THE ENCRYPTION TIGHTROPE BALANCING AMERICANS' SECURITY AND PRIVACY HEARING BEFORE THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED FOURTEENTH CONGRESS SECOND SESSION MARCH 1 2016 Serial No 114-78 Printed for the use of the Committee on the Judiciary Available via the World Wide Web http judiciary house gov U S GOVERNMENT PUBLISHING OFFICE 98-899 PDF WASHINGTON 2016 For sale by the Superintendent of Documents U S Government Publishing Office Internet bookstore gpo gov Phone toll free 866 512-1800 DC area 202 512-1800 Fax 202 512-2104 Mail Stop IDCC Washington DC 20402-0001 COMMITTEE ON THE JUDICIARY BOB GOODLATTE Virginia Chairman F JAMES SENSENBRENNER JR JOHN CONYERS JR Michigan JERROLD NADLER New York Wisconsin ZOE LOFGREN California LAMAR S SMITH Texas SHEILA JACKSON LEE Texas STEVE CHABOT Ohio STEVE COHEN Tennessee DARRELL E ISSA California HENRY C ''HANK'' JOHNSON JR J RANDY FORBES Virginia Georgia STEVE KING Iowa PEDRO R PIERLUISI Puerto Rico TRENT FRANKS Arizona JUDY CHU California LOUIE GOHMERT Texas TED DEUTCH Florida JIM JORDAN Ohio LUIS V GUTIERREZ Illinois TED POE Texas KAREN BASS California JASON CHAFFETZ Utah CEDRIC RICHMOND Louisiana TOM MARINO Pennsylvania SUZAN DelBENE Washington TREY GOWDY South Carolina L LABRADOR Idaho HAKEEM JEFFRIES New York RAU DAVID N CICILLINE Rhode Island BLAKE FARENTHOLD Texas SCOTT PETERS California DOUG COLLINS Georgia RON DeSANTIS Florida MIMI WALTERS California KEN BUCK Colorado JOHN RATCLIFFE Texas DAVE TROTT Michigan MIKE BISHOP Michigan SHELLEY HUSBAND Chief of Staff General Counsel PERRY APELBAUM Minority Staff Director Chief Counsel II CONTENTS MARCH 1 2016 Page OPENING STATEMENTS The Honorable Bob Goodlatte a Representative in Congress from the State of Virginia and Chairman Committee on the Judiciary The Honorable John Conyers Jr a Representative in Congress from the State of Michigan and Ranking Member Committee on the Judiciary 1 4 WITNESSES Honorable James B Comey Director Federal Bureau of Investigation Oral Testimony Prepared Statement Bruce Sewell Senior Vice President and General Counsel Apple Inc Oral Testimony Prepared Statement Susan Landau Ph D Professor of Cybersecurity Policy Worcester Polytechnic Institute Oral Testimony Prepared Statement Cyrus R Vance Jr District Attorney New York County Oral Testimony Prepared Statement 6 9 98 101 104 106 131 133 LETTERS STATEMENTS ETC SUBMITTED FOR THE HEARING Material submitted by the Honorable Steve Chabot a Representative in Congress from the State of Ohio and Member Committee on the Judiciary Material submitted by the Honorable Darrell E Issa a Representative in Congress from the State of California and Member Committee on the Judiciary Material submitted by the Honorable Zoe Lofgren a Representative in Congress from the State of California and Member Committee on the Judiciary Material submitted by the Honorable Cedric Richmond a Representative in Congress from the State of Louisiana and Member Committee on the Judiciary Material submitted by the Honorable Bob Goodlatte a Representative in Congress from the State of Virginia and Chairman Committee on the Judiciary 18 31 43 68 87 APPENDIX MATERIAL SUBMITTED FOR THE HEARING RECORD Material submitted by the Honorable Bob Goodlatte a Representative in Congress from the State of Virginia and Chairman Committee on the Judiciary Material submitted by the Honorable Doug Collins a Representative in Congress from the State of Georgia and Member Committee on the Judiciary Questions for the Record submitted to the Honorable James B Comey Director Federal Bureau of Investigation III 180 183 186 IV Page Response to Questions for the Record from Bruce Sewell Senior Vice President and General Counsel Apple Inc Response to Questions for the Record from Susan Landau Ph D Professor of Cybersecurity Policy Worcester Polytechnic Institute Response to Questions for the Record from Cyrus R Vance Jr District Attorney New York County 189 201 209 OFFICIAL HEARING RECORD UNPRINTED MATERIAL SUBMITTED FOR THE HEARING RECORD Material submitted by the Honorable Zoe Lofgren a Representative in Congress from the State of California and Member Committee on the Judiciary This submission is available at the Committee and can also be accessed at http docs house gov Committee Calendar ByEvent aspx EventID 104573 Material submitted by Bruce Sewell Senior Vice President and General Counsel Apple Inc This submission is available at the Committee and can also be accessed at http docs house gov Committee Calendar ByEvent aspx EventID 104573 THE ENCRYPTION TIGHTROPE BALANCING AMERICANS' SECURITY AND PRIVACY TUESDAY MARCH 1 2016 HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY Washington DC The Committee met pursuant to call at 1 05 p m in room 2141 Rayburn House Office Building the Honorable Bob Goodlatte Chairman of the Committee presiding Present Representatives Goodlatte Sensenbrenner Chabot Issa King Jordan Poe Chaffetz Marino Gowdy Labrador Collins DeSantis Walters Buck Conyers Nadler Lofgren Cohen Johnson Chu Deutch Gutierrez Bass Richmond DelBene Jeffries Cicilline and Peters Staff Present Majority Shelley Husband Chief of Staff General Counsel Branden Ritchie Deputy Chief of Staff Chief Counsel Zachary Somers Parliamentarian General Counsel Kelsey Williams Clerk Caroline Lynch Chief Counsel Subcommittee on Crime Terrorism Homeland Security and Investigations Ryan Breitenbach Counsel Subcommittee on Crime Terrorism Homeland Security and Investigations Minority Perry Apelbaum Staff Director Chief Counsel Danielle Brown Parliamentarian Chief Legislative Counsel Aaron Hiller Chief Oversight Counsel Joe Graupensperger Chief Counsel Subcommittee on Crime Terrorism Homeland Security and Investigations James Park Chief Counsel Subcommittee on the Constitution David Greengrass Counsel Eric Williams Crime Detailee and Veronica Eligan Professional Staff Member Mr GOODLATTE We'd ask all the members of the media that are taking thousands of pictures here I'm sure they got some excellent ones of the Director but we ask you to please clear aside so we can begin the hearing The Judiciary Committee will come to order And without objection the Chair is authorized to declare recesses of the Committee at any time We welcome everyone to this afternoon's hearing on The Encryption Tightrope Balancing Americans' Security and Privacy And I will begin by recognizing myself for an opening statement We welcome everyone today to this timely and important hearing on encryption Encryption is a good thing It prevents crime it prevents terrorist attacks it keeps our most valuable information safe yet it is not used as effectively today as is necessary to protect 1 2 against the ever-increasing sophistication of foreign governments criminal enterprises and just plain hackers We see this manifest almost every week in the reports of losses of massive amounts of our most valuable information from government agencies retailers financial institutions and average Americans From identity theft to the compromising of our infrastructure to our economic and military security encryption must play an ever-increasing role and the companies that develop it must be encouraged to increase its effectiveness Encryption is a topic that may sound arcane or only the province of techies but in fact it is a subject whose solutions will have farreaching and lasting consequences The Judiciary Committee is a particularly appropriate forum for this congressional debate to occur As the Committee of exclusive jurisdiction over the United States Constitution the Bill of Rights and the Federal Criminal Laws and Procedures we are well-versed in the perennial struggle between protecting Americans' privacy and enabling robust public safety This Committee is accustomed to addressing many of the significant legal questions arising from laws that govern surveillance and government access to communications particularly the Wiretap Act the Electronic Communications Privacy Act the Foreign Intelligence Surveillance Act and the Communications Assistance to Law Enforcement Act otherwise known as CALEA Today's hearing is a continuation of the Committee's work on encryption work that Congress is best suited to resolve As the hearing title indicates society has been walking a tightrope for generations in attempting to balance the security and privacy of Americans' communications with the needs of our law enforcement and intelligence agencies In fact the entire world now faces a similar predicament particularly as our commerce and communications bleed over international boundaries on a daily basis Encryption in securing data in motion and in storage is a valuable technological tool that enhances Americans' privacy protects our personal safety and national security and ensures the free flow of our Nation's commerce Nevertheless as encryption has increasingly become a ubiquitous technique to secure communications among consumers industry and governments a national debate has arisen concerning the positive and negative implications for public safety and national security This growing use of encryption presents new challenges for law enforcement seeking to obtain information during the course of its investigations and even more foundationally test the basic framework that our Nation has historically used to ensure a fair and impartial evaluation of legal process used to obtain evidence of a crime We must answer this question How do we deploy ever stronger more effective encryption without unduly preventing lawful access to communications of criminals and terrorists intent on doing us harm This now seems like a perennial question that has challenged us for years In fact over 15 years ago I led congressional efforts to ensure strong encryption technologies and to ensure that the government could not automatically demand a backdoor key to encryption technologies This enabled the U S encryption market 3 to thrive and produce effective encryption technologies for legitimate actors rather than see the market head completely overseas