- Companies may be preempted from refusing U.S. access to data
- Legislation being shaped by bipartisan push in Congress
Apple Inc. and other U.S. companies wouldn’t be able to refuse government orders for access to encrypted data under legislation being drafted by the top Republican and Democrat on the Senate intelligence committee and gaining momentum in Congress.
The measure from Senators Richard Burr, a North Carolina Republican, and Dianne Feinstein, a California Democrat, comes amid the bitter standoff between Apple and the FBI over the government gaining access to the contents of an iPhone used by the terrorist gunman in the San Bernardino, California, shooting massacre.
"Apple is actually breaking the law," Burr said in an interview in Washington. "The rule of law is not something that can be applied some time and not all the time."
The dispute between Apple and the Federal Bureau of Investigation is part of a larger debate within Congress, the administration and the technology industry about whether law enforcement and intelligence agencies should be able to access encrypted communications. The issue has sharply divided lawmakers, and thwarted past efforts to reach compromise.
That may have changed when the FBI served Apple with a court order on Feb. 16 requiring the company to write a new software program to unlock the phone used by Syed Rizwan Farook in the shooting spree in December. Farook, along with his wife, shot to death 14 workers in San Bernardino before the couple was killed by police. The FBI wants to know where they had been and who helped them.
Apple is refusing to cooperate. Apple’s chief executive Tim Cook has vowed to fight the order, saying the software doesn’t exist and creating it would set a "dangerous precedent" and potentially put billions of iPhones at risk of being hacked or spied on by governments. Apple’s response to the court is due Friday.
The bill is in draft form and may be introduced next month. Burr said it will apply to all U.S. companies -- not just those in the technology industry.
The bill targets a bigger issue than the current debate in that more companies will use encrypted networks in the future, Burr said. Right now, however, he said he’s not interested in specifying in the legislation how companies have to abide by orders or any penalties for failing to comply.
"If we believe that technology is going to be a static product in the future, that it’s not going any further, then maybe we can accept Apple’s argument," Burr said. "Technology is going to play a role in every business in a very big way."
The bill would create a standard of federal preemption by eliminating any legal argument by Apple or other companies that they don’t have to comply with court orders for access to data.
Democratic Senator Ron Wyden of Oregon, who is backing Apple, said the idea of automatically preempting companies is wrong and would force them to be akin to spy agents of the government.
"That would in effect be a substantial set back from the standpoint of security, liberty and America’s ability to have high-skilled, high-wage jobs," Wyden told reporters.
Wyden said his strategy is to use the Apple case to demonstrate the need for strong encryption.
Feinstein, however, expressed a sense of urgency with regard to the Apple case because the FBI still doesn’t know if Farook and his wife communicated with any terror suspects overseas or if they are connected to a domestic terrorist cell.
Cooperate With Warrants
Feinstein said a goal of the bill is to establish in law that companies have to cooperate with warrants based on probable cause.
"I have been kind of reeling back in surprise because I didn’t think a company would set itself above the law, particularly a California-based company like Apple, which is a great company," Feinstein told reporters.
"I can tell you the FBI is doing everything possible to see that Americans are protected," Feinstein said. "You can’t do this unless you have the information that enables you to do a complete investigation."
Cook has called for the FBI to back down and instead for Congress to create a national commission to study the encryption issue and make recommendations.
Any commission, however, should conclude its work in 90 days and include representatives from state and local law enforcement agencies, Manhattan District Attorney Cyrus Vance Jr. said in a statement Tuesday. Vance and other New York officials have said they have iPhones they want unlocked.
"Time is not a luxury that state and local law enforcement, crime victims, and communities can afford," Vance said. "Congress has held numerous hearings on encryption since September 2014 and, to my knowledge, Apple has not testified at any of them. I am pleased that the company is willing to join the conversation now."
Prosecutors in New York, Chicago and California have demanded that Apple unlock 12 phones, the company said in a letter to a Brooklyn judge who is overseeing a case involving a drug dealer’s smartphone. The letter was unsealed Tuesday.
Representative Michael McCaul of Texas, the Republican chairman of the House Homeland Security Committee, and Senator Mark Warner, a Virginia Democrat, are drafting legislation that would create a commission. The lawmakers are scheduled to speak on their proposal at an event Wednesday in Washington.
Republican Senator Jeff Sessions of Alabama questioned Cook’s position. "Coming from a law enforcement background, I believe this is a more serious issue than Tim Cook understands," Sessions said. He said accessing phones is critical to law enforcement.
"In a criminal case, or could be a life and death terrorist case, accessing a phone means the case is over. Time and time again, that kind of information results in an immediate guilty plea, case over," Sessions said. He added that the ability for government to access a phone should not be abused.