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Apple lawyer says helping FBI break into iPhone will lead to more crime Apple and FBI look to Congress to settle battle over iPhone encryption
(about 4 hours later)
As Apple prepares to move its encryption battle with the Federal Bureau of Investigation from the courts to the halls of Congress, its chief lawyer is arguing that unlocking the iPhone used by a San Bernardino terrorist will ultimately create more crime than it prevents. The war of words between Apple and US law enforcement escalated again on Monday as their fight over personal versus national security prepared to move beyond the courthouse and into the halls of Congress.
In testimony released ahead of a hotly anticipated congressional hearing, Apple’s chief attorney argued that helping unlock an iPhone used by a terrorist in San Bernardino will ultimately create more crime. New York’s chief prosecutor said the company’s devices were beyond the law and urged Congress to pass new legislation keeping encryption keys to user data in the hands of the tech giants.
Related: FBI director admits Apple encryption case could set legal precedentRelated: FBI director admits Apple encryption case could set legal precedent
Bruce Sewell, Apple’s general counsel, will warn legislators on the House judiciary committee that the 16 February court order on Apple to help the FBI break into the iPhone will create a digital vulnerability that jeopardises another US government imperative: cybersecurity. Both sides have called on Congress to settle the dispute, although lawmakers and the Obama administration have thus far balked at either setting encryption standards by legislation or permanently ceding the territory to mathematicians. Technologists and privacy advocates spent much of 2015 in a highly visible public push to prevent Congress from mandating so-called backdoors into company-held data.
Bruce Sewell, Apple’s general counsel, will warn legislators on the House judiciary committee that the 16 February court order on Apple to help the FBI break into the iPhone will, if enacted, create a digital vulnerability that jeopardises another US government imperative: cybersecurity.
“Hackers and cyber criminals could use this to wreak havoc on our privacy and personal safety,” Sewell will tell the House panel at a hotly anticipated hearing on Tuesday, according to prepared remarks the company has released.“Hackers and cyber criminals could use this to wreak havoc on our privacy and personal safety,” Sewell will tell the House panel at a hotly anticipated hearing on Tuesday, according to prepared remarks the company has released.
“Some of you might have an iPhone in your pocket right now, and if you think about it, there’s probably more information stored on that iPhone than a thief could steal by breaking into your house,” Sewell will testify.“Some of you might have an iPhone in your pocket right now, and if you think about it, there’s probably more information stored on that iPhone than a thief could steal by breaking into your house,” Sewell will testify.
Sewell’s testimony will follow that of James Comey, the director of the FBI who has since 2014 publicly warned that thorough mobile encryption will jeopardise law enforcement. But Cyrus Vance, the district attorney for Manhattan who has said he has 175 iPhones waiting on the outcome of the case, said in his own opening testimony that the fourth amendment to the US constitution, which protects against “unreasonable” searches, “is our best protection from abuse” and not powerful encryption.
The technology company is at loggerheads with US law enforcement and some members of Congress over its refusal to cooperate further in weakening the password protection on San Bernardino killer Syed Farook’s iPhone 5c.
Sewell’s testimony calls magistrate judge Sheri Pym’s order to weaken the password Farook’s iPhone “an extraordinary circumstance”.
Related: Crunch time for Apple as it prepares for face-off with FBIRelated: Crunch time for Apple as it prepares for face-off with FBI
Vance will call for Apple to turn back the clock and make sure that law enforcement can crack any iPhone as long as they are armed with the proper warrant. Apple made its iPhones virtually uncrackable, even by the company itself, with the release of its iOS 8 operating system on 14 September 2014. “We want smartphone makers to offer the same strong encryption that Apple employed before iOS 8,” Vance wrote.
Vance’s prepared testimony, posted to the committee’s website on Monday, urges Congress to pass a law requiring companies like Apple to retain user keys for decrypting customer data. A November proposal from Vance’s office stated that Congress require any phone manufactured or sold in the US “must be able to be unlocked, or its data accessed, by the operating system designer” pursuant to a court order.
Vance will argue that the lack of such legislation has “enabled Apple and other technology companies to upset the balance between privacy and public safety established by centuries of jurisprudence”.
“Mr Cook and his colleagues at Apple have effectively decided that they know better than our elected representatives and professionals in law enforcement how best to keep Americans safe,” he will say.
Sewell and Vance will testify after James Comey, the director of the FBI, who has since 2014 publicly warned that thorough mobile encryption will jeopardise law enforcement.
The technology company is at loggerheads with US law enforcement and some members of Congress over its refusal to cooperate further in weakening the password protection on San Bernardino killer Syed Farook’s iPhone 5C.
Sewell’s testimony calls magistrate judge Sheri Pym’s order to weaken the password Farook’s iPhone “an extraordinary circumstance”.
