comey’s testimony demonstrates that the DoJ was once again playing games with the truth.
In fact, it appears that this whole mess is more of a manufactured crisis than a real one. Until the San Bernardino court order, Apple has been routinely helping the FBI get past its security, and had done so in at least 70 other cases. The FBI, for its part, only asked for the court order because its agents blundered in their previous attempts to unlock the suspect’s phone to the point that a fairly simple procedure became impossible.
Congress Must Act to Resolve Issues in Apple-FBI iPhone Deadlock
That blunder was also revealed in the testimony before the Judiciary committee when Comey admitted that the FBI had asked the administrator for the county-owned iPhone to change the password for the Apple ID, a process that ensured that the phone couldn’t back itself up to Apple’s cloud services. Had the phone been backed up, gaining access to the contents wouldn’t have required a court order.
The good news to come out of all of this, assuming getting Congress involved can be considered good news, is that the Constitutional weakness of depending on the All Writs Act is clearly revealed. The act itself exists for a legitimate purpose, which is to give judges broad latitude in issuing orders to produce evidence or to compel other actions. And the fact that it’s been around since 1789 is really not relevant.
But the issue goes beyond the All Writs Act. As Judge Orenstein points out, Congress has had several opportunities to make it clear that computer makers could be required to produce evidence through cooperation with the government, but chose not to do so.
During this time, such a requirement was put in place for telephone companies, for example, and for other communications services. Congress considered making computer makers subject to such demands, but it didn’t.
So right now, the ball is in Congress’ court and it needs to change the law. This is the Judiciary committee’s opportunity to take action. But first Congress must determine how it will strike a balance between the need for security and the right to privacy. What Congress will have to decide is whether the right to privacy provided in the Constitution outweighs the need for security when it comes to mobile phones.
While the FBI can attempt to stretch the meaning of the All Writs Act to include forcing Apple to write new software to perform acts against its own interests, and while Apple can maintain that it’s acting within the framework of the Constitution and for the good of democracy in refusing to comply with a court order, this is really a question for Congress.
So now the question becomes whether a dysfunctional, virtually deadlocked Congress can manage to get its act together to solve this problem, or must we wait a year until another election passes for another attempt? Considering that the members of the Judiciary Committee were clearly skeptical of the FBI’s position and to some extent of Apple and its motives, the answer appears to be that the Judiciary Committee, at least, is ready to act.
But whether Congress as a whole will soon consider any legislation to changes the rules is another matter. This is an election year, after all, and everything depends on getting reelected.
Maybe if there’s an outcry from constituents then Congress will equate reelection with solving this problem. But that means that someone in the electorate has to care enough to complain. Perhaps that would be easier if both sides in this controversy decided to tell the truth.