FBI director: Victory in the fight with Apple could set a precedent, lead to more requests
By Mark Berman and Ellen Nakashima
March 1, 2016
Lawmakers on Tuesday pressed FBI Director James B. Comey about the bureau's demands that Apple help it unlock an iPhone used by one of the San Bernardino attackers.
The Justice Department and FBI have tried to cast the issue as narrowly focused on one iPhone, but Comey acknowledged that if the government succeeds in this case it could set a precedent for others.
He also said he believed that soon, all conversations and personal documents would be hidden behind encryption "that nobody else can get into." This, he said, would challenge law enforcement efforts that depend on officers obtaining warrants to access personal conversations or materials.
"Our job is simply to tell people there is a problem," Comey said. "Everybody should care about it, everybody should want to understand. If there are warrant-proof spaces in American life, what does that mean and what are the costs of that?"
The hearing before the House Judiciary Committee came a day after a federal judge in New York ruled in favor of Apple in a separate case that also focuses on whether the government can force the tech giant to help it access locked devices. That case, however, involves a different type of operating system than the one in the San Bernardino phone, and a much less burdensome request for assistance.
But both cases turn on a 220-year-old law, the All Writs Act, and whether it provides authority for a court to force the firm to provide the technical assistance the government seeks.
Comey acknowledged that if the federal government prevails in the California case, agents could seek assistance in unlocking other devices in the future. He said that other judges and lawyers could look to the case for guidance. But he also said he thought there were "limits" to how useful the precedent would be given what he described as its narrow application to an older model phone.
Bruce Sewell, Apple's general counsel, asserted that Apple's defiance of the government's court order in the San Bernardino case was not motivated by financial concerns.
"This is not a marketing issue," he said, rejecting suggestions by the Justice Department, which he said "diminishes" the serious issues being debated.
"We're doing this because we think that protecting the security and the privacy of hundreds of millions of iPhone users is the right thing to do," he said.
Sewell said Apple's move toward strong encryption in recent years arose out of a concern about customer security. "Some of you might have an iPhone in your pocket right now, and if you think about it, there's probably more information stored on that iPhone than a thief could steal by breaking into your house," Sewell said.
He said the company was "in an arms race with criminals, cyberterrorists [and] hackers.''
The debate between Apple and the government has played out in recent weeks across court filings, public statements, open letters and television interviews, with both sides seeking to stake out the higher ground in a conflict centered on one iPhone but with far-reaching implications in an era where personal information is increasingly stored on digital devices and platforms.
Comey told lawmakers that the iPhone recovered after the San Bernardino attack -- one of three phones that was found, though the other two were smashed -- could provide information about other terrorists. The FBI, he said, was seeking to answer lingering questions: "Is there somebody else? And are there clues to what else might have gone on here?" Comey said, adding that answering those questions "is our job."
He said the National Security Agency, the world's most sophisticated electronic spy agency, had been consulted for help with the phone. Asked who the FBI had turned to, he said: "All elements of the U.S. government have focused on the problem."
Later in the hearing, when asked specifically if the FBI had talked to other government agencies, including the NSA, he replied: "Yes is the answer. We've talked to anybody who will talk to us about it."
The NSA did not immediately respond to a request for comment Tuesday.
Comey also admitted that the FBI made a "mistake" when it asked San Bernardino County technicians to reset the iCloud password for the phone, which forestalled the possibility of trying to back it up again after that occurred. But he said even if that had not occurred, the FBI and Apple might have wound up in the same situation, since some data on the phone may not have been backed up.
Sewell, though, disputed that notion, saying that if the password was not changed, the court fight might have been averted.
"The very information that the FBI is seeking would have been available and we could have pulled it down from the cloud," he said. "By changing the [iCloud] password . . . it was no longer possible."
The government is seeking to unlock an iPhone 5c used by Syed Rizwan Farook, one of two shooters in the attack that killed 14 people. Last month, a magistrate judge in California issued an order directing Apple to write software that would disable a feature that deletes the data on the phone after 10 incorrect tries at entering a password. The bureau wants to try to crack the password without risking data deletion.