Lawmakers on Tuesday pressed FBI Director James Comey to concede that a court order directing Apple to unlock an iPhone used by one of the San Bernardino shooters could set a legal precedent.
The pointed questions came from both sides of the aisle.
“If the FBI is successful in requiring Apple to unlock its phone, that won’t really be a one-time request, correct?” asked House Judiciary Committee Chairman Bob Goodlatte (R-Va.), who was overseeing a hearing on the topic.
{mosads}“Well the issue of locked phones certainly not,” Comey began before Goodlatte intervened.
“Will it set a precedent for other requests from the Federal Bureau of Investigation and any other law enforcement agency to seek the same assistance in many many other cases?” he asked.
“Sure, potentially,” Comey replied, “because any decision of a court about a matter is potentially useful to other courts, which is what a precedent is.”
But Goodlatte and others continued to press the point. Minutes later, Rep. John Conyers (D-Mich.), the Judiciary Committee’s ranking member, followed up.
“If you succeed in this case, will the FBI return to the courts in future cases to demand that Apple and other private companies assist you in unlocking secure devices?” he asked.
“Potentially, yes,” Comey said.
Congress has increasingly inserted itself into the debate over government access to encrypted devices since Apple rebuffed the FBI court order earlier this month.
While the two duke it out in court over the order, a bipartisan consensus has arisen that Congress must settle the broader debate before the courts do.
Law enforcement officials have warned that investigators are increasingly blind to terrorists’ and criminals’ communications because of encryption. They have pressed Capitol Hill to move a bill that would force companies to comply with court orders seeking encrypted data.
Technologists and privacy advocates have pushed back, arguing that unbreakable encryption is essential to digital security and online privacy. Any form of guaranteed access creates vulnerabilities that hackers or spies could exploit, they say.
But neither side has been able to gain enough traction on Capitol Hill to either move or completely block legislation.
The FBI has faced accusations that it is trying to break this stalemate by going directly to the courts.
“What concerns me,” Conyers told Comey, “is that in the middle of an ongoing congressional debate … 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.”
This perception has irked many tech- and privacy-focused lawmakers, including Conyers.
“Given that you asked us to provide you with that authority since taking your position at the FBI, and given that Congress has explicitly denied you that authority so far, can you appreciate our frustration that this case appears to be little more than an end run around this committee?” Conyers asked.
“I really can’t, Mr. Conyers,” Comey responded, adding that he didn’t recall asking for specific legislation.
“We’re investigating an horrific terrorist attack in San Bernardino,” Comey said. “There’s a phone that’s locked that belonged to one of the killers.”
Comey believes there is “a reasonable argument” for the FBI to ask for help getting into that phone.
“If I didn’t do that, I ought to be fired,” he said.