to companies that do not have to comply with basic protections However it is also true that this technology has been a devious tool of malefactors Here is where our concern lies Adoption of new communications technologies by those intending harm to the American people is outpacing law enforcement's technological capability to access those communications in legitimate criminal and national security investigations Following the December 15 terrorist attack in San Bernardino California investigators recovered a cell phone owned by the County government but used by one of the terrorists responsible for the attack After the FBI was unable to unlock the phone and recover its contents a Federal judge ordered Apple to provide reasonable technical assistance to assist law enforcement agents in obtaining access to the data on the device citing the All Writs Act as its authority to compel Apple has challenged the court order arguing that its encryption technology is necessary to protect its customers' communications security and privacy and raising both constitutional and statutory objections to the Magistrate's order This particular case has some very unique factors involved and as such may not be an ideal case upon which to set precedent And it is not the only case in which this issue is being litigated Just yesterday a magistrate judge in the Eastern District of New York ruled that the government cannot compel Apple to unlock an iPhone pursuant to the All Writs Act It is clear that these cases illustrate the competing interests at play in this dynamic policy question a question that is too complex to be left to the courts and must be answered by Congress Americans surely expect that their private communications are protected Similarly law enforcement's sworn duty is to ensure that public safety and national security are not jeopardized if possible solutions exist within their control This body as well holds its own constitutional prerogatives and duties Congress has a central role to ensure that technology advances so as to protect our privacy help keep us safe and prevent crime and terrorist attacks Congress must also continue to find new ways to bring to justice criminals and terrorists We must find a way for physical security not to be at odds with information security Law enforcement must be able to fight crime and keep us safe and this country's innovative companies must at the same time have the opportunity to offer secure services to keep their customers safe The question for Americans and lawmakers is not whether or not encryption is essential it is but instead whether law enforcement should be granted access to encrypted communications when enforcing the law and pursuing their objectives to keep our citizens safe I look forward to hearing from our distinguished witnesses today as the Committee continues its oversight of this real-life dilemma facing real people all over the globe 4 It's now my pleasure to recognize the Ranking Member of the Committee the gentleman from Michigan Mr Conyers for his opening statement Mr CONYERS Thank you Chairman Goodlatte Members of the Committee and our first and distinguished guest I want to associate myself with your comments about our jurisdiction It is not an accident that the House Judiciary Committee is the Committee of primary jurisdiction with respect to the legal architecture of government surveillance In times of heightened tension some of our colleagues will rush to do something anything to get out in front of an issue We welcome their voices in the debate but it is here in this Committee room that the House begins to make decisions about the tools and methods available to law enforcement I believe that it is important to say up front before we get into the details of the Apple case that strong encryption keeps us safe even as it protects our privacy Former National Security Agency Director Michael Hayden said only last week that America is more secure with unbreakable end-to-end encryption In this room just last Thursday former Secretary of Homeland Security Michael Chertoff testified that in his experience strong encryption laws help law enforcement more than it hinders any agency in any given case The National Security Council has concluded that the benefits to privacy civil liberties and cybersecurity gained from encryption outweigh the broader risks created by weakening encryption And Director Comey himself has put it very plainly universal strong encryption will protect all of us our innovation our private thoughts and so many other things of value from thieves of all kinds We will all have lock boxes in our lives that only we can open and in which we can store all that is valuable to us There are lots of good things about this Now for years despite what we know about the benefits of encryption the Department of Justice and the Federal Bureau of Investigation have urged this Committee to give them the authority to mandate that companies create backdoors into their secure products I have been reluctant to support this idea for a number of reasons The technical experts have warned us that it is impossible to intentionally introduce flaws into secure products often called backdoors that only law enforcement can exploit to the exclusion of terrorists and cyber criminals The tech companies have warned us that it would cost millions of dollars to implement and replace them at a competitive disadvantage around the world The national security experts have warned us that terrorists and other criminals will simply resort to other tools entirely outside the reach of our law enforcement and intelligence agencies And I accept that reasonable people can disagree with me on each of these points but what concerns me Mr Chairman is that in the middle of an ongoing congressional debate on this subject the Federal Bureau of Investigation would ask a Federal magistrate to give them the special access to secure products that this Committee this Congress and the Administration have so far refused to provide 5 Why has the government taken this step and forced this issue I suspect that part of the answer lies in an email obtained by The Washington Post and reported to the public last September In it a senior lawyer in the intelligence community writes that although the legislative environment toward encryption is very hostile today it could turn in the event of a terrorist attack or a criminal event where strong encryption can be shown to have hindered law enforcement He concluded that there is value in keeping our options open for such a situation I'm deeply concerned by this cynical mind-set and I would be deeply disappointed if it turns out that the government is found to be exploiting a national tragedy to pursue a change in the law I also have doubts about the wisdom of applying the All Writs Act enacted in 1789 codified in 1911 and last applied to a communications provider by the Supreme Court in 1977 to a profound question about privacy and modern computing in 2016 I fear that pursuing this serious and complex issue through the awkward use of an inept statute was not and is not the best course of action and I'm not alone in this view Yesterday in the Eastern District of New York a Federal judge denied a motion to order Apple to unlock an iPhone under circumstances similar to those in San Bernardino The court found that the All Writs Act as construed by the government would confer on the courts an overbroad authority to override individual autonomy However nothing in the government's argument suggests any principal limit on how far a court may go in requiring a person or company to violate the most deeply rooted values We could say the same about the FBI's request in California The government's assertion of power is without limiting principle and likely to have sweeping consequences whether or not we pretend that the request is limited to just this device or just this one case This Committee and not the courts is the appropriate place to consider those consequences even if the dialogue does not yield the results desired by some in the law enforcement community I'm grateful that we are having this conversation today back in the forum in which it belongs the House Judiciary Committee And so I thank the Chairman very much And I yield back Mr GOODLATTE Thank you Mr Conyers And without objection all other Members' opening statements will be made a part of the record We welcome our distinguished witness of today's first panel And if you would please rise I'll begin by swearing you in Do you swear that the testimony that you are about to give shall be the truth the whole truth and nothing but the truth so help you God Mr COMEY I do Mr GOODLATTE Thank you very much Please be seated I'll now begin by introducing our first distinguished witness today Director James Comey of the Federal Bureau of Investigation Director Comey began his career as an Assistant United States Attorney for both the Southern District of New York and the Eastern District of Virginia After the 9 11 terrorist attacks Director Comey returned to New York to become the United States Attorney for the Southern District of New York In 2003 he was ap- 6 pointed deputy attorney general under the United States Attorney General John Ashcroft Director Comey is a graduate of the College of William Mary and the University of Chicago Law School Director welcome Your entire written statement will be made a part of the record And I ask that you summarize your testimony in 5 minutes And we have the timing light that you're well familiar with on the table Again welcome We're pleased that you are here and you may begin your testimony TESTIMONY OF HONORABLE JAMES B COMEY DIRECTOR FEDERAL BUREAU OF INVESTIGATION Mr COMEY Thank you so much Mr Chairman Mr Conyers Thank you for hosting this conversation and for helping us all talk about an issue that I believe is the hardest issue I've confronted in government which is how to balance the privacy we so treasure that comes to us through the technology that we