Apple Vs. FBI: New York & California Legislators Encourage Congress To Reject Apple’s Testimony

New York Assemblyman Matthew Titone (D-Staten Island) and California Legislator Jim Cooper (D-Elk Grove) are publicly calling on Congress to enact a statute that would require “all operating system designers for smart phones and tablets sold or leased in the United States to ensure data on its devices is accessible to law enforcement, pursuant to a search warrant,” according to a statement Titone sent to iDigitalTimes.

Congress enacting such a statute would fly in the face of Apple’s declared intent to close the current loophole that the FBI, through the Justice Department is requesting Apple exploit to unlock an iPhone connected to the December 2015 San Bernardino shooting.

It would also be in direct opposition to the ENCRYPT Act of 2016, a bill recently introduced to the U.S. House of Representatives by Ted Lieu (D-Calif.) and Blake Farenthold (R-Texas). If the ENCRYPT Act passes in both chambers, it would “prevent any state or locality from mandating that a ‘manufacturer, developer, seller, or provider’ design or alter the security of a product so it can be decrypted or surveilled by authorities.”

“These companies are misleading the public by inappropriately feeding the narrative that decrypting smartphones will create a ‘backdoor’ that criminals can exploit, which is simply untrue,” Titone said in the statement. “The public is inappropriately being made to weigh the value of privacy against safety and that is a highly deceitful tactic."

Apple published an open letter Feb. 16 in response to the FBI’s request that stated quite the opposite, saying, “The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.”

The Justice Department agrees with Titone’s sentiment, going as far as publicly saying Apple’s protests are rooted in “its concern for its business model and public brand marketing strategy,” rather than any legal rationale, according to The New York Times.

“We would prefer to have legislation on the national level but if we have to do it piecemeal state-by-state we will,” Cooper said in the statement Titone sent to iDigitalTimes. “We cannot afford to let criminals, especially human traffickers hide their criminal activities via unbreakable encrypted phones."

The representatives have introduced nearly identical bills in New York and California that would require any smartphones sold or purchased in the respective states to be unlockable by a device’s manufacturer, despite being encrypted.

"We have introduced legislation on the state level because Congress has failed to act," Titone said in the statement. “Assemblyman Cooper and I understand the importance of making smartphone data accessible to law enforcement, which is why we have come together with our appeal to Congress. We applaud and endorse a national commission because that would be vital to advancing the conversation about smartphone encryption by starting a collaboration process between experts, however it is imperative it be formed immediately and required to deliver a report in an expeditious and judicious manner."

Apple later followed up and further explained the position laid out in the open letter by publishing an FAQ about the issue and sending out an all-hands memo to Apple employees. The memo called on the government to "withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology and civil liberties to discuss the implications for law enforcement, national security, privacy and personal freedoms.”

“The FBI is not asking to create a ‘backdoor’ or any other kind of vulnerability that would jeopardize the security of any other phone,” Cooper said. “They are requesting Apple do what they alone can in providing their digital signature so as to bypass the iPhone’s built-in security measures. Like many Californians, I’m appalled that after two months and a federal court order, the manufacturer of a phone used in a terrorist attack is unwilling to help law enforcement access crucial evidence."

FBI Director James Comey said much the same thing in a post he published on the legal blog Lawfare.

“The particular legal issue is actually quite narrow. The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve,” Comey wrote. “We simply want the chance, with a search warrant, to try to guess the terrorist's passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That's it. We don't want to break anyone's encryption or set a master key loose on the land. I hope thoughtful people will take the time to understand that.”

However, two days before Comey published his blog post, Bloomberg revealed senior national security officials issued a memo to “agencies across the U.S. government to find ways to counter encryption software and gain access to the most heavily protected user data on the most secure consumer devices, including Apple Inc.’s iPhone.” Bloomberg went on to write that, “Details of the memo reveal that, in private, the government was honing a sharper edge to its relationship with Silicon Valley alongside more public signs of rapprochement.”

