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Apple and the FBI presented their arguments on unlocking the San Bernardino attacker’s iPhone to lawmakers today in a wide-ranging, five hour hearing, which touched not only on the case at hand, but also on encryption in general and how technology is disrupting long-held assumptions that are a foundation of U.S. law.

Bruce Sewell
Bruce Sewell

Both FBI director James Comey and Apple’s top lawyer Bruce Sewell spoke in House Judiciary Committee hearing entitled The Encryption Tightrope: Balancing Americans’ Security and Privacy. The hearing also included appearances from Susan Landau, a professor of cybersecurity policy at Worcester Polytechnic Institute, and Cyrus Vance representing the National District Attorney’s Association.

Comey spoke first, and his opening testimony was followed by a surprisingly technical round of questioning from committee members. The members pushed Comey on the rise of encryption and his agency’s supposed inability to construct a backdoor themselves, and also pushed back against the FBI’s tactics to sidestep the ongoing Congressional debate by asking a court to force Apple to aid in unlocking the phone.

The FBI director attempted to reiterate the idea that this case is about a single iPhone, but quickly admitted that the case could “potentially” set a precedent for further forced unlockings.

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Apple’s Sewell, however, didn’t get off much easier. Representative Trey Gowdy pushed the Apple vice president and general counsel to illustrate how forcing the company to work on a backdoor is different than compelling a doctor to perform a surgery that could help a case (a precedent Gowdy stressed had already been set). Committee members also grilled Sewell on whether Apple had any solutions to the encryption predicament.

James Comey. Courtesy of Columbia Law School
James Comey. Courtesy of Columbia Law School

“We draft [rules to deal with encryption] and then your army of government relations folks opposes it,” Gowdy said. “Why don’t you propose it? Tell us what you could agree to.”

Sewell said Apple is “willing to and we’ve offered” to help lawmakers craft rules that respect user privacy while also allowing law enforcement to do their job, but declined to provide any solutions.

However, encryption was the center of the day’s discussion. Comey and Sewell agreed that encryption software is either already here or coming soon that won’t allow law enforcement to access many people’s digital belongings.

Comey urged lawmakers to respond now before companies release technologies beyond law enforcement’s grasp. But Sewell argued that open-source and foreign encryption solutions are already easily accessible, so weakening an American company’s devices won’t do much to stop encryption from encroaching on law enforcement’s capabilities.

Landau, the cybersecurity professor, also noted that even if the backdoor is only used at Apple’s facilities, the floodgates will open for many more of these kinds of requests and Apple will be forced to set up a system to deal with them. That system will eventually, Landau argues, let something hugely consequential slip through, especially as it’s foisted on down the management chain to less concerned employees.

For a five-hour hearing, it was actually an illuminating debate on balancing privacy and security in a world where encryption can eliminate the government’s ability to access data. You can catch the entire hearing below. Some of the most interesting questioning came from representatives Darrell Issa and Zoe Lofgren, who seemed to embrace the future of encryption, and the heated exchange from Gowdy mentioned above.

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