Congress Warily Eyes Apple-FBI Standoff (Wall Street Journal)

WASHINGTON—As the fight heats up between Apple Inc. and the Justice Department over investigators’ push for access to a locked smartphone, Congress has waded in warily to see if it can broker a compromise or bolster the argument of either side.

But lawmakers say Congress is unlikely to muster a solution anytime soon, because of the presidential election and sharp divisions between lawmakers who stress privacy and those who prioritize national security when it comes to encryption.

Rep. Adam Schiff of California, the top Democrat on the House Intelligence Committee, said Friday that because “Congress is so dysfunctional,” he doesn’t believe it has the capacity to resolve this dispute.


“If it comes down to Congress actually having to do something, we probably can’t do it,” Mr. Schiff said at a meeting with Wall Street Journal reporters. He cited difficulties Congress has had recently in passing even far less controversial tech-related bills.


A federal judge has ordered Apple to help the Federal Bureau of Investigation access dataon the iPhone used by Syed Rizwan Farook, one of the attackers in a terrorist massacre that killed 14 in San Bernardino, Calif., last December. The FBI wants to disable a feature that erases the phone after 10 failed password attempts, so investigators can keep trying to unlock the phone.


Apple says that if it designs a way to unlock this phone, it would make it easier to abuse the privacy of millions of Americans. The Justice Department counters that its request concerns only this particular phone.


With the FBI and Apple facing the prospect of a yearslong court battle, Mr. Schiff and others say it makes sense for Congress to step in and negotiate a legislative solution. But recent history suggests that could be a challenge at best, especially in an election year.


Last June, Congress enacted a bill ending a controversial National Security Agency program to collect bulk phone data. And in December, lawmakers approved a measure providing for tech and other companies to voluntarily share information on cyberthreats.


Both measures were far less complex and controversial than an encryption compromise would be, yet they took months or years of bitter fighting to be approved.


Still, some are trying to make progress on the issue. Senate Intelligence Committee Chairman Richard Burr (R., N.C.) has said he is working on legislation that could set new federal standards for the design or use of encryption tools. But the idea appears far from reality, and the senator has signaled he is still studying the issue and has made no decisions on the shape of any bill.


Billions of encrypted text messages are now sent every day, creating a growing problem for law enforcement, which increasingly finds itself seeking messages and other data from smartphones and other devices used by suspects. Some lawmakers suggest a compromise could, for example, require tech companies to help investigators if there is no other way to get the information and only in certain categories of serious crime.


Technology companies and the Justice Department have tangled over encryption technology for more than a year, but the debate intensified in the past two weeks after the magistrate judge ordered Apple to assist the Justice Department in unlocking Mr. Farook’s phone.


A major obstacle to congressional action this year is the presidential campaign, which is prodding candidates to take outspoken positions even while making it hard for lawmakers to deviate from them.


Sen. Marco Rubio (R., Fla.) said Apple should comply with the judge’s order. “The only thing they’re being asked to do—and the FBI made this very clear about 48 hours ago—is allow us to disable the self-destruct mode that’s in the Apple phone so that we can try to guess, using our own systems, what the password of this killer was,” Mr. Rubio said Thursday at the Republican debate in Houston. “And I think they should comply with that.”


He added, “Apple doesn’t want to do this because they think it hurts their brand. Well, let me tell you, their brand is not superior to the national security of the United States of America.”


Apple Chief Executive Tim Cook disputed that assertion in a letter to employees this week. “Nothing could be further from the truth,” he wrote. “This is and always has been about our customers. We feel strongly that if we were to do what the government has asked of us—to create a backdoor to our products—not only is it unlawful, but it puts the vast majority of good and law abiding citizens, who rely on iPhone to protect their most personal and important data, at risk.”


Sen. Ron Wyden (D., Ore.) backed this view, saying that Apple is essentially being asked to create a master key to iPhones. “Once you have those keys out there, understand that cyber-hackers and nonstate actors who threaten the United States—you’re going to have a problem with making sure they don’t get them,” Mr. Wyden said Thursday on Portland TV station KGW.


Ohio Gov. John Kasich, who like Mr. Rubio is seeking the GOP nomination, said it is up to the White House to broker a compromise between Apple and the Justice Department.


“You know what you do when you’re the president?” Mr. Kasich said at Thursday’s debate. “You lock the door and you say, ‘You’re not coming out until you reach an agreement that both gives the security people what they need and protects the rights of Americans.”


Mr. Schiff said the White House has in fact been quietly involved in such discussions. “I think the president has been involved,” Mr. Schiff said. “I think it’s been worthwhile.”


Given the lack of progress in Congress, some have proposed a broad-based commission to tackle the issue. Sen. Mark Warner (D., Va.) and Rep. Mike McCaul (R., Texas), chairman of the House Homeland Security Committee, say they’ll introduce a bill soon creating a 16-member commission to look at encryption and other digital security threats.


“This solution brings all the stakeholders together in the same room,” Mr. McCaul said at an event at the Bipartisan Policy Center earlier this week.


But others said the fact that a commission is being discussed highlights how far the issue is from a viable legislative solution.

Source: Wall Street Journal