Encryption Legislation Looms Over Washington After Apple Court Order

“Apple chose to protect a dead ISIS terrorist’s privacy over the security of the American people,” Sen. Tom Cotton says, while Sen. Dianne Feinstein vows to introduce a bill to force Apple to comply with a court order giving the FBI access to the San Bernardino shooters’ phone.

Joshua Roberts / Reuters

A court order compelling Apple to help unlock an encrypted iPhone fits into the FBI’s broader campaign to pressure Congress on encryption legislation, privacy advocates and some lawmakers on Capitol Hill say.

Last week, FBI Director James Comey revealed for the first time that a phone belonging to the San Bernardino couple who murdered 14 people in a mass-shooting remained locked and inaccessible, despite the FBI’s efforts. On Tuesday, a federal judge ordered Apple to help the FBI unlock the phone.

While Apple has vowed to challenge the order compelling its engineers to hack into a device and bypass an encryption security feature, lawmakers in Washington continue to wrestle with possible legislation.

Sen. Dianne Feinstein, perhaps the most vocal proponent of Congressional action on encryption told BuzzFeed News she supports the court order. “I understand there are privacy concerns, but in this case the phone is owned by the county—which has consented to a search—and there is a valid search warrant,” she said. “It’s not unreasonable for Apple to provide technical assistance when ordered by the court.”

Feinstein said in a CNN interview Wednesday that she will draft legislation requiring Apple to comply if it continues to fight against the court order. Under the judge’s ruling, Apple has five days to contest the order.

The latest clash over encryption, consumer privacy, and the duties of law enforcement extend an intense two-year debate that has pitted the FBI against the giants of Silicon Valley. At stake, policymakers say, is not just one investigation or one terrorist’s phone, but the future of national security and freedom from government surveillance.

“Our concern is this is about much more than the San Bernardino investigation.”

Marc Rotenberg, the president of the Electronic Privacy Information Center, said the repercussions of a judge ordering Apple to hack into one if its products have not been fully thought through. At risk, Rotenberg believes, is the privacy of every consumer who uses an electronic device.

“Our concern is this is about much more than the San Bernardino investigation,” he told BuzzFeed News. “The privacy implications are staggering.”

Rotenberg said the court order is part of a larger political effort led by FBI Director James Comey, who continues to pressure Silicon Valley — and Apple in particular — to design their consumer products to allow special government access into them. Not only would this case set a precedent for granting special government access into consumer devices, Rotenberg said, it would also set a model for other nations to follow.

“He’s been quite outspoken,” Rotenberg said, referring to Comey. “I’ve been troubled by his use of this investigation. He appears to be using it for a larger political purpose, which should set off alarm bells.”

Sen. Mark Warner, who is advancing a bill to study thorny tech issues, including encryption, said that new encryption policy should not be set by judges, especially since the technology touches so many areas of political life, from national security to global commerce.

“The courts should not be left to set policy without a national dialogue on how our national security and technology policy interact,” Warner told BuzzFeed News. “Absent a national consensus, we might end up with an ad hoc policy with serious long term ramifications.”

Rep. Adam Schiff echoed Warner’s remarks, saying encryption policy is a crucial issue that should be settled by Congress, the administration, and private industry. “At the moment, we are far from any consensus, he told BuzzFeed News, “but the court’s decision will likely accelerate our consideration of how to weigh the competing privacy, security and competitiveness issues.”

Rep. Ted Lieu, who opposes encryption legislation, told BuzzFeed News that the FBI is essentially trying to make Apple an arm of law enforcement. “This court order also begs the question: Where does this kind of coercion stop?” he said.

“Can the government force Facebook to create software that provides analytic data on who is likely to be a criminal?” Lieu said. “Can the government force Google to provide the names of all people who searched for the term ISIL? Can the government force Amazon to write software that identifies who might be suspicious based on the books they ordered?”

Other lawmakers say the case may set a legal precedent in which American tech companies can be compelled to weaken their encryption systems in all future cases.

“If upheld, this decision could force U.S. technology companies to actually build hacking tools for government against their will, while weakening cybersecurity for millions of Americans in the process,” Sen. Ron Wyden told BuzzFeed News.

Wyden also pointed to the international fallout. “Why in the world would our government want to give repressive regimes in Russia and China a blueprint for forcing American companies to create a backdoor?” he said.

“Apple chose to protect a dead ISIS terrorist’s privacy over the security of the American people.”

Leveling strongly worded criticism against Apple, Sen. Tom Cotton said that legislation altering encryption systems is likely the only path forward. “Apple chose to protect a dead ISIS terrorist’s privacy over the security of the American people,” he said in a statement. “The Executive and Legislative Branches have been working with the private sector with the hope of resolving the ‘Going Dark’ problem. Regrettably, the position Tim Cook and Apple have taken shows that they are unwilling to compromise,” he said.

At a Senate hearing last week, Comey repeated his position that he and the Obama administration do not wish force tech companies to install encryption backdoors. “I don’t want a door, I don’t want a window, I don’t want a sliding glass door,” Comey said. “I would like people to comply with court orders, and that’s the conversation we’re trying to have.”

But the FBI’s demands on Apple appear to escalate the “going dark” debate past mere conversation. And to legal and security experts, what the FBI is asking for is a backdoor by any other name. “This is about using the court system to try to impose obligations on a company that are inconsistent with our constitutional standards,” Neema Guliani, the ACLU’s legislative counsel, told BuzzFeed News.

“There’s a certain irony that on one hand the Department of Justice has said we are interested in working with companies on a solution, but on the other hand you see them trying to compel providers,” Guliani said.

Other privacy groups have been quick to rally around Apple, emphasizing the ramifications outside of San Bernardino.

“That’s been Comey’s agenda since 2014,” Andrew Crocker, a staff attorney for the Electronic Frontier Foundation, told BuzzFeed News. “If they win, it’s very possible that the FBI would use this as leverage to pass legislation.” The EFF intends to support Apple’s legal challenge to the judge’s order.

“It’s really an unsettled issue in the law as to how far the government can go in forcing companies to aid in surveillance,” Christopher Sogohoian, the ACLU’s principal technologist, told BuzzFeed News. “The government is pointing a gun at the heads of Apple programmers and saying ‘write new code.’”

Despite Comey’s remarks, Apple too insists that what the FBI is demanding is in fact a backdoor.

“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,” said Apple CEO Tim Cook in an open letter early Wednesday. “No reasonable person would find that acceptable.”

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Hamza Shaban is a technology policy reporter for BuzzFeed News and is based in Washington, D.C.
Contact Hamza Shaban at

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