love and also achieve public safety which we also all very much treasure I worry a little bit that we've been talking past each other both folks in the government and folks in the private sector when it comes to this question of encryption which we in the government call ''going dark '' What I'd like to do is just take 3 or 4 minutes and try to frame how I think about it in a way I hope is fair fairminded and if it's not I hope you'll poke at me and tell me where you think it's not but these are the things I believe to be true First that the logic of encryption will bring us in the not-toodistant future to a place where all of our conversations and all of our papers and effects are entirely private that is where no one can listen to our conversations read our texts read our emails unless we say so and no one can look at our stuff read our documents read things we file away without our agreement That's the first thing I believe that the logic of encryption is taking us there The second thing I believe is as both you and Mr Conyers said there's a lot of good about this a lot of benefits to this All of us will be able to keep private and keep protected from thieves of all kinds the things that matter most to us our ideas our innovation our secret thoughts our hopes our dreams There is a lot to love about this We will all be able to have storage spaces in our life that nobody else can get into The third thing I believe is that there are many costs to this For the last two centuries public safety in this country has depended in large measure on the ability of law enforcement agents going to courts and obtaining warrants to look in storage areas or apartments or to listen with appropriate predication oversight to conversations That is the way in which law enforcement brings us public safety It is very very important and it's been part of the balance in ordered liberty that sometimes the people's stuff can be looked at but only with predication and only with oversight and approval by an independent judiciary The fourth thing I believe is that these two things are in tension in many contexts increasingly in our national security work and in law enforcement work generally across the country We see it obviously in ISIL's efforts to reach into this country and using mobile messaging apps that are end-to-end encrypted task people to 7 kill innocent people in the United States That is a huge feature of our national security work and a major impediment to our counterterrorism work because even with a court order what we get is unreadable to use a technical term it's gobbledygook Right We cannot decrypt that that which is covered by strong encryption We also see it in criminal work across the country We see very tragically last year in Baton Rouge where a pregnant woman 8 months pregnant was killed by somebody she opened the door to And her mom says she kept a diary but it's on her phone which is locked and so the case remains unsolved And most recently and most prominently as both Mr Conyers and the Chairman mentioned we see it in San Bernardino a case where two terrorists in the name of ISIL killed 14 people and wounded 22 others at an office gathering and left behind three phones two of which the cheaper models they smashed beyond use and the third was left locked In any investigation that is done competently the FBI would try to get access to that phone It's important that it's a live ongoing terrorism investigation but in any criminal investigation a competent investigator would try and use all lawful tools to get access to that device and that's what you see happening in San Bernardino The San Bernardino case is about that case It obviously highlights the broader issue and of course it will we looked upon by other judges and other litigants but it is about the case and trying to do a competent job of understanding is there somebody else And are there clues to what else might have gone on here That is our job The fifth thing I believe is that democracies resolve these kind of really hard questions through robust debate I think the FBI's job is very very limited We have two jobs The first is to investigate cases like San Bernardino and to use tools that are lawful and appropriate The second thing it's our job to tell the American people the tools you are counting on us to use to keep you safe are becoming less and less effective It is not our job to tell the American people how to resolve that problem The FBI is not some alien force imposed upon America from Mars We are owned by the American people we only use the tools that are given to us under the law And so our job is simply to tell people there is a problem Everybody should care about it everybody should want to understand if there are warrant-proof spaces in American life What does that mean And what are the costs of that and how do we think about that I don't know what the answer is It may be the American people through Congress and the courts decide it's too hard to solve or law enforcement can do its job well enough with strong encryption covering our communications and our papers and effects or that it's something that we have to find a way to fix to achieve a better balance I don't know My job is to try to offer thoughtful explanations about the tools the FBI has and to bring them to the attention of the American people and then answer questions about that So I'm very very grateful for this forum very very grateful for this conversation There are no demons in this debate The compa- 8 nies are not evil the government's not evil You have a whole lot of good people who see the world through different lenses who care about things all care about the same things in my view The companies care about public safety the FBI cares about innovation and privacy We devote our lives to try to stop people from stealing our innovation our secrets and hacking into our devices We care about the same things which should make this in a way an easier conversation which I very much look forward to Thank you The prepared statement of Mr Comey follows Empathttent Hf Ju ua STATEMENT OF JAMES B CDMEY DIRECTOR FEDERAL BUREAU OF INVESTIGATION BEFORE TH COMMITTEE ON TIIE JUDICIARY U S HOUSE OF REPRESENTATIVES AT A HEARING ENTITLED BALANCING SECURITY AND PRESENTED MARCH 1 2016 10 James B Comey Director Federal Bureau of Investigation Before the Committee on the Judiciary US House of Representatives At a Hearing Entitled Tightrope Balancing Americans Security and Privacy Presented March 1 2016 Good morning Chairman Goodlatte Ranking Member Conyers and members of the Committee Thank you for the opportunity to appear before you today to discuss the challenges to public safety and national security that have eroded our ability to obtain electronic information and evidence pursuant to a court order or warrant In recent years new methods of electronic communication have transformed our society most visibly by enabling ubiquitous digital communications and facilitating broad e commerce As such it is important for our global economy and our national security to have strong standards The development and robust adoption of strong is a key tool to secure commerce and trade safeguard private information promote free expression and association and strengthen cyber security We are on the frontlines of the ght against cyber crime and we know rst-hand the damage that can be caused by those who exploit vulnerable and insecure systems We support and encourage the use of secure networks to prevent cyber threats to our critical national infrastructure our intellectual property and our data so as to promote our overall safety American citizens care deeply about privacy and so Many companies have been responding to a market demand for products and services that protect the privacy and security of their customers This has generated positive innovation that has been crucial to the digital economy We too care about these important principles Indeed it is our obligation to uphold civil liberties including the right to privacy We have always respected the fundamental right ofpeople to engage in private communications regardless of the medium or technology Whether it is instant messages texts or old-fashioned letters citizens have the right to communicate with one another in private 11 without unauthorized government surveillance not simply because the Constitution demands it but because the free flow of information is vital to a thriving democracy The bene ts of our increasingly digital lives however have been accompanied by new dangers and we have been forced to consider how criminals and terrorists might use advances in technology to their advantage For example malicious actors can take advantage of the Internet to covertly plot violent robberies murders and kidnappings sex offenders can establish virtual communities to buy sell and encourage the creation ofnew depictions ot horritic sexual abuse of children and individuals organized criminal networks and nation-states can exploit weaknesses in our cyber defenses to steal our sensitive personal information Investigating and prosecuting these offenders is a core responsibility and priority of the Department of Justice As national security and criminal threats continue to evolve the Department has worked hard to stay ahead of changing threats and changing technology We must ensure both the fundamental right of people to engage in private communications as well as the protection ofthe public One ofthe bedrock principles upon which we rely to guide us is the principle ofjudicial authorization that if an independent judge nds reason to believe that certain private communications contain evidence ofa crime then the Government can conduct a limited search for that evidence For example by having a neutral arbiter the judge evaluate whether the Government s evidence satis es the appropriate standard we have been able to protect the public and safeguard citizens Constitutional rights The more we as a society rely on electronic devices to communicate