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 The remarks were a slight change to Comey's statement last week that
ordering Apple to unlock the phone was "unlikely to be a
trailblazer" for setting a precedent for other cases.
Tuesday's testimony from Comey and remarks before the same U.S.
House Judiciary Committee by Apple's general counsel, Bruce Sewell,
brought to Congress a public fight between Apple and the government
over the dueling interests of privacy and security that has so far
only been heard in the courts.
On Feb. 16, a federal court in California instructed Apple to write
special software to unlock the iPhone 5c used by gunman Rizwan
Farook, an order the company is contesting.
Sewell and Comey's remarks also clarified some areas where the two
sides fundamentally disagree. Comey said the tool created for
Farook's iPhone would not work on other models. But Sewell said the
tool that Apple was being asked to create would work on any iPhone.
"This is not about the San Bernardino case. This is about the safety
and security of every iPhone that is in use today," Sewell said.
Committee members seized on Comey's statement that the case could
set a legal precedent allowing the agency access to any encrypted
device.
"Given... that Congress has explicitly denied you that authority so
far, can you appreciate our frustration that this case appears to be
little more than an end run around this committee?" asked the
panel's ranking minority member, Michigan Representative John
Conyers.
Comey responded that the Federal Bureau of Investigation was not
asking to expand the government’s surveillance authority, but rather
to maintain its ability to obtain electronic information under legal
authorities that Congress has already provided.
He also acknowledged that it was a "mistake" for the FBI to have
asked San Bernardino County officials to reset the phone's cloud
storage account after it was seized. The decision prevented the
device, which was owned by the county, Farook's employer, from
backing up information that the FBI could have read.
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Farook and his wife, Tashfeen Malik, shot and killed 14 people and
wounded 22 others last Dec. 2 before they were themselves killed in
a shootout with police. The government has said the attack was
inspired by Islamist militants and the FBI wants to read the phone's
data to investigate any links with militant groups.
Comey told a congressional panel last Thursday that the phone could
have "locator services" that would help the agency fill in a gap in
its knowledge of the route the couple traveled as they fled.
"We're missing 19 minutes before they were finally killed by law
enforcement," Comey said. "The answer to that might be on the
device."
A federal judge handed Apple a victory in another phone unlocking
case in Brooklyn on Monday, ruling that he did not have the legal
authority to order Apple to disable the security of an iPhone that
was seized during a drug investigation.
U.S. Attorney General Loretta Lynch said on Tuesday at the RSA
Cybersecurity conference in San Francisco that she was
"disappointed" by the Brooklyn ruling, and rebuffed Apple's claim
that its Fifth Amendment protection against self-incrimination was
being violated.
The Justice Department is "not alleging that [Apple has] done
anything wrong,” Lynch said, but is treating the company as a third
party holding data valuable to an ongoing investigation. Manhattan
District Attorney Cyrus Vance testified in support of the FBI on
Tuesday, arguing that default device encryption "severely harms"
criminal prosecutions at the state level, including in cases in his
district involving at least 175 iPhones.
(Reporting by Julia Edwards and Julia Harte; Editing by Bill Rigby
and Grant McCool)
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