Apple vs FBI: Read Apple’s Opening Statement To Congress Tomorrow

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Apple’s general counsel Bruce Sewell will testify before a congressional Judiciary Committee tomorrow. The hearing has been convened to discuss what is being described as “The Encryption Tightrope” — subtitle: “Balancing Americans’ Security and Privacy”. Sewell’s opening statement can be read below in full. FBI director James Comey will also testify.

The reason for the hearing is the publicity surrounding an FBI-induced court order relating to an iPhone 5c used by one of the San Bernardino shooters. A judge in California ordered Apple to comply with the FBI request to create a modified version of its OS with intentionally weakened security features to make it easier for the agency to crack the device’s passcode via brute force techniques.

Apple has been appealing the court order, warning that the court order would set a dangerous precedent, and arguing it would not just be used to unlock one device, as the government claims. But rather that state agencies would seek to apply the same security bypass to multiple cases (as we wrote last week there are 12 other active cases involving iPhones or iPads and government unlocking requests).

In other words, Apple’s argument is that the FBI’s demand would effectively create a backdoor into iOS, with the risk that this yet-to-be-created more vulnerable version of the software might find its way into the wild — risking the data of millions of iOS users in the process. The long-in-the-tooth general purpose legal mechanism used by the FBI to try to force Apple’s hand is called the All Writs Act (AWA).

Today a New York judge weighing the US government’s use of the AWA in another case involving a locked iPhone has ruled in Apple’s favor, denying a request to compel Apple to unlock the device in question. Apple will be buoyed by that ruling, which puts yet more emphasis on the congressional hearings that are about to kick off. Point being, systematic state use of a general purpose Writ for such a specific purpose has a distinctly unconstitutional pong to it — hence the NY judge seeking to push lawmakers off of this “murkier area” (as he has previously dubbed it) and create some legal certainty, one way or another.

A “healthy” and public debate is also what Apple has been calling for since the FBI made the San Bernardino request case public. Sewell will re-iterate this sentiment in his opening statement tomorrow, arguing that: “The American people deserve an honest conversation around the important questions stemming from the FBI’s current demand.”

He will also describe the case as “an extraordinary circumstance”, and note that the US government has spent tens of millions of dollars — through the Open Technology Fund and other domestic government programs — to fund strong encryption, thereby underlining the privacy vs security schizophrenia that apparently keeps afflicting governments when politicians and state security agencies clash with increasing use of encryption.

“Encryption is a good thing, a necessary thing,” Sewell will argue. “We have been using it in our products for over a decade. As attacks on our customers’ data become increasingly sophisticated, the tools we use to defend against them must get stronger too. Weakening encryption will only hurt consumers and other well-meaning users who rely on companies like Apple to protect their personal information.”

He will also foreground what’s at stake on the privacy front, invoking the “hundreds of millions of law-abiding people” whose iOS devices are used to store what he will describe as “the most intimate details of their daily lives” — whether that’s photos, private conversations, health care or financial information or location data.

His opening statement can be read in full below:

Opening Statement of Bruce Sewell before the House Judiciary Committee | Tuesday, March 1, 2016

Thank you, Mr. Chairman. It’s my pleasure to appear before you and the Committee today on behalf of Apple. We appreciate your invitation and the opportunity to be part of the discussion on this important issue which centers on the civil liberties at the foundation of our country.

I want to repeat something we have said since the beginning — that the victims and families of the San Bernardino attacks have our deepest sympathies and we strongly agree that justice should be served. Apple has no sympathy for terrorists.

We have the utmost respect for law enforcement and share their goal of creating a safer world. 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. 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.

But we now find ourselves at the center of an extraordinary circumstance. The FBI has asked a Court to order us to give them something we don’t have. To create an operating system that does not exist — because it would be too dangerous. They are asking for a backdoor into the iPhone — specifically to build a software tool that can break the encryption system which protects personal information on every iPhone.

As we have told them — and as we have told the American public — building that software tool would not affect just one iPhone. It would weaken the security for all of them. In fact, just last week Director Comey agreed that the FBI would likely use this precedent in other cases involving other phones. District Attorney Vance has also said he would absolutely plan to use this on over 175 phones. We can all agree this is not about access to just one iPhone.

The FBI is asking Apple to weaken the security of our products. Hackers and cyber criminals could use this to wreak havoc on our privacy and personal safety. It would set a dangerous precedent for government intrusion on the privacy and safety of its citizens.

Hundreds of millions of law-abiding people trust Apple’s products with the most intimate details of their daily lives – photos, private conversations, health data, financial accounts, and information about the user’s location as well as the location of their friends and families. 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. The only way we know to protect that data is through strong encryption.

Every day, over a trillion transactions occur safely over the Internet as a result of encrypted communications. These range from online banking and credit card transactions to the exchange of healthcare records, ideas that will change the world for the better, and communications between loved ones. The US government has spent tens of millions of dollars through the Open Technology Fund and other US government programs to fund strong encryption. 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.

Encryption is a good thing, a necessary thing. We have been using it in our products for over a decade. As attacks on our customers’ data become increasingly sophisticated, the tools we use to defend against them must get stronger too. Weakening encryption will only hurt consumers and other well-meaning users who rely on companies like Apple to protect their personal information.

Today’s hearing is titled Balancing Americans’ Security and Privacy. We believe we can, and we must, have both. Protecting our data with encryption and other methods preserves our privacy and it keeps people safe.

The American people deserve an honest conversation around the important questions stemming from the FBI’s current demand:

Do we want to put a limit on the technology that protects our data, and therefore our privacy and our safety, in the face of increasingly sophisticated cyber attacks? Should the FBI be allowed to stop Apple, or any company, from offering the American people the safest and most secure product it can make?

Should the FBI have the right to compel a company to produce a product it doesn’t already make, to the FBI’s exact specifications and for the FBI’s use?

We believe that each of these questions deserves a healthy discussion, and any decision should be made after a thoughtful and honest consideration of the facts.

Most importantly, the decisions should be made by you and your colleagues as representatives of the people, rather than through a warrant request based on a 220 year- old-statute.

At Apple, we are ready to have this conversation. The feedback and support we’re hearing indicate to us that the American people are ready, too.

We feel strongly that our customers, their families, their friends and their neighbors will be better protected from thieves and terrorists if we can offer the very best protections for their data. And at the same time, the freedoms and liberties we all cherish will be more secure.

Thank you for your time. I look forward to answering your questions.