and store information the more likely it is that information that was once found in ling cabinets letters and photo albums will now be stored only in electronic form We have seen case after case from homicides and kidnappings to drug traf cking nancial fraud and child exploitation where critical evidence came from smart phones computers and online communications When changes in technology hinder law enforcement s ability to exercise investigative tools and follow critical leads we may not be able to root out the child predators hiding in the shadows of the Internet or find and arrest violent criminals who are targeting our neighborhoods We may not be able to identify and stop terrorists who are using social media to recruit plan and execute an attack in our country We may not be able to recover critical information from a device that belongs to a victim who cannot provide us with the password especially when time is of the essence These are not just theoretical concerns We continue to identify individuals who seek to join the ranks of foreign ghters traveling in support of the Islamic State of Iraq and the Levant commonly known as ISIL and -2- 12 also homegrown violent extremists who may aspire to attack the United States from within These threats remain among the highest priorities for the FBI and the United States Government as a whole Of course is not the only technology terrorists and criminals use to further their ends Terrorist groups such as ISTL use the Internet to great effect With the widespread horizontal distribution of social media terrorists can spot assess recruit and radicalize vulnerable individuals of all ages in the United States either to travel or to conduct a homeland attack As a result foreign terrorist organizations now have direct access into the United States like never before Some of these conversations occur in publicly accessed social networking sites but others take place via private messaging platforms These direct messaging platforms are tremendously problematic when used by terrorist plotters We are seeing more and more cases where we believe signi cant evidence resides on a phone a tablet or a laptop evidence that may be the difference between an offender being convicted or acquitted lfwe cannot access this evidence it will have ongoing signi cant impacts on our ability to identify stop and prosecute these offenders We would like to emphasize that the Going Dark problem is at base one of technological choices and capability We are not asking to expand the Government s surveillance authority but rather we are asking to ensure that we can continue to obtain electronic information and evidence pursuant to the legal authority that Congress has provided to us to keep America safe The rules for the collection of the content of communications in order to protect public safety have been worked out by Congress and the courts over decades Our country is justi ably proud of the strong privacy protections established by the Constitution and by Congress and the FBI fully complies with those protections The core question is this Once all of the requirements and safeguards of the laws and the Constitution have been met are we comfortable with technical design decisions that result in barriers to obtaining evidence of a crime The debate so far has been a challenging and highly charged discussion but one that we believe is essential to have This includes a productive and meaningful dialogue on how as currently implemented poses real barriers to law enforcement s ability to seek information in speci c cases ofpossible national security threat Mr Chairman we believe that the challenges posed by the Going Dark problem are grave growing and extremely complex At the outset it is important to emphasize that we believe that there is no one-size- ts-all strategy that will ensure progress All involved must continue to ensure that citizens legitimate pn'vacy -3- 13 interests can be effectively secured including through robust technology and legal protections We must continue the current public debate about how best to ensure that privacy and security can co-exi st and reinforce each other and continue to consider all of the legitimate concerns at play including ensuring that law enforcement can keep us safe 14 Mr GOODLATTE Thank you Director Comey We'll now proceed under the 5-minute rule with questions for the witness and I'll begin by recognizing myself Director there has been quite a bit of debate on the government's reliance on the All Writs Act which most people had never heard of until the last week or so That is being used in this case to try to compel Apple to bypass the auto erase functions on the phone It has been characterized as an antiquated statute dating back to 1789 that was never intended to empower the courts to require a third party to develop new technology How do you respond to that characterization Has the FBI relied on the Act in the past to gain access to iPhones or other similar devices and is the Act limited to the circumstances in which Congress has already imposed a statutory duty on a third party to provide assistance Mr COMEY Thank you Mr Chairman I smile a little bit when I hear that because old doesn't mean bad at least I hope it doesn't because I'm rapidly approaching that point The Constitution is as old or older than the All Writs Act and I think that's still a pretty useful document It's a tool that I use I think there's some Members of the Committee who are former Federal prosecutors Every assistant U S Attorney knows it I used it when I started as an AUSA in 1987 It is an Act that Congress passed when the Constitution was a baby so there was a vehicle for judges to get their orders complied with And it's been used many many many times and interpreted by the courts many times including by the Supreme Court The cases at hand are simply about as I understand it what is the reach of the All Writs Act It's still good law but how far does it extend especially given how technology has changed And I think the courts are going to sort that out There was a decision yesterday in New York there will be decisions in California There will probably be lots of others because this is a problem law enforcement is seeing all over the country Mr GOODLATTE Let me ask you about that decision in New York because in its brief in the California case Apple argues that a provision of CALEA another Federal statute actually prohibits the magistrate from ordering it to design a means to override the auto erase functions on the phone Just yesterday a magistrate in New York upheld that argument Can you comment on that Mr COMEY Not in an intelligent way because I haven't read the decision out of New York I understand the basic contours of the argument I don't fully get it honestly because CALEA is about data in motion and this is about data at rest but I also think this is the kind of thing judges do They take acts of Congress and try to understand so what does it mean especially given changing circumstances So I expect it'll be bumpy there will be lots of lawyers paid for lots of hours of work but we will get to a place where we have the courts with an understanding of its reach Mr GOODLATTE Now if the FBI is successful in requiring Apple to unlock this phone that won't really be a one-time request correct Mr COMEY Well the issue of locked phones certainly not because it's become a---- 15 Mr GOODLATTE It will set a precedent for other requests from the Federal Bureau of Investigation and any other law enforcement agency to seek the same assistance in many many many other cases Mr COMEY Sure potentially because any decision of a court about a matter is potentially useful to other courts which is what a precedent is I happen to think having talked to experts there are technical limitations to how useful this particular San Bernardino technique will be given how the phones have changed but sure other courts other prosecutors other lawyers for companies will look to that for guidance or to try and distinguish it Mr GOODLATTE So that technology once developed which I presume they could destroy again but then will have to recreate hundreds of times how confident are you--whichever procedure Apple decided to pursue how confident are you that what you are requesting which is the creation effectively of a key a code how confident are you that will remain secure and allow all the other customers of Apple and when this is applied to other companies' technology as well how confident are you that it will not fall into the wrong hands and make everyone's communication devices less secure not more secure Mr COMEY First I've got to quibble a little bit with the premise of your question I hear people talk about keys or backdoors I actually don't see that this way I mean there are issues about backdoors This is about--there's already a door on that iPhone Essentially we're asking Apple take the vicious guard dog away let us try and pick the lock The later phones as I understand the 6 and after there aren't doors so there isn't going to be can you take the guard dog away and let us pick the lock But look I have a lot of faith and maybe I don't know them well enough in the company's ability to secure their information The iCloud for example is not encrypted right but I don't lie awake at night worrying about whether they're able to protect the contents of the iCloud They are very very good at protecting their information and their innovation So no thing is for certain but I think these folks are pros Mr GOODLATTE Thank you very much The Chair recognizes the Ranking Member Mr Conyers for his questions Mr CONYERS Thank you Chairman Goodlatte And welcome again to our forum here a very regular visitor to the Judiciary Committee Director Comey it's been suggested that Apple has no interest in helping law enforcement in any criminal case and that the company cares more about marketing than about investigating a terrorist attack In your view are companies like Apple generally cooperative when