Washington, D.C.  – The House Judiciary Committee today held a hearing on “The Encryption Tightrope: Balancing Americans’ Security and Privacy.” At the hearing, members of the House Judiciary Committee closely examined the concerns raised by law enforcement and American technology companies in order to help find a solution that allows law enforcement to effectively enforce the law without harming the competitiveness of U.S. encryption providers or the privacy and security protections it delivers for U.S. citizens.

 

Background on Hearing:

  • As encryption has increasingly become much more widespread among consumers, there is an ongoing national debate about the positive and negative implications it poses for consumers’ security and privacy.
  • Encryption is used to strengthen consumers’ privacy and security but it also has presented new challenges for law enforcement seeking to obtain information during the course of its criminal investigations.
  • For example, following the December 2015 terrorist attack in San Bernardino, California, investigators recovered a cell phone belonging to one of the terrorists responsible for the attack. After the FBI was unable to unlock the phone and recover its contents, a federal judge ordered Apple to provide “reasonable technical assistance to assist law enforcement agents in obtaining access to the data” on the device, citing the All Writs Act passed in 1789. Apple is challenging the court order.

 

Hearing Takeaways:

  • FBI Director James Comey told members of the House Judiciary Committee that there is no way for the Bureau to unlock the San Bernardino terrorist’s iPhone without Apple’s support and code. He also testified that the decision in Apple v. FBI could set a precedent for future cases and that Congress will ultimately have to decide on the broader question this issue poses for Americans’ privacy and security.
  • Mr. Cyrus Vance Jr., the District Attorney for New York County, told members of the Committee that state and local law enforcement agencies handle 95% of criminal cases each year around the country and that their lack of access to encrypted phones has had an impact on their ability to conduct criminal investigations. He stated that criminals are well-aware of “warrant-proof” encryption.
  • Bruce Sewell, the Senior Vice President and General Counsel for Apple, Inc, told members of the Committee that Apple is in an arms race with criminals and hackers and the company wants to assure its customers that their information cannot be stolen. Apple’s goal in strengthening encryption is to protect the security and privacy of millions of iPhone users. Sewell expressed concern that the FBI’s request would create unintended consequences and compromise consumers’ personal information stored on Apple devices. He also told members that Congress – not the courts – must decide on this issue.

 

Key Videos: 

House Judiciary Committee Chairman Bob Goodlatte’s (R-Va.) exchange with FBI Director Comey:

Goodlatte: “If the FBI is successful in requiring Apple to unlock this phone, that won’t really be a one-time request, correct? It will set a precedent for other requests from the FBI and any other law enforcement agency to seek the same assistance in many other cases.”

Comey: “Sure, potentially, because any decision by a court about a matter is potentially useful to other courts.”

 

Crime Subcommittee Chairman Jim Sensenbrenner’s (R-Wis.) exchange with Apple’s General Counsel:

Sensenbrenner: “Why is Congress and not the courts the best venue to decide this issue?”

Sewell: “Ultimately Congress must decide this issue … I think we find ourselves in an odd situation in the court in California because the FBI chose to pursue in an ex parte fashion a warrant that would compel Apple to do something. We view that not as an extension of the debate, not as a way to resolve this issue; we view that as a way to cut off debate.”

Sensenbrenner: “What is your proposed legislative response?”

Sewell: “I do not have a bill for you to consider … What we are asking for is a debate. I don’t have a proposal or solution … This is a security versus security issue, and that balance should be struck by the Congress.”

 

Congressman Trey Gowdy (R-S.C.)“Are we going to create evidence-free zones? … We ask the Bureau and others to do a lot of things – investigate crime after it has taken place, anticipate crime, stop it before it happens – and all you are asking is to be able to guess the password and not have the phone self-destruct. And you can go into people’s bodies and remove bullets but you can’t go into a dead person’s iPhone, I find that baffling.”