The Director of the FBI faced a wall of criticism before the House Judiciary Committee on Tuesday, confronting anger over the bureau’s effort to crack software security features through a court order.
One after another, lawmakers hammered James Comey in what was the first congressional hearing since news broke last month that the FBI sued Apple in an attempt to gain access to an iPhone that belonged to one of the deceased San Bernardino killers, Syed Farook.
The panel was largely taken aback by Comey’s gambit, which hadn’t been telegraphed during any of the Director’s appearances on Capitol Hill over the last year. In March 2015, Comey first lobbied Congress to pass a law that would force technology companies to weaken their software to help law enforcement; specifically, by weakening cryptography. By July 2015, he said he was no longer interested in obtaining a Congressionally-mandated “backdoor” to encrypted information.
After many of those hearings, Comey had received drubbings from lawmakers for even broaching the subject, which has been derided by technologists as a threat to the very idea of securing information online.
While the FBI isn’t seeking to directly undermine iPhone encryption in Farook’s case, Comey has publicly described the encrypted communications offered by the device as a threat to law enforcement.
“What disturbs me is that in the middle of an ongoing debate on this subject, the Federal Bureau of Investigation would ask a federal magistrate to give them the special access to secure products that this committee, this congress, and the administration have so far refused to provide,” the ranking member of the committee, Rep. John Conyers (D-Mich.), said in opening remarks.
The court order secured by the government in the San Bernardino case would require Apple to build new software to help grant law enforcement access to the locked phone. It is specifically being asked to undermine security features that would allow police to hack Farook’s passcode to gain entry.
One feature the feds want turned off is an auto-erase component triggered after ten failed passcode attempts. Comey claimed that with these tools undermined, the FBI could crack Farook’s phone in 26 minutes.
Apple CEO Tim Cook has likened the software sought by police to a “cancer” that could threaten the security of Apple’s entire fleet of devices.
Rep. Jason Chaffetz (R-Utah) echoed these concerns, claiming that Comey’s legal request was unprecedented.
“When historically with all the resources and assets of the federal government, all the expertise, all the billions of dollars, when has it been the function of government to compel or force a private citizen or a company to act as an agency of the government to do what the government couldn’t do?” Chaffetz asked.
Chaffetz has previously chided the Obama administration for its attacks on encryption, noting that cops are living in a “Golden Age of Surveillance.” But on Tuesday, the FBI Director attempted to reframe the issue, claiming his tools are becoming “less and less effective” in the wake of proliferating encryption technology.
“Essentially were’ asking Apple, take the vicious guard dog away and let us pick the lock,” Comey claimed.
Rep. Ted Deutch (R-Fla.) immediately reversed the analogy, however, noting the sensitivity of the information that exists on everyone’s phones today implicates more than just privacy interests. “We would like a pack of vicious guard dogs to protect our information to keep us safe, because there’ s a public safety aspect to that equation as well,” he said.
Committee Chair, Rep. Bob Goodlatte (R-Va.) agreed with the sentiment. He noted that any initiative seeking to undermine software security through the power of the federal government should pass first through his committee.
During the hearing, Comey attempted to pull at the heartstrings of members of Congress, claiming that this is ultimately about finding answers for the victims of the San Bernardino attacks, which includes the bureau doing all it can to access potential evidence on Farook’s phone. In this case, the FBI is using the All Writs Act of 1789 to force Apple’s compliance.
“This case in San Bernardino is not about the FBI. It’s not about Apple. It’s not about congress,” he claimed.
But under questioning, Comey admitted the outcome of the case could have far-reaching consequences. “Any decision by a court about a matter is potentially useful to other courts,” he said, expressing confidence that FBI will ultimately prevail. “That’s what precedent is.”
Law enforcement’s bid for a precedent suffered a setback on Monday, when a federal magistrate judge in New York ruled in the opposite direction, stating that the FBI could not use the All Writs Act to compel Apple “to perform work for the government against its will.”
Proving the FBI wants to break iPhones for more than just counter-terrorism: the request in New York was made by the bureau as part of a drug investigation.
Amid the beatdown Tuesday, Comey did manage to forge alliances with a handful of members on the committee, including Rep. Luis Gutierrez (D-Ill.).
“When I buy a house, I don’t have any expectation of privacy when you get a warrant,” the congressman stated. “I don’t have that expectation in my car.” he added, wondering why the same standard shouldn’t apply to a cell phone.
Rep. Trey Gowdy (R-S.C.) was more full-throated in his defense of Comey, pushing an argument that public safety interests should trump the Fourth Amendment and a few others, too,
“The right to counsel, the right to free speech, the right to a jury trial just isn’t of much use if you’re’ dead,” Gowdy boomed.