the FBI asks for assistance accompanied by appropriate legal process Did Apple assist with this particular investigation Mr COMEY I think in general all American companies and I can't think of an exception sitting here want to be helpful especially when it comes to public safety because they have families and children just as we do so that's the attitude we're met with And in this particular case as in many others Apple was helpful to us We had lots of good conversations about what we might be 16 able to do to get this device open and we got to place where they said for reasons that I don't question their motive we're not willing to go further and the government made a decision we still have an avenue to pursue with the judge We'll go to the judge But I don't question their motives Mr CONYERS All right Thank you I sense that you're still reluctant to speak about how your success in this case might set a precedent for future actions You indicated last week that this litigation may guide how other courts handle similar requests Could you elaborate on that please Mr COMEY Sure There's no--first of all let me say this I've been trying to explain to people this case in San Bernardino is about this case And the reason I've tried to say that so much publicly is I worry very much about the pain frankly to the victims in this case when they see this matter that's so important to them becoming a vehicle for a broader conversation So I want to make sure that everybody especially the FBI remains grounded in the fact this is about that case My wife has a great expression she uses to help me be a better person which is ''It's not about you Dear '' This case in San Bernardino is not about the FBI it's not about Apple it not about Congress it's not about anything other than trying to do a competent investigation in an ongoing active case That said of course any decision by a judge in any forum is going to be potentially precedential in some other forum not binding but guidance either positive or against The government lost the case yesterday in Brooklyn We could lose the case in San Bernardino and it will be used as precedent against the government That's just the way the law works which I happen to think is a good thing Mr CONYERS Thank you If you succeed in this case will the FBI return to the courts in future cases to demand that Apple and other private companies assist you in unlocking secure devices Mr COMEY Potentially yes If the All Writs Act is available to us and the relief under the All Writs Act as explained by the courts fits the powers of the statute of course Mr CONYERS And finally I think we can acknowledge then that this case will set some precedent and if you succeed you will have won the authority to access encrypted devices at least for now Given that you've asked us to provide you with that authority since taking your position at the Bureau and given that Congress has explicitly denied you that authority so far can you appreciate our frustration that this case appears to be little more than an end run around this Committee Mr COMEY I really can't Mr Conyers First of all I don't recall a time when I've asked for a particular legislative fix In fact the Administration's position has been they're not seeking legislation at this time But I also--we're investigating a horrific terrorist attack at San Bernardino There's a phone that's unlocked that belonged to one of the killers The All Writs Act that we've used since I was a boy we think is a reasonable argument to have the court use the All Writs Act to direct the company to open that phone That's what this is about If I didn't do that I ought to be fired honestly 17 I can also understand your frustration at the broader conversation because it goes way beyond this case This case will be resolved by the courts It does not solve the problem we're all here wrestling with Mr CONYERS I thank the Director and I yield back any unused time Thank you Mr Chairman Mr GOODLATTE Thank you And the Chair recognizes the gentleman from Ohio Mr Chabot for 5 minutes Mr CHABOT Thank you Mr Chairman I have a statement from the Application Developers Alliance here that I'd like to have included in the record Mr GOODLATTE Without objection it will be made a part of the record The information referred to follows 18 Application Developers Alliance Government Mandates to Weaken A Threat to Democracy Capitalism and Security u s House of Representatives Committee on the udiciary 'l he Tightrope Balancing Americaos' Security and Privacy March 1 2016 The Application Developers Alliance the Alliance welcomes and appreciates the opportunity to submit a statement for the Committee on the ludiciary's the Commitlee hearing titled The Tightrope Balancing Americans Security and Privacy Consumers want their personal data protected and businesses want their confidential data protected however cyberhaclters and data thieves are a constant threat to security For several years law enforcement and consumer protection of cials have helped grow the data protection marketplace by using enforcement tools to require consumer data he protected Responding appropriately to these marketplace and government forces digital industry developers regularly create tools to ensure that consumers' personal information and private communications remain private 'i h is statement serves to share with the Committee the challenges that software developers and our digital industry partners will face ifwe try to both protect privacy and prUVide privacy-breaching special access like backdoors and other methods to the government Technology experts have and will continue to address the technological impossibility oi creating software vulnerabilities that only the most well-intentioned can access This statement will address the resulting investment uncertainty consumer mistrust and business turbulence developers in small and medium-sized enterprises will face if forced to comply with demands similar to the court order handed down by Judge Sheri Pym When this hearing concludes the privacy vs security debate will continue The Alliance urges Congress in he reflective not reactive in its approach carefully Considering the consequu-nces poking holes in in today s digital marketplace Americans near and far rely on the security of their software to make purchases establish connections and store sensitive data Any hasty short-sighted decision will destroy the Internet-driven economy as we know it Since Ntt' Second Floor tl'asliinpinn lX 2mm 19 The Application Developers Alliance the Alliance was founded in Ianuary 2012 to support developers as entrepreneurs innovators and creators Alliance membership includes more than 150 companies and an additional 65 000 individuals On behalfof the app industry and our innovative entrepreneurial members the Committee should consider the following 1 A government mandate like the order handed down by Judge on February 16 2016 which would force Apple to deliberately compromise software security runs counter to American ideals sets a dangerous precedent for judges in other cases to point to and is a threat to consumers and the nation's best interests 2 The Federal Trade Commission State Attorneys General the FBI privacy advocates and consumers are correct protecting data while using it to build exciting new products and services is unquestionably good for businesses and consumers The entire software ecosystem is committed to both data innovation and data protection 3 Software developers compete in a global marketplace and the products they create are used around the world lfdevelopers are required to provide special access to the U S government then many other governments will require similar access and still other governments will cite this access as evidence of non-compliance with their national privacy laws Instead of enjoying global digital opportunities developers will be buffeted by con icting laws and false choices that pose significant financial and legal risk Developers and their customers will have to choose between compliance and market access 4 Privacy breaching special access makes software inherently less secure and less trustworthy By providing access to one or more governments the developer is creating a vulnerability that can be exploited by hackers thieves terrorists and other criminals Data protection prevents cybercrime and identity theft is the best data protection tool we have proponents are not weighing privacy and civil liberties above 20 security Instead we recognize that enhanced security and crime prevention techniques require strong data protection Today's Privacy vs Law Enforcement Debate is Not New Curbing Government Overreach since the Eighteenth Century Like many policy debates spawned by technological advances today s debate is like a new cover version of an old song America s privacy vs law enforcement debate began with the country s inception more than 200 years ago Knowing that privacy is a vital piece of any well- functioning democratic society our nation's Founding Fathers enshrined this ideal in our Constitution with the Fourth Amendment protection from unreasonable searches and seizures After two centuries some in the law enforcement community are still searching for cracks to exploit in our privacy foundation In today's global digital marketplace businesses and consumers are technologically savvy and smart about data protection Almost daily Americans see companies of all stripes and sizes hacked by cybercriminals and experience their own identity theft horrors In fact identity theft has been the top consumer complaint to the FTC for fifteen consecutive years Moreover revelations that some in the U S national security and law enforcement communities employed widespread untargeted bulk surveillance are still fresh in the minds ofconsumers and businesses Mass surveillance and its seemingly willful disdain for proper legal process has made citizens justifiably skeptical oflaw enforcement promises that unfettered access to digital networks