Apple’s lead attorney was caught in a heated debate Tuesday after members of Congress criticized the company for sparking a debate over encryption and national security without offering a potential solution.
“All you’ve been saying is no, no, no, no,” Congressman James Sensenbrenner (WI-R) told Apple’s chief counsel Bruce Sewell, who testified in a House Judiciary Committee hearing to discuss the company’s refusal to comply with a court order requesting it bypass the security protections of an iPhone belonging to one of the San Bernardino shooters. “You’ve come to us to ask us to do something, but you don’t know what you want us to do.”
Sewell responded by saying the intent of the hearing was to facilitate a debate that would eventually lead to a legislative resolution from Congress — not present a legislative option for consideration.
“What we’re asking for, congressman, is a debate on this. I don’t have a proposal, I don’t have a solution for it,” he said.
Congressman Trey Gowdy (SC-R) later countered that response, saying “sometimes circumstances are exigent and we don’t have time for a lengthy conversation.”
Congress members seemed generally sympathetic to the national security concerns raised by FBI Director James Comey and the cybersecurity issues Apple presented. But the parties’ unwavering stances presented at the hearing indicated that compromise was unlikely without intervention from Congress or the courts.
During his testimony, FBI Director James Comey warned Congress members of the ramifications of encrypted phone data, saying “the logic of encryption will bring us to a place in the future where all of our communications will be private,” and beyond the reach of government warrants.
Sewell cemented Apple’s position, saying that obeying the FBI’s court order would “degrade the phone security of tens of thousands of people” but won’t “defeat the terrorists.”
In a preemptive move Tuesday, Apple also filed an appeal with the U.S. District Court Central District of California Eastern Division following the hearing.
The tech company filed its notice of objections “in an abundance of caution” late Tuesday, maintaining its position that the FBI’s court order issued by U.S. District Court Judge Sheri Pym in February was unconstitutional.
The FBI contends the order is legally justified under the 18th-century All Writs Act (AWA), which allows the government to tap third parties to help execute a warrant. That argument, however, was weakened Monday when a New York federal judge rejected a similar FBI request.
Judge James Orenstein of the U.S. District Court of the Eastern District of New York dismissed the government’s AWA justification because it didn’t meet the statute’s criteria and that there were no laws requiring Apple to create a digital tool to assist in a law enforcement investigation.
“The relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it,” Orenstein wrote in his decision.
Neither “the closeness of Apple’s relationship to the underlying criminal conduct and government investigation; the burden the requested order would impose on Apple; [nor] the necessity of imposing such a burden on Apple…justifies imposing on Apple the obligation to assist the government’s investigation against its will.”