Apple and the FBI Trade Blows at House Hearing on Encryption

Bruce Sewell, general counsel for Apple Inc., is sworn in before testifying to the House Judiciary hearing on "The Encryption Tightrope: Balancing Americans' Security and Privacy" on Capitol Hill in Washington on March 1. REUTERS/Joshua Roberts

Updated | The director of the FBI and the lead attorney for Apple took center stage in a House Judiciary Committee hearing on Tuesday to discuss the ongoing saga of Apple refusing to cooperate in opening the encrypted iPhone of the San Bernardino shooter Syed Rizwan Farook.

In a hearing that went on for five hours, FBI Director James Comey and Apple attorney Bruce Sewell were showered with questions on the legality of FBI's demands, the technical viability of Apple opening the iPhone, the international implications and what sort of actions Congress can take in the encryption debate.

The hearing alternated between being soporific and extremely heated, with select Congressmen peppering either side of the debate with questions. Republican Trey Gowdy of South Carolina took shots at Sewell and demanded he come up with a legislative proposal on the spot that Apple would be content with. His colleague Jim Sensenbrenner also badgered Sewell. "I don't think you will like what will come out of Congress. All you've been saying is no, no, no, no," Sensenbrenner says.

Republican Darrell Issa of California dug into Comey for not knowing whether the FBI asked Apple for the original source code of the iOS to develop mirror copies within its computers to unlock Farook's iPhone. "This befuddles me, that you haven't looked at the source code, and you don't really understand the disk drive," Issa says to Comey. "How can you come to this committee and the federal courts if you haven't asked these other questions?"

Comey also conceded that the FBI made a "mistake" when the password to Farook's Apple ID was changed in the 24 hours after the FBI retrieved the iPhone. The change blocked the auto-backup feature in Farook's iPhone, making it impossible to retrieve the data from the unencrypted iCloud system. But Comey insisted that the larger debate would have ended up in Capitol Hill nonetheless.

Comey clarified that what the FBI was looking for was not a back-door access to iPhones using an analogy. "We are asking Apple to take the vicious guard dog away from the door and let us pick the door," Comey says. The "guard dog" refers to Apple's security features which includes auto-erase the data within the iPhone after ten failed attempts at guessing the passcode.

Another twist to the Congressional hearing was Monday's decision from a New York judge which upheld Apple's arguments. Judge James Orenstein challenged the legality of the FBI's use of the All Writs Act, a law from 1789 which allows courts to issue commands to non-government entities to aid the government. "The government posits a reading of the latter phrase so expansive-and in particular, in such tension with the doctrine of separation of powers-as to cast doubt on the AWA's constitutionality if adopted," writes Orenstein.

Comey evaded the question on Orenstein's last-minute curveball decision, saying he has not read the decision to properly comment.

Manhattan District Attorney Cyrus Vance Jr. sat next to Sewell and Worcester Polytechnic Institute professor Susan Landau to speak on the FBI's side by claiming that law enforcement officials also need Apple's cooperation in unlocking encrypted iPhones for its police investigations. "Time is not a luxury for law enforcement," Vance says.

Sewell shot back at the claim made by the Justice Department before the hearing that all this was a marketing ploy to boost Apple's brand. "That makes my blood boil," Sewell says. "This is not a marketing issue. This is a way of demeaning the other side."

Sewell also doubled down on the claim that Apple does not currently have the technology to unlock the iPhone. He also said that Apple will "follow the law" if Congress or the Supreme Court makes a decision that favors FBI's position. But he warned that if Apple concedes, other countries like China and Russia will start asking for the encryption-compromising technology in "a hot minute."

Sitting between Sewell and Vance, Landau, as a former Google privacy analyst and a well-respected pundit on cybersecurity and law, focused mainly on the broad picture of the issue. "This is not about a new right of privacy; it's about a new form of security," Landau says. "[This] is very much a 20th century way of looking at a 21st century problem."

Correction: An earlier version of this article said that Darrell Issa is a Democrat. He is a Republican.