will be utilized judiciously In contrast international governments require U S companies ensure that international consumer and business data is adequately protected including the U S government In 2016 Americans demand that their data remain secure and private is no longer a niche market Just 20 years ago there were few digital products and services and the market for was small and specialized Today our hardware contains a slew of innovative software and other features like messaging apps social media cameras video and voice recorders not to mention telephones Each of these innovative features may incorporate to ensure that private data remains private This privacy is also critical for business and 21 enterprise software to secure for example intellectual property financial information and health care data As a result of this global focus on trust and security many businesses are bundling with products and services and are working to improve those offerings Venture capitalists and institutional investors are betting heavily on secure trust based business models while computer scientists are building better systems that provide more privacy and security value developments that businesses and consumers concerned about cyberthieves and identity theft eagerly await Yet against this trend in favor of privacy and security the FBI and other law enforcement entities are attacking and seeking vulnerabilities in technologies that are protected by the Fourth Amendment Law enforcement has an obvious and substantial interest in prosecuting crime and protecting people but creating software vulnerabilities that will enable more identity theft and cause more consumer harm is not the right solution Today's Privacy vs Law Enforcement Debate Could Have Severe and Lasting Implications for the Digital Marketplace in light of the ubiquity of digital products and services and the magnitude of cybercrime and identity theft it is perplexing that the FBI and others in law enforcement are disparaging the very large substantial and determined market that it has encouraged Their efforts cut against prevailing wisdom and send confusing unhelpful mixed messages to developers and the publishers and enterprises they work with First government mandates to developers to build software vulnerabilities against their will and self-interest is alarming and sets a dangerous precedent These mandates such as the one ordered by Iudge Pym are re exive and exhibit a misunderstanding of what is and is not in consumers and the nation's -- best interest Apple CEO Tim Cook was correct to say his company would not comply with the order to create software to deliberately undermine the security ofan iPhone The software which does not currently exist could be stolen or replicated by bad actors to gain access to the private and sensitive information of innocent civilians Even more troubling is the thought 22 that others in the law enforcement community say a district attorney in New York could force a small enterprise to create similar software to gain access to a phone for a routine drug investigation In Apple's case the company may have the time finances and human capital to comply with the order should it choose to do so A small business however absolutely does not have the resources to comply with such mandates judge Pym s mandate would be nothing short of a nal blow for many small enterprises Additionally the government s mixed messages on the issue of could paralyze developers in their business cycle As developers investors and customers ask which government agency is in charge and whether data protection is really a government-approved value the marketplace can freeze up lfthis uncertainty continues for too long then lawyers will have to help developers make a difficult and perhaps decision which federal mandate should I follow and which one should I ignore Over the course of several years Virtually every government law enforcement and consumer protection agency has sung from the and data protection hymnal - The FTC advises consumers that is the key to keeping your personal information secure online and consistently requires app developers to use reasonable data security practices including to protect consumers information from hackers and data thieves - California Attorney General Kamala Harris recommends that developers transmit user data securely using and endorses legislation r'requiring to protect personal information in transit - In Voyage lawmakers have mandated the use of to protect personal information - In Massachusetts companies are strongly encouraged to and protect the data of individuals within the state Ifthe data is compromised companies would be subject to significant penalties - In breach notification laws now codify an enCIyption requirement A breach of the security system occurs when there is unauthorized access or acquisition of computerized data and an entity must use at least 128-bit 23 In a safe harbor provision exists for companies that protect data with would exempt covered entities that are subject to the breach notification requirements or to the Interagency Guidance issued pursuant to the Gramm-Leach-Bliley Act - President Obama s Review Group on Intelligence and Communications Technologies recommended that the U S Government promote national security by fully supporting and not undermining standards and generally available commercial and supporting efforts to encourage the greater use of technology for data in transit at rest in the cloud and in storage 0 And President Obama has personally called on industry to protect Americans' privacy and civil liberties and proclaimed himself a strong believer in strong there s no scenario in which we don t want really strong - Less than five years ago the FBI gjecomimegded organizations to data so the hacker can't read it Industry has already come up with the correct response Hardware manufacturers are selling Blackphones Companies such as Apple Google and Yahoo are embedding into their software and operating systems Messaging software like Yik Yak and SpiderOak are offering consumer solutions And industries like banking healthcare transportation and manufacturing are extremely focused on secure solutions Cloud storage companies like SurDoc are already taking these legislative cues and industry norms to heart by data in transit and at rest Many other companies especially small and medium sized enterprises continue to wait for further guidance and clarity from lawmakers before investing significant resources in this important technology Third nearly every software developer is pursuing international customers Thus it is important that Congress consider other countries' reactions to U S digital policy and how other countries policies could create challenges to American digital services or America s global interests By demanding unfettered access to digital products and services the FBI is putting American companies international opportunities at risk European and South American policymakers have virulently criticized U S Government collection of European citizens and leaders communications 24 data and many have demanded that U S companies provide assurances that their products and services are not susceptible to U S Government hacking Leading European policymakers have repeatedly urged more robust European consumer privacy laws stating that this is intended to harm U S digital services and advantage European services Mandating privacy- hreacbing special access increases the risk that international governments will cite U S companies non-compliance with privacy laws to justify banning American digital products and services from doing business in their country Compounding this problem are governments for example Russia China and some in South America that are choosing to only do business with companies based in their own country The Application Developers Alliance is a global organization and our European and American members are equally optimistic about our industry consumer adoption and economic opportunity None of our members anywhere in the world desire a trade war that divides the global Internet and global opportunity into smaller subsets of national markets But if Congress requires U S companies to provide special access for FBI or others it should anticipate European policymakers to respond emphatically Mandatory privacy-breaching special access will instigate trade wars and exacerbate international business challenges Special access like what the FBI is seeking diminishes consumer trust and creates challenges for developers and all digital businesses In addition to government risk developers will face marketplace challenges if forced to provide privacy breaching special access to law enforcement Our customers in the United States and abroad expect their communications to be private and secure when purchasing or using software Since our sector s inception developers have prioritized the security and handling of their customers' data because they know that good data stewardship is critical to business success Enabling governments to access data and ignoring future technological risks undermining the customer trust that developers worked hard to obtain Congress should also anticipate that governments worldwide will demand their own special access for their own security and law enforcement interests This will increase further the risk that consumer and business data could be compromised Larger companies might have the resources to build in the required special access and might have enough consumer trust to withstand the associated scrutiny but startups and resource-strapped small innovators will be challenged to find 25 resources to build multiple backdoors and will also have greater trust problems than established competitors Ofcourse all software not complying with other governments demands could easily be locked out of those markets What is more repressive regimes around the world might point to our own government's request for special access as leverage