The Wall Street Journal compounded this by reporting on the existence of dozens not-yet public court orders the Justice Department is pursuing against Apple, to “force Apple Inc. to help investigators extract data from iPhones in about a dozen undisclosed cases around the country.” The Wall Street Journal cited the information as coming from “people familiar with the matter.”

Google, Twitter, Facebook, Mozilla and Microsoft have all come out in support of Apple, and even Bill Gates made a statement.

"Encryption provides greater protection to one’s phone than one has in one’s home, which, has always been afforded the highest level of privacy protection by courts," Manhattan District Attorney Cyrus Vance, Jr. said in the statement Titone sent to iDigitalTimes. "Apple and Google should not be able to alter this constitutional balance unilaterally. Every home can be entered with a search warrant. The same should be true of devices."

According to the statement, the Manhattan District Attorney Office was unable to unlock 175 Apple devices that were intrinsically connected to investigations regarding homicides, attempted murders, the sexual abuse of a child, sex trafficking, assaults and robberies between October 2014 and January 2016.

During the same time period, the Manhattan District Attorney’s Office was able to utilize an unlocked iPhone on one occasion to retrieve a video file a homicide victim had created of their attacker immediately before their death, and then on a separate occasion, use the data on an unlocked iPhone data to exonerate a homicide suspect while finding evidence that tied another individual to the crime.

"In the digital age the majority of people communicate via cell phones and a lot of information can be transferred between two phones," said Cooper in the statement. “When law enforcement makes an arrest and collects a phone from a victim or suspect, prior to 2014 they would use data on the device to build a case. When law enforcement cannot access data on a device even with a court order from a judge, it poses a serious threat to the public’s safety and undermines our country’s judicial process."

“It is not appropriate for the government to obtain through the courts what they couldn’t get through the legislative process," Theodore J. Boutrous, Apple’s lawyer in the court case regarding to the FBI’s request, said to the Los Angeles Times. “The government here is trying to use this statute from 1789 in a way that it has never been used before. They are seeking a court order to compel Apple to write new software, to compel speech."

According to the Los Angeles Times, Boutrous plans to argue that the First Amendment protects Apple from having to comply with the court order.

Apple CEO Tim Cook is inclined to agree. In an interview on World News Tonight with David Muir, Cook said that Apple “would be prepared to take this issue all the way,” alluding to the Supreme Court. "This [master key] is not something we would create," Cook said. "This would be bad for America. It would also set a precedent that I believe many people in America would be offended by."

"I think safety of the public is incredibly important -- safety of our kids, safety of our family is very important. The protection of people's data is incredibly important, and so the trade-off here is we know that doing this could expose people to incredible vulnerabilities,” Cook said in the World News Tonight interview shown above. “It’s clear that it would be a precedent. New York law enforcement is already talking about having 175 phones there. Other counties across the United States are talking about phones they have. And so it is a slippery slope. I don’t fear it. It is one.”

Apple went on to file a motion to vacate the court order to create a backdoor to circumvent iOS’s encryption measures Feb. 26. Speaking to an Apple executive as well as the Justice Department spokesperson, ABC News reports that “Apple's motion to vacate the federal court order alleges "rather than pursue new legislation, the government backed away from Congress and turned to the courts, a forum ill-suited to address the myriad competing interests, potential ramifications, and unintended consequences presented by the government’s unprecedented demand.’”

“This is not a case about one isolated iPhone,” Apple’s attorneys wrote when they filed the motion according to ABC News. “Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe."

Apple general counsel Bruce Sewell will appear in front of the Judiciary Committee in the House of Representatives to argue Apple’s position to Congress March 1 at 1 p.m. EST. Titled, “The Encryption Tightrope: Balancing Americans' Security and Privacy,” Comey will be speaking at the hearing as well, albeit during a separate panel.

Vance Jr. will also testify at the hearing, as will Susan Landau, an encryption specialist and professor at Worcester Polytechnic Institute. While Comey has not submitted his testimony yet, the prepared statements from the other witnesses are available to read in advance here.