Today Apple sent its general counsel and senior vice president Bruce Sewell to Washington, to speak before the House Judiciary Committee about the ongoing battle the FBI is waging against the FBI and the U.S. Department of Justice (DOJ) over the encryption of San Bernardino shooter Syed Rizwan Farook’s iPhone.
The event had all the markings of a forced meeting between Silicon Valley and federal officials. There were some supporters, like Prof. Susan Landau of the Worcester Polytechnic Institute, who was testifying alongside Sewell, and Rep. Darrell Issa (R-Calif.). There were some opponents, like New York County District Attorney Cyrus Vance Jr., also testifying, and Rep. Jim Sensenbrenner (R-Wisc.). Some of the U.S. representatives simply didn’t seem to understand every dimension of the case.
Sewell, not surprisingly, stuck to most of Apple’s talking points, like the importance of public safety for end users of its devices, and the notion that building the software the FBI wants would amount to the creation of a backdoor into iPhones. However, at the end of the day, a new idea did become clear.
When it comes to legislation that would be passed, unlike the FBI, Apple doesn't seem to know what exactly it wants to propose to Congress — even though the company has expressed previously that it would prefer for the conversation about this controversy to be held in public with Congress rather than behind closed doors in court.
“Can you submit legislation … that you could wholeheartedly support and lobby for that resolves this conundrum between [Apple] and the bureau?” Rep. Trey Gowdy (R-SC) asked Sewell.
“I firmly believe we could draft legislation,” Sewell said. “I don’t have it for you.”
Gowdy suggested that an “army of government relations” people would have issues with anything that Congress, left to itself, would come up with, and so he wanted to know if Apple could possible come forth with a starter of sorts that would be less likely to end up stalling.
“If, after we've a debate to determine what the right balance is, then that’s a natural outcome,” Sewell said.
Gowdy asked when that would happen.
“I can’t anticipate that, Congressman,” Sewell responded.
That Apple didn’t come to Washington with specific policy in hand looked to irk Sensenbrenner as well.
“All you have been doing is saying, ‘No, no, no, no,'” he said.
Sensenbrenner was right. Legislation is what matters to Congress. It’s the currency of that branch of government. Apple has been engaging with the DOJ lawyers on the judicial front, and Apple chief executive Tim Cook has previously met with President Obama and plans to meet with him again. When it comes to policy, though, Apple has some work to do.
‘My blood boils’
Sewell inevitably was asked what he thought of the notion of what he thought about the argument that against cooperating with the FBI’s request and its support of strong encryption amounted to a “marketing strategy.”
“Every time I hear this, my blood boils,” he told committee chairman Rep. Bob Goodlatte (R-Va.). “This is not a marketing issue.” Apple doesn’t spend its money on ads that talk up its products’ security or encryption, Sewell said.
If anything, Sewell said, Apple’s defense against the FBI’s demands is “the right thing to do.”
Where in the world is NSA?
Some of Apple’s best defenses came from the person to Sewell’s right on the panel: Prof. Landau. A previous Google and Sun employee, Landau suggested through her testimony how the problem at the core of the reported lack of data sharing in the 2000s between the FBI and the National Security Agency (NSA) — cross-agency collaboration, specifically — seems to be still alive and well.
When she had given a briefing to the Federal Communications Commission (FCC) in the past, Landau said she learned that NSA had certain skills however, “won’t share with the FBI, except in exceptional circumstances.”
Ultimately, Landau said, the U.S. government was using “very much a 20th-century way of looking at a 21st-century problem.”
Brittney Mills
However, even though Apple and Sewell had the assistance of Landau to challenge the FBI’s insistence on the creation of “FBiOS” to unlock Farook’s phone, the hearing, in Washington as it was, was not removed from the political tradition of citing cases of individual victims.
Rep. Cedric Richmond (D-La.) brought up Brittney Mills, a woman in Baton Rouge, La., who was shot dead the previous year. Local law enforcement officials have suggested that Mills’ locked iPhone 5 could have clues to help them figure out who killed her. The district attorney in the case were on site for today’s hearing, along with members of Mills family, Richmond said. In that context, Richmond asked if Sewell if he would “have a problem” with brute force attacks on a phone in order to get at certain information. Sewell said that would amount to a security vulnerability, so yes, he would.
Richmond went on to ask if Apple currently has the technology to unlock Mills’ iPhone, or knew anyone who does.
“Short of creating something new, no,” Sewell said.
Written testimony from Sewell, Landau, and Vance, and FBI director James Comey is here.
For a full overview of the Apple-FBI case, check out our timeline.