to curb privacy and free speech in their countries Software like social media is ushering in a radical new paradigm where anyone regardless of economic status creed or race can speak out and shed light on wrongdoings It would be unjust and immoral for the U S Government to give any leverage to repressive governments who do not share our democratic ideals Fourth from a technical standpoint any opening in security creates a vulnerable access point for hackers thieves and foreign governments to exploit While the FBI would have us believe that law enforcement alone will be privy to our sensitive data history demonstrates that bad actors will always be ahead of the curve and find an avenue to manipulate those openings As one well- regarded said you can't build a backdoor that only the good guys can walk through Currently consumers read about data breaches on an almost daily basis Though the market is demanding tighter security measures there are only two types of companies in the world those that have been breached and those that do not know they have been breached Consumers expect businesses to respond to these breaches and many have bolstered their security features oftentimes through Requiring companies to create special access undermines consumers' and businesses desires to secure data in storage in transit and across the supply chain End to end is the only way to secure user data from all outside forces while simultaneously giving consumers greater control of their data Forcing holes in software security harms startups and small innovators the most Many perhaps most of the small companies that are Alliance members lack the resources to create specific access point for the right people let alone the right people in select countries While the U S government is pleading to tech companies let us in they simultaneously warn companies to keep hackers and other countries out Because providing special access it technically challenging and 26 very expensive it is extremely difficult for large companies let alone startups to meet these conflicting demands Developers and startups already must overcome significant cost hurdles before products get to market and any regulatory inconsistency or redundancy is one burden too many in closing the Alliance urges Congress to remember that technologies are a market response to consumer demands business needs and U S and international government recommendations to protect consumer data When a developer builds a thriving business model around privacy security and consumer trust only to be told the FBI wants your products to be secure but not too secure this disrupts the marketplace It is bad for innovation had for business and bad for consumers It is only good for hackers and cyberthieves who prey on private consumer data and commercially sensitive data Americans correctly demand that their personal data is secure ust as importantly businesses deserve support from lawmakers to ensure that these protection technologies grow to become the industry norm in a stable marketplace The Alliance is happy to address any questions and looks forward to working with Congress on this very important issue 27 Mr CHABOT Thank you Mr Chairman And Director Comey like yourself I happen to be a graduate of the College of William Mary so I'm going to start off with a tough question Anything nice you'd like to say about the College of William Mary Mr COMEY I could tell there with glow coming from your seat That's explained by your being a member of the Tribe Best thing ever happened to me besides--I actually met my wife there That's the best thing that ever happened to me Second best is that I was there Mr CHABOT Excellent Yes it's a great place to go There are two members currently Ms Titus of Nevada is also a graduate Now this hearing is about electronic data security or as you describe it---- Mr GOODLATTE The Chair is happy to extend additional time to the gentleman for recognizing an important Virginia educational institution Mr CHABOT I appreciate the Chairman And as is already indicated this is about electronic data security or as you described it keeping our stuff online private So I'd like to ask you this and it may seem a little off topic but I don't think it is A few weeks back the FBI's general counsel James Baker acknowledged that the FBI is ''working on matters related to former Secretary of State Hillary Clinton's use of a private email server '' And then the White House press secretary Josh Earnest stated that ''some officials over there '' referring to the FBI ''had said that Hillary Clinton is not a target of this investigation and that it's not trending in that direction '' And the President then weighed in even though he apparently had never been briefed on the matter commenting that he didn't see any national security implications in Hillary's emails and obviously this is a matter of considerable import Is there anything that you can tell us as to when this matter might be wrapped up one way or the other Mr COMEY I can't Congressman As you know we don't talk about our investigations What I can assure you is that I am very close personally to that investigation to ensure that we have the resources we need including people and technology and that it's done the way the FBI tries to do all of its work independently competently and promptly That's our goal and I'm confident it's being done that way but I can't give you any more details beyond that Mr CHABOT I certainly understand and I appreciate that I thought you might say that but you can't blame me for trying Let me move on If Apple chose to comply with the government's demand maybe it does have the technical expertise and time and finances to create such a vulnerability so we can get in and get that information But let me ask you what about a small business I happen to be the Chairman of the House Small Business Committee Wouldn't such a mandate to say a small company a startup say with you know four or five six employees wouldn't that be a huge burden on a small business to have to comply with this sort of thing 28 Mr COMEY I think it might be and that's one of the factors that I understand the courts consider in passing on an All Writs Act request the burden to the private actor how much it would cost them how much time and effort And I think Apple's argument in this case is it would take us a ton of effort time and money to do it and so that's one of the reasons we shouldn't be compelled to do it So it's a consideration built into the judicial interpretations of the Act Mr CHABOT Thank you As the Chair of the Committee we'd ask you certainly to consider how this could affect--you know seven out of 10 new jobs created in the economy are small business folks half of the people employed in this country in the private sector are small businesses and I think we should always consider them Let me move on to something else In his testimony from our December 2015 hearing about H R 699 the Email Privacy Act Richard Littlehale the Assistant Special Agent in charge of Criminal Investigation Division of the Tennessee Bureau of Investigations voiced a frustration with the increasing technological capabilities of both criminals and noncriminals Rather than trying to arguably infringe on the Fourth Amendment rights of all Americans would it be possible to better train our law enforcement officers and equip them to keep up with this changing world that we're discussing today Mr COMEY Well there's no doubt that we have to continue to invest in training so that all of our folks are digitally literate and able to investigate in that way The problem we face here is all of our lives are on these devices which is why it's so important that they be private but that also means all of criminals' and pedophiles' and terrorists' lives are on these devices and if they can't--if they're warrant-proof even a judge can't order access to a device that is a big problem I don't care how good the cop is I don't care how good the agent is that is a big problem So that we can't quite train our way around Mr CHABOT Thank you very much I'm always almost out of time so let me concludes with go Tribe Thank you Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentleman from New York Mr Nadler for---- Mr NADLER Thank you Since we've gone a little far afield here let me do so again very briefly to point out that among others Thomas Jefferson who among his minor accomplishments was the Founder of the Democratic Party was also a graduate of William Mary Mr CHABOT True Mr NADLER Mr Comey Director Comey the attack--well we're all certainly very condemning of the terrorist attack in San Bernardino and we all--our hearts go out to the families and victims of that I commend the FBI for everything you've done to investigate this matter Now the two terrorists are dead and another coconspirator the neighbor is in jail You have used the USA Freedom Act to track their phone calls and invest--which this Committee wrote last year--to track their phone calls and investigate everyone they ever spoke to on that phone The FBI has done a great job already Now let me ask a few questions 29 It's my understanding that the--that we have found that the attack in San Bernardino was not in any way planned or coordinated by ISIS Is that correct It may have been inspired by but not directed or planned by Mr COMEY Right So far as we know correct Mr NADLER And have you eliminated any connection between the two suspects and any overseas terrorist organization Mr COMEY Eliminated any We have not---- Mr NADLER Have you seen any evidence of any is a better way of putting it Mr COMEY We have not seen any evidence of that Mr NADLER Okay Now given those facts--so there's no evidence of any coordination with anybody else that's the two homegrown self-motivated perhaps inspired-by-ISIS terrorists Now the investigators seized the iPhone in question on December 3 the FBI reached out to Apple for assistance on December 5 Apple started providing the FBI with information with account information I gather the same day but then the next day on December 6 at the instruction of the FBI San Bernardino County changed the password to the iCloud account associated with that device They did so without consulting Apple at the instruction or suggestion of the FBI And changing that password foreclosed the possibility of an automatic backup that would allowed Apple to provide you with this information without bypassing its own security and thus necessitating in the first place the application to the court that you made and that we're discussing today In other words if the FBI hadn't instructed San Bernardino County to change the password to the iCloud account all of this would have been unnecessary and you would have had that information So my question is why did the FBI do that Mr COMEY I have to--first of all I want to choose my words very very carefully I said there is no evidence of direction from overseas terrorist organizations This is a live investigation I can't say much more beyond that This investigation is not over and I worry that embedded in your question was--and that you understood me to be saying that Second I do think as I understand it from the experts there was a mistake made in that 24 hours after the attack where the County at the FBI's request took steps that made it hard--impossible later to cause the phone to back up again to the iCloud The experts have told me I'd still be sitting here I was going to say unfortunately not unfortunately fortunately I'm glad I'm here but we would still be in litigation because the experts tell me there's no way we would have gotten everything off the phone from a backup I have to take them at their word But that part of your premise of your question is accurate Mr NADLER Okay So the second part of my question is it wasn't until almost 50 days later on January 22 when you served the warrant Given the allegedly critical nature of this information why did it take the FBI 50 days to go to court Mr COMEY I think there were a whole lot of conversations going on in that interim with companies with other parts of the government with other resources to figure out if there was a way to do it short of having to go to court 30 Mr NADLER Okay Thank you Now can you offer a specific case because I do think we all understand that it's not just a specific case it will have widespread implications in law and however the courts resolve this which is essentially a statutory interpretation case the buck is going to stop here at some point we're going to be asked to change the law So encryption software is free open source and widely available If Congress were to pass a law forcing U S companies to provide law enforcement with access to encrypted systems would that law stop bad actors from using their own encryption Mr COMEY It would not Mr NADLER It would not So the bad actors would just get around it Mr COMEY Sure Encryption's always been available to bad actors nation states---- Mr NADLER So if we were to pass a law saying that Apple and whoever else had to put backdoors or whatever you want to call them into their systems the bad actors that were--and with all the appropriate--with all the--not appropriate all the concomitant surrenders of privacy et cetera et cetera the bad actors could easily get around that by making their own encryption systems Mr COMEY The reason I'm hesitating is I think we're mixing together two things data in motion and data at rest The bad guys couldn't make their own phones but the bad guys could always try and find a device that was strongly encrypted The big change here happened in the fall of 2014 when the company split from available encryption to default and that's---- Mr NADLER Yeah But couldn't---- Mr COMEY continuing That's the shadow of going dark and---- Mr NADLER But couldn't foreign companies and bad actors generally do that whatever we said Mr COMEY Sure Potentially people could say I love this American device but because I worry about a judge ordering access to it I'm going to buy this phone from a Nordic country that's different in some way That could happen I have a hard time seeing it happen a lot but it could happen Mr NADLER My time has expired Thank you Mr ISSA Mr Chairman I'd like to ask unanimous consent some documents be placed in the record at this time I'd like to ask unanimous consent that Patent Number 0240732 patent---- Mr GOODLATTE Without objection Mr ISSA Thank you Additionally 27353 another patent additionally a copy of the USA Today entitled ''Ex-NSA Chief Backs Apple On iPhone '' additionally from Science and Technology an article that says ''Department of Homeland Security awards $2 2 million to Malibu California company for mobile security research and in other words an encryption-proof unbreakable phone '' additionally and lastly the article in Politico today on the New York judge's ruling in favor of Apple Mr GOODLATTE Without objection they will all be made a part of the record The information referred to follows 31 ode V Su pplementary B'gard or Ve ioles 0 240332 A 444 zgg I $1449 f In van-w f n syli nomnuaenwuzn m uma ruu c 19 United States 12 Patent Application Publication 10 Pub No US 2015 0027353 A1 Sa gebiel 32 118 2015002735 A1 43 Pub Date Jan 29 2015 54 71 72 21 22 60 ACTIVE SA FE Applicant Tchatc Advanced Armor USA Inc Newark 011 U S Inventor Erick James Sagehiel Castroville TX US Appl No 14 444 449 Filed Jul 28 2014 Related US Application Data Provisional application No 611858324 iled on Jul 26 2013 Publication Classi cation Int Cl E050 1 10 2006 01 05G 1 14 200601 its 52 U S Cl CPC EOSG 1 14 2013 01 USPC 109 24 109123 109 36 109 138 57 ABSTRACT Active containers and related systems con gured for destroy- ing container contents may include safes with a hardened storage space a content destruction clement con gured to destroy material contained in the storage space and an arm- ing device The content destruction e1ement may include for example an incendiary an explosive a liquid a gas a magnet and or an electrical source The arming device may be con gured to arm and initiate the content destruction element using various modes which may be based on different arming criteria and ring criteria 'lhe arming criteria andfor the ring criteria may include movement of the container accel- eration penetration of the container elapsed time an signal as we11 as an explicit ring signal The container may include various sensors to assist in making relevant determi- nations such as apositioning system an accelerometer a heat sensor a pressure sensor etc 33 chief backs Apple on iPhone back doors 3 Singer WE If Retired four-star general Michael Hayden who as director ofihe NSAinelalled and still defe nde the controversial surveillance program to collect telephone metadele on millions dIhhei'icam entre- he opposes proposals to force Fpplie and other tech companies to install 'back doors In drgital devices to help law enforoement In an emerging court battle over aooess to information on the iP'hone cmned by one ol'lhe Sari Bemard'l'io slledtere Hayden says the burden of proof is on Apple' to show that limited Cooperation with Photo- Jupm cm uteri imrestigatore would open the door to broader prnractr invasions Apple is being asked not to informalion on the smartphone but rather to the operating system so Investigators court an endless eerieso'l passwords to unlock it In this sped' c case I'm trending toward the but I've got to tell you in general I oppose the government's effort personified by Director Corney Hayden told Dowr load in an interview about his memoir_ Hat-ring to the Edge American inlett'gence in the Age of Terror Jim would like a back door available lo irnen'can law enforcement in all devices globally And frankle I think on balance that actuer herme American satiety and security even though it might make- Jim's gab a bit easier in some specific circumstances In a statement releasad late Sunday COITIBT said the Sari Bernardino litigation isn t about trying to set a preoed'en l or sand arr l kind at mesrsage it as- about H12 Victims and r istioe Fourteen people sla ughtered arid many more had their lures and bodies ruined it crime them a thorough and professional investigation underlain Thet swhat this is The American people should expect nothing less from the gQi-gl gngg migng Wig ne-esrr-Qlters TODAY steam Lot-251 Mir - ripplc etcf Sen Bernard nowhone I a-jJEkEIIE-Ilrll it -H' Hayden 1'0 brings unparalleled credentrele to the roiling debate The retired Air Force general lathe only person ever 10 head path the super-secret Nat-anal Secuin Agency and the Dermal Intelligenoe uency In he M-page memuii published Tuesday he Penguin Frees he recalls being at the Haitian Sept 11 2001 when Al anda attacked the World Trade Center another Pentagon He led the CIA-during restorms aver Its detention and interrogation ot terror suspecte and wl'ie targeted killings by drones grew The title of the boot on the jacket even the words bleed to the edge refers to his oondusion that inlielligenoe officials should pla I so close to Ihe Ine that the r get ehelk duet on Iheir cleats 'lt e unapologetic he ears of his account ol'the dec-eiorI-me king behind drone attacks the use of weierhoerding and ether Interrogation techniques the intelligence failures In the lead-up to the Imraeipn of had and the culture eanerice e espionage agencies ll that mature his-damnation that pll'traty concerns shodd trump seam-1y demands on this mm pulting hurt on the side at libertarian Sen Rand Pad and fug rue HSAcontraotor Edward Snowden -- especially powerful Afederal Diarict Court pdge l'l Calrlornia la week ordered dipole to bypass securityI barriers on the iP l'ione5i lhat had been used by Eyed Rizwan Famok who with his wife killed 1-1- people at an o 'ice hell-dayr party in December In a de arl public letter Apple CED Tim Cook announced Ihe company wouldn t eel-noti- ople argues the tool inwlabl y would be ueed not just In one isolated one but reraierritridliiI 34 The showdown has reimogorated proposals for Congress