Apple and the FBI spar at Congressional hearing on encryption

The FBI’s legal battle with Apple over an iPhone belonging to one of the San Bernardino shooters was rehashed today before the House Energy and Commerce Committee, which heard testimony from law enforcement officials and technologists about the role encryption plays in criminal investigations.

The FBI’s executive assistant director for science and technology, Amy Hess, and Apple’s senior vice president and general counsel Bruce Sewell were among the panelists who offered testimony. Hess claimed that, since October, the FBI has encountered passwords on 30 percent of the devices it has obtained during investigations, and have had no capability to unlock the devices 13 percent of the time. Sewell emphasized Apple’s collaboration with law enforcement, saying that his company assists investigators on a daily basis and has helped rescue child victims from their abductors.

Lawmakers pushed Hess to discuss the FBI’s reliance on a third party to crack the iPhone at the center of the San Bernardino case. The FBI asked a court to force Apple to develop custom software to help unlock the phone, which was used by San Bernardino attacker Syed Farook, but later backed down when an unnamed party showed the FBI how to access the device.

Rep. Anna Eshoo, whose district includes Silicon Valley, engaged in a testy exchange with Hess, calling the FBI’s approach to Apple in the San Bernardino case “breathtaking” and criticizing the agency for resetting the phone’s iCloud password without first consulting Apple. Other members of the Congressional committee questioned whether the FBI would continue to rely on hackers going forward, or if the agency would develop its own hacking expertise.

“I do think certainly we need people who have those specialized skills,” Hess answered. “That said, there is no one-size-fits-all solution to this.” However, Hess also said that the agency is investing its budget into “possible tools we might be able to throw at the problem” rather than hiring technologists and called on the industry and academia to provide tools for law enforcement.

However, Apple’s Sewell said that his company had prepared for a sit-down meeting with the FBI to address its concerns about evidence “going dark” behind encryption, but the meeting was cancelled when the FBI filed its San Bernardino case. He said that Apple is willing to help train law enforcement representatives, but that the debate would need to “get out of the lawsuit world” in order to be effective.

Sewell also rejected claims made by one of the law enforcement panelists, Captain Charles Cohen of the Indiana State Police, that Apple had provided its source code to the Chinese government and that it had discarded its ability to access customer data with the rollout of iOS 8. “We have not provided source code to the Chinese government. We did not have a key 19 months ago that we threw away,” Sewell testified. “Those allegations are without merit.”

Although the hearing is over, the debate over encryption will continue. Last month, lawmakers formed an encryption working group to address the use and regulation of encryption, and other members of Congress have already proposed legislation to introduce backdoors into encrypted communication.

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