A leading House Democrat expressed serious concern on Tuesday that the FBI is exploiting the ISIS-inspired massacre of 14 people in San Bernardino to sidestep Congress on the encryption debate.
Rep. John Conyers, D-Mich., said it was troubling “that in the middle of an ongoing congressional debate on this subject, the FBI 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.” He spoke at a hearing of the House Judiciary Committee, of which he is the ranking Democratic member.
“Why has the government taken this step and forced this issue?” he asked.
It was a rhetorical question.
“I suspect that part of the answer lies in an email obtained by the Washington Post and reported to the public last September,” Conyers said.
“In it, a senior lawyer in the intelligence community writes that ‘although the legislative environment towards encryption is very hostile today … it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.’”
Conyers continued: “I am deeply concerned by this cynical mindset. And I would be deeply disappointed if it turns out that the government is found to be exploiting a national tragedy to pursue a change in the law.”
The congressman was referring to a leaked letter authored by the intelligence community’s top lawyer, Robert S. Litt. In the letter, Litt advised “keeping our options open for such a situation.”
A federal magistrate judge in California last month ordered Apple to help the FBI access San Bernardino killer Syed Rizwan Farook’s iPhone by developing software to turn off built-in security features — essentially bypassing the phone’s encryption.
Most technologists argue it’s a type of “backdoor” into the device — something various congressional committees have been debating for months.
Law enforcement agencies say they need a way to access all digital communications to conduct investigations, while technologists and privacy advocates say any vulnerability in a device, whether built into the encryption or around it, gives hackers and criminals a foothold to steal private information.
But now, Conyers argues, that debate is being yanked from Congress’s hands. If the FBI succeeds in its court case, it could ask other companies to hack their products too, no matter what type of encryption is involved.
If you can get past the door, why do you need to ask Congress for a key?
FBI Director James Comey insisted that the FBI is not trying to bypass Congress. “I think that the courts are competent to resolve the narrow question about the scope of the All Writs Act,” he said during the hearing, referring to a colonial-era law that allows the government to ask a third party to assist it in carrying out a legal request.
And although Comey has repeatedly insisted that the San Bernardino case is a narrow one, he acknowledged at the hearing that “any decision of a court about a matter is potentially useful for other courts, that’s what precedent is.”
“There are issues about backdoors,” Comey said. “There’s already a door.” The FBI, he said, is asking Apple to “take the vicious guard dog away and let us try and pick the lock.”