James Comey, the FBI director, told a House panel on Tuesday that the so-called “Going Dark” problem is “grave, growing, and extremely complex.” (PDF)
His prepared testimony to the House Judiciary Committee is not surprising. There’s been a chorus of government actors singing that same song for years. But what we didn't hear was the bureau director ask Congress for legislation authorizing encryption backdoors. That’s because there’s no congressional support—which underscores why the President Obama administration is now invoking a 1789 obscure law in federal courthouses asking judges to do what Congress has declined to do.
"If I didn't do that, I oughta be fired," Comey told the panel during his live testimony. The panel's hearing, "Encryption Tightrope: Balancing Americans' Security and Privacy," was largely dedicated to the FBI's legal battle with Apple. He said if the bureau had the capability to bypass iPhone passcode locks in the dozens of pending cases where they've gone to court, "We wouldn't be litigating if we could."
The bureau's latest legal backdoor approach to crypto backdoors is seemingly failing, too.
In the first ruling of its kind, a New York magistrate said Monday he won’t require Apple to assist the government in unlocking a drug dealer’s iPhone. US Magistrate Judge James Orenstein ruled that Congress has already forbidden what the government wants. Orenstein, taking Apple’s position, ruled that President Bill Clinton-era legislation requires telcos to ensure that their facilities have surveillance capabilities like wiretapping. But the Communications Assistance For Law Enforcement Act, the judge noted, generally barred companies from having to decrypt messages.
Orenstein ruled that the courts, and an ancient 1789 law called the All Writs Act, “cannot be a means for the executive branch to achieve a legislative goal that Congress has considered and rejected.”
A “disappointed” Justice Department said Tuesday it would appeal the ruling. That’s because, for the moment, Congress isn’t touching the issue, not even with a 10-foot pole. So far, no federal legislator wants to go down in history as floating this type of legislation—perhaps at least not until the issue first plays itself out in the courts, or the Supreme Court for that matter. Beyond the Crypto Wars of decades past, the closest we saw any modern federal lawmaker support backdoors was two weeks ago.
Sen. Richard Burr (R-N.C.), the chairman of the Senate Intelligence Committee, was mulling legislation that would criminalize a company’s refusal to aid decryption efforts as part of a governmental investigation. A day after floating that trial balloon, Burr backed off on that position amid a public outcry.
That there is no congressional will on this issue readily explains why the Obama administration is asking the Judicial Branch to do what the legislative branch won’t dare to do. Comey told a Senate panel months ago that the administration wasn’t seeking Congressional authority for crypto backdoors.
"The administration has decided not to seek a legislative remedy now, but it makes sense to continue the conversations with industry," Comey told a Senate Homeland Security and Governmental Affairs Committee in October. He reiterated that point again Tuesday before the House Judiciary Committee when he said "There are no demons in this debate. The companies are not evil. The government is not evil."
The most Congress has budged on the issue was last week, when Rep. Mike McCaul (R-Tex.) and Sen. Mark Warner (D-Va.) proposed legislation to create what they called a “National Commission on Security and Technology Challenges.” In legislative parlance, proposing a commission is the equivalent of a punt in American football.
While there may be no congressional support, the administration doesn’t want to be seen as demanding it from lawmakers, either. For starters, it would likely fail. What's more, the administration doesn’t want to be viewed, at least for now, as seeking a wholesale expansion of surveillance authority via a statute. Instead, the administration is taking a legal backdoor approach to crypto backdoors and is asking the judiciary for them on a piecemeal basis.
Consider that the bureau director won’t even acknowledge that they are seeking backdoors from the judiciary. “There is already a door on that iPhone. We’re essentially asking Apple to take that vicious guard dog away,” Comey testified Tuesday.
Judiciary Committee member Rep. John Conyers (D-Mich.) acknowledged the lack of congressional support. Conyers took the occasion to castigate the bureau's courtroom approach in the FBI's ongoing bid to force Apple to create software to help the bureau bypass the passcode lock on a terrorist who killed 14 people in Southern California in December. Oral arguments in that case are set for March 22, and Apple is making the same arguments it asserted in the New York case.
"Can you appreciate our frustration that this case appears to be a little more than an end run around this committee?" Conyers asked.
Comey replied, saying he should be "fired" if he didn't go to court. "We're investigating a horrific terrorist attack," he added.
Minutes before, Committee Chairman Rep. Bob Goodlatte (R-Va.) said the issue was "too complex for the courts and must be left to Congress." Goodlatte has not offered any legislation on the issue, however. Rep. Ted Deutch, (D-Fla.) wondered aloud whether Apple could protect the password-defeating software so it doesn't get in the hands of nefarious actors.
"There's a fear that it might be used by others. How do you balance it. This is a really hard one for me," Deutch asked.
Comey discounted the fear.
"Apple engineers have this in their head. What if they're kidnapped and forced to create software," Comey answered.
Comey walked a tightrope on whether the administration would change its position and ask Congress for decryption legislation.
Committee member Ted Poe (R-Tex.) flat-out asked Comey: "Should Congress resolve this issue?"
"I think there's a huge role for Congress to play," Comey replied. "I think we're playing it today."
Rep. Tom Marino (R-Pa.) followed up on Poe's questioning about whether Congress should intervene.
"I don't think that's for me to say," Comey answered. "I think the courts will sort that out faster than any legislative body could."
And as Comey's three hours on the witness stand came to an end, Rep. David Cicilline (D-R.I.) asked, what if the FBI ultimately comes up empty in court.
"What would your recommendation be?" he asked.
"I'm not prepared to make a recommendation," Comey answered. He added that, if the courts ultimately balk at the FBI, "I think it's something that Congress is going to have to wrestle with."
reader comments
164