- The Washington Times - Tuesday, March 1, 2016

Top officials from Apple and the FBI are set to spar over the issue of encryption Tuesday at a Congressional hearing, with a representative from the tech giant hinting at the need for lawmakers to intervene.

The two sides are locked in a legal battle over access to data on an encrypted iPhone that belonged to one of the San Bernardino attackers. Apple is challenging a court order that forces the company to create a way for the FBI to hack the password-protected cellphone, arguing that doing so will undermine the security of its technology and create a template for law enforcement to break into any iPhone.

“Should the FBI have the right to compel a company to produce a product it doesn’t already make, to the FBI’s exact specifications and for the FBI’s use?” Apple General Counsel Bruce Sewell asked in written testimony submitted ahead of the Tuesday afternoon hearing before the House Judiciary Committee.

Lawmakers have expressed interest in drafting legislation that would outline the boundaries of law enforcement capabilities and tech company responsibilities when it comes to handing over encrypted data. Mr. Sewell’s testimony was supportive of that effort.

“We believe that each of these questions deserves a healthy discussion, and any decision should be made after a thoughtful and honest consideration of the facts,” he is expected to testify. “Most importantly, the decisions should be made by you and your colleagues as representatives of the people, rather than through a warrant request based on a 220-year-old statute.”

The FBI has sought access to the data on the phone belonging to San Bernardino shooter Syed Rizwan Farook under the All Writs Act, a broadly written law that says courts can issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

In a blow to the Justice Department’s tactics in the San Bernardino case, a federal judge ruled Monday that it could not use the law to force Apple to provide the FBI with access to locked iPhone in a separate case out of New York.

In submitted testimony, FBI Director James Comey said he believes “there is no one-size-fits-all strategy” that will work to address the growing difficulties that encryption creates for law enforcement investigators. But he sought to highlight the sense of urgency felt among law enforcement who are more frequently encountering the issue.

“We are seeing more and more cases where we believe significant evidence resides on a phone, a tablet or a laptop — evidence that may be the difference between an offender being convicted or acquitted,” he said in submitted testimony. “If we cannot access this evidence, it will have ongoing, significant impacts on our ability to identify, stop and prosecute these offenders.”

Tuesday’s hearing comes as the court battle over Farook’s cellphone continues. A hearing is set before a California judge on the matter for March 22.

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