Apple vs FBI: The US Congressional hearing saw Apple and FBI go head to head on the encryption debate
Apple and the FBI battle it out in US Congressional hearing Getty Images

Apple and the FBI went head-to-head in a five-hour US Congressional hearing, which saw both parties being pounded with questions from members of the House Judiciary Committee. The hearing titled The Encryption Tightrope: Balancing Americans' Security and Privacy saw both Apple and the FBI agree on little other than the need to have a more in-depth discussion on encryption.

The FBI was charged with trying to undermine cybersecurity by high ranking members of the Judiciary Committee. Ranking member John Conyers took a shot at FBI director James Comey for undermining the 227-year-old All Writs Act legislature, by using it to argue the FBI's case on demanding that Apple unlock the iPhone of the San Bernardino killer. California member Zoe Lofgren, whose district also includes parts of the Silicon Valley, said it was a "fool's errand" to demand that Apple provide a backdoor for government specific surveillance.

Apple general counsel Bruce Sewell was put on the spot when Republican representative Trey Gowdy asked Sewell to come up with a hypothetical scenario in which Apple would agree to cooperate with US government agencies on creating a security backdoor or even offer legislative suggestions. "I guarantee you won't like what comes out of Congress," warned another Republican representative Jim Sensenbrenner, who also took Sewell to task on the technical feasibility of breaking into an iPhone.

Security vs Privacy

In efforts to establish the FBI's role and significance in demanding that Apple cooperate with them on current and future criminal investigations, Comey argued: "Before these devices came around, there was no closet, basement or drawer in America that could not be entered with a judge's order. It's not (Apple's) job to watch out for public safety. That's our job." Summarising the FBI's argument, he said, "We are asking Apple to take the vicious guard dog away from the door and let us pick the door."

Sewell hit back by stressing that the FBI's ploy to accuse Apple's arguments as a marketing strategy "makes my blood boil". Citing previous cases where Apple has cooperated with government investigations by providing technological support, Sewell pointed out that the choice to decide whether or not to cooperate falls within the first amendment bracket and to overstep its bounds is akin to "forced labour". He also asserted that the FBI's demand to unlock an iPhone could have far-reaching effects and pertains not just to one iPhone. "This is not about the San Bernardino case," Sewell told Conyers. "This is about the safety and security of every iPhone."

When asked by Gowdy to come up with a hypothetical scenario in which Apple would agree to create a backdoor for the US government Sewell said, "I can't imagine such a fact pattern." However, he assured the Republican representative that should the Congress rule in the FBI's favour and demand that Apple break into its iPhone, the tech giant "will follow the law".

Backdoor access

Apple gained somewhat of a momentous victory on 1 February when a New York district court's judge James Orenstein ruled in its favour in a similar yet separate iPhone hacking case, which incidentally Sewell also included in his argument. Ironically, however, when questioned about Orenstein's ruling, Comey sidestepped the matter entirely by saying that he had not properly perused the ruling to provide a comment.

Apple's closing argument was a compelling appeal to both the Congressional committee and the FBI to consider the ramifications of creating a backdoor. Sewell stressed that if Apple is forced to comply with the FBI's order and create a backdoor for the government to freely use for surveillance, it would only encourage other international governments from countries like China and Russia to begin making similar requests. "If we're ordered to do this, it'll be a hot minute before we get those requests from other (countries)," he said. Sewell also confirmed that both nations had already reached out to Apple to seek backdoors into its customers' data.

Surprisingly, Comey candidly testified that the implications of such a request could result in either China or Russia following the US government's footsteps. Committee chairman Robert Goodlatte, doubled down on Comey's testimony by highlighting the potential implications of the case. "It won't be a one-time request. It'll set precedent for other requests from the FBI and any other law enforcement," Goodlatte said.

Technology in law enforcement

Susan Landua, former Google and National Security Agency (NSA) security savant challenged the FBI to "take a page from the NSA's" book by stepping up its encryption game. "While the NSA has the right to break into a system, nobody ever guaranteed that it would be easy to do so", she said. Landua, also perhaps aptly summarised the need of the hour, by saying: "This is not about a new right of privacy; it's about a new form of security. [This] is very much a 20th century way of looking at a 21st century problem."