WASHINGTON — The U.S. government calls it a “vicious guard dog” that hurts national security. Apple says it’s critical to protecting consumer privacy against increasingly sophisticated hackers.
As the debate over built-in iPhone encryption has deadlocked in the courts, law enforcement and the world’s second-largest cellphone maker agreed on one point Tuesday: It’s up to Congress to set boundaries in a long-simmering fight over who can legally access your digital life.
“We’re asking Apple to take the vicious guard dog away and let us pick the lock,” FBI Director James Comey told a House judiciary panel Tuesday, referring to a locked iPhone tied to the deadly December shooting in San Bernardino, Calif.
“The FBI is asking Apple to weaken the security of our products,” Apple general counsel Bruce Sewell countered later.
The hearing Tuesday shifted attention from the courts — where judges in the last month have issued significant but conflicting opinions — to Congress, where both sides say the broader policy debate belongs.
It also provided an extraordinary public forum for the Obama administration and Apple Inc. to stake out competing positions that could have sweeping ramifications. Apple’s recent opposition to bypassing security features for the government has pushed that dispute from tech circles into the mainstream.
The strong positions articulated Tuesday make clear the deep divide between Silicon Valley and the government, even as the Obama administration advocates open dialogue and resolution.
“Is it the right thing to make our society overall less safe in order to solve crime?” Sewell asked. “That’s the issue that we’re wrestling with.”
On Monday, a federal judge in Brooklyn said the Obama administration couldn’t force Apple to help it gain access to the phone in a drug case. U.S. Magistrate Judge James Orenstein said Justice Department attorneys were relying on the centuries-old All Writs Act to “to produce impermissibly absurd results.”
But two weeks ago, a different magistrate judge in California, Sheri Pym, directed the company to help the FBI hack into a locked iPhone used by one of the shooters in the December attack in San Bernardino, which killed 14 people.
With those two conflicting rulings in mind, Congress needs to get involved to address the broader collision between private safety and public safety, Comey said.
The Obama administration last year decided against a legislative fix. Now, though, “Congress must decide this issue,” said Sewell.
The San Bernardino case involves an iPhone 5C used by Syed Farook. He and his wife, Tashfeen Malik, later died in a gun battle with police. The FBI wants specialized software that would bypass security protocols on the encrypted phone so investigators can access its data.