Apple has been ordered to write a new software tool that would make breaking Farook’s iPhone password a much simpler process for the FBI and would remove the possibility that attempts could destroy the information on the phone. Sewell wrote that the operating system the court order asks for, nicknamed FBiOS by technologists, “does not exist – because it would be too dangerous”.Apple has been ordered to write a new software tool that would make breaking Farook’s iPhone password a much simpler process for the FBI and would remove the possibility that attempts could destroy the information on the phone. Sewell wrote that the operating system the court order asks for, nicknamed FBiOS by technologists, “does not exist – because it would be too dangerous”.
Reflecting a near-daily messaging war with the FBI that erupted with the initial order, Sewell will testify that encryption ultimately presents a resolution to the twin challenges of cybersecurity and privacy: “Protecting our data with encryption and other methods preserves our privacy and it keeps people safe.” Reflecting a near daily messaging war with the FBI that erupted with the initial order, Sewell will testify that encryption ultimately presents a resolution to the twin challenges of cybersecurity and privacy: “Protecting our data with encryption and other methods preserves our privacy and it keeps people safe.”
Sewell will say the company had cooperated as fully as possible with the FBI after the murders, in which Farook and his wife Tashfeen Malik killed 14 and wounded 22 before dying in a shootout with police.Sewell will say the company had cooperated as fully as possible with the FBI after the murders, in which Farook and his wife Tashfeen Malik killed 14 and wounded 22 before dying in a shootout with police.
“We have a team of dedicated professionals that are on call 24 hours a day, seven days a week, 365 days a year to assist law enforcement,” Sewell will testify. “When the FBI came to us in the immediate aftermath of the San Bernardino attacks, we gave all the information we had related to their investigation. And we went beyond that by making Apple engineers available to advise them on a number of additional investigative options.”“We have a team of dedicated professionals that are on call 24 hours a day, seven days a week, 365 days a year to assist law enforcement,” Sewell will testify. “When the FBI came to us in the immediate aftermath of the San Bernardino attacks, we gave all the information we had related to their investigation. And we went beyond that by making Apple engineers available to advise them on a number of additional investigative options.”
Representative Darrell Issa, a member of the judiciary committee, said he opposed the order in an editorial published on Saturday in Wired. “[T]he FBI cannot mandate that Apple create a backdoor to override the iPhone’s encryption features without creating a dangerous precedent that could cast a long shadow over the future of how we use our phones, laptops and the internet for years to come.” Tensions have risen in the relationship between Apple and the White House over the order sought by the Department of Justice.
The tech community has overwhelming sided with Apple in the dispute: an amicus – friend of the court – briefing filed jointly by rivals from Microsoft to Facebook is expected on Thursday. White House spokesman Josh Earnest said the case was a narrow one at a press conference two weeks ago. “[The Department of Justice] are not asking Apple to redesign its product or to create a new backdoor to one of their products, they are simply asking for something that would have an impact on this one device,” Earnest told reporters.
Sewell also invoked the president in his statement: “The review group on intelligence and communications technology, convened by President Obama, urged the US government to fully support and not in any way subvert, undermine, weaken, or make vulnerable generally available commercial software.” Vance took a similar line in his own testimony, saying that hacking individual phones was far different from large-scale cybercrimes such as hacking into the Office of Personnel Management. “There has been much discussion and concern about large-scale, institutional data breaches involving Home Depot, Target and other large companies,” he will testify on Tuesday. “These breaches are deeply disturbing, of course, but they have nothing to do with the level of encryption on iPhones.”
Tensions have risen in the relationship between Apple and the White House over the order sought by the Department of Justice. “On the one hand, they don’t want to be seen as opposing the FBI in a major terrorism case,” former White House national security staffer Tim Edgar told the Hill last week. “But on the other hand, they don’t want to go out and give more ammunition to the idea that they’re selling out privacy.”
Ashton Carter, the US defense chief, will this week embark on a feathers-smoothing visit to Silicon Valley, where he told reporters on Monday his focus will be “to continue to reinforce our links to the innovative hi-tech sector in the United States”.
The White House spokesman, Josh Earnest, said the case was a narrow one at a press conference two weeks ago. “[The Department of Justice] are not asking Apple to redesign its product or to create a new backdoor to one of their products, they are simply asking for something that would have an impact on this one device,” Earnest told reporters.
Apple’s privacy chief wrote in a court filing last week that such a conception fundamentally misunderstood the ways in which the court-ordered software would work.
Even if physically destroyed, said Erik Neuenschwander, the work done to create the digital exploit creates a knowledge base to undermine Apple encryption, but a likely requirement to store the exploit for future legal compliance will create a target for nation-states, hackers and criminals who seek to hoover up iPhone data.
Further, Apple operating system expert Jonathan Zdziarski pointed out last week that the company would also need to test the software on a number of devices to ensure that it worked in the manner mandated by the FBI.
Farook and Malik destroyed their two personal phones and removed the hard drive from a laptop computer before they were killed; Farook’s work phone (owned by the San Bernardino health department) was not destroyed.