Tag Archives: House Judiciary Committee

FBI Director Admits Apple’s ‘Backdoor’ Could Be Used for Other iPhones

While the FBI has formerly claimed that its order for Apple to create a “backdoor” into the iPhone was only to extract data from one specific phone used by a suspect in the San Bernardino shooting, it appears that the agency is retreating from that argument as FBI Director James Comey admitted it could set a precedent for future cases.

During a House Judiciary Committee hearing Tuesday, Rep. Ted Poe (R-Tx.) questioned Comey on what would stop the FBI from using the “backdoor” software created by Apple on other phones if it wins the case.

“Apple develops the software and gives it to [you for] the phone, but that’s not the only phone in question, is that correct?” Poe said. “There are other phones that the FBI has in lawful possession that you can’t get into?”

Comey replied, “Sure, law enforcement increasingly encounters phones [in] investigations all over the place that can’t be unlocked.”

Poe asked how many other phones are in lawful possession of the FBI that the agency cannot extract data from with the current software. Comey said there were several, and he did not know the exact number.

“What would prevent the FBI from then taking that software and going at all of those other phones you have, and future phones you seize?” Poe asked.

“This seems like a small difference, but I think it’s actually kind of a big difference,” Comey replied. As he continued, he said that the software would only be used on iPhones in the same predicament as the one used the San Bernardino shooting suspect.

[pull_quote_center]The direction from the judge is not to have have Apple get us into the phone, it’s to have Apple turn off—by developing software that will tell the phone to turn off—the auto erase and the delay features, so that we can try and guess the password. So in theory, if you get another 5c running iOS9, which is what makes this relief possible, I mean it when I say it’s obsolete, because I understand that [with the iPhone 6] there is no door for us to even try to pick the lock on, so it wouldn’t work, but if there were phones in the same circumstances, then sure, you could ask for the same relief from a court to try and make effective the search warrant.[/pull_quote_center]

[RELATED: Apple Rejects Government Order to Create ‘Backdoor’ for iPhone]

Comey was later questioned by Rep. Ted Deutch (D-Fl.), who asked about whether the creation of a “backdoor” into the iPhone would make it susceptible to terrorists and child predators.

“When this tool is created, the fear is that it might be used by others and there are many who will try to get their hands on it, and will then put at risk our information on our devices,” Deutch said.

Comey noted, “There would be substantial risks around creating this software.”

[RELATED: Reality Check: Why McAfee Says FBI Really Wants To End Encryption, Not Hack Just One iPhone]

Deutch replied, “If that’s the case that it’s usable in more than one phone and it applies beyond there, then the public safety concerns that a lot of us have [about] if the public got access to our phones and our children’s phones, in that case, those are really valid, aren’t they?”

Comey said it is a valid concern, but claimed that it’s a question “we’re going to have litigation about is how reasonable is that concern,” adding “slippery slope arguments are always attractive.”

Comey acknowledged that the software may not be used for only the iPhone in the San Bernardino case, when he was questioned by Rep. Bob Goodlatte (R-Va.)

“It won’t be a one-time request. It’ll set precedent for other requests from the FBI and any other law enforcement,” Goodlatte said.

“Sure, potentially,” Comey said.

[RELATED: Apple Policy Says They Won’t Unlock Devices for Government Requests]

Apple General Counsel Bruce Sewell was later added to the hearing, and Comey said that in regards to the risks that would come with the creation of the software, “It’s not [Apple’s] job to watch out for public safety. That’s our job.”

Sewell told the committee that the company is not trying to look out for public safety as much as it is protecting its First Amendment rights to free speech and its Thirteenth Amendment rights to deny forced labor as a private citizen.

Sewell said the FBI’s argument that Apple is using the San Bernardino case as a marketing ploy “makes my blood boil.”

[pull_quote_center]This is not a marketing issue, that’s a way of demeaning our argument. We don’t take out billboards for our security. We don’t take out ads for our encryption. We’re doing this because we think it’s the right thing to do. To say that it’s a marketing ploy to to say that it’s about PR really diminishes a very serious conversation that should be about security of the American people.[/pull_quote_center]

[RELATED: FBI Ordered Password Reset on San Bernardino Shooting Suspect’s iPhone]

As previously reported, the FBI admitted in February that it reset the password on the iPhone used by San Bernardino shooting suspect Syed Farook within 24 hours of the shooting.

Apple officials criticized the move, and reportedly claimed that changing the password revoked the company’s access into an auto-backup of the phone. Comey admitted that this was a “mistake,” and claimed that even if the FBI had acted differently, it still wouldn’t have been able to access everything on the phone without Apple’s help.

[RELATED: NY Judge: DoJ Cannot Force Apple to Extract Data from Locked iPhone in Drug Case]

The FBI is currently attempting to use the All Writs Act of 1789 to justify forcing Apple to extract data from iPhones in 12 different cases. In some cases, that involves using existing capabilities to pull contacts and calling information, but in other cases it would require Apple to create new software to break the iPhone’s encryption.

New York Magistrate Judge James Orenstein ruled Monday that in one of the cases, a criminal drug case in Brooklyn, the All Writs Act does not justify “imposing on Apple the obligation to assist the government’s investigation against its will.” While this ruling is not binding in any other court, it does mark the first time a federal judge has ruled in Apple’s favor.

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Why is the House Judiciary Committee Meeting in Private to Discuss the FISA Act?

On January 27, 26 civil liberties, human rights, and transparency organizations sent a letter to the House Judiciary Committee demanding that an upcoming “members only” meeting on surveillance be made public.

The hearing is scheduled for February 2, and is currently classified and for members only.  The committee will be discussing Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act, the law that the NSA uses for its PRISM surveillance program and to tap into the so-called backbone of the Internet. Both programs were revealed to the public by whistleblower Edward Snowden.

Judiciary Committee member and “original author of the USA Patriot Act” Jim Sensenbrenner, (R-Wisc.) said in a statement to The Intercept that “Closed briefings are necessary for members of Congress to ask questions about classified information.”

“However, I would support a subsequent open hearing on Section 702 of the Foreign Intelligence Surveillance Act because transparency and public discussion are critical to the reform and reauthorization of Section 702,” Sensenbrenner also said in his statement.

The letter calls on House Judiciary Committee to open the hearing on Section 702 up to the public. The organizations write:

“We believe that robust congressional oversight of the implementation of this statute, which is used to acquire the communications of Americans and people around the world alike without a warrant, is critical. We were surprised when we recently learned that you may soon hold a hearing in a classified format, outside of public view.”

The groups say that holding a closed hearing “continues the excessive secrecy” that has become the norm during the Obama administration and “contributed to the surveillance abuses we have seen in recent years.”

The letter also notes that the Intelligence, Armed Services, and the Judiciary Committees have previously held public sessions on matters of national security. The Senate Judiciary Committee has itself held several public hearings on NSA surveillance programs following the release of documents by Snowden.

The organizations also note that the way in which Section 702 is applied “also affects journalists who interact with confidential sources to report on issues in the public interest, and criminal defendants whose prosecutions may involve the use of evidence derived from intelligence surveillance.”

The full list of the participating organizations appears below.

Access Now

American-Arab Anti-Discrimination Committee (ADC)

American Civil Liberties Union

American Library Association

Amnesty International USA

Brennan Center for Justice

Californians Aware

Center for Democracy &Technology

Constitutional Alliance

The Constitution Project

Cyber Privacy Project

Electronic Frontier Foundation

Electronic Privacy Information Center (EPIC)

Essential Information

Free Press Action Fund

Government Accountability Project

Human Rights Watch

National Coalition Against Censorship

National Security Archive

New America’s Open Technology Institute

Niskanen Center

OpenTheGovernment.org

Project On Government Oversight

Reporters Committee for Freedom of the Press

Restore The Fourth

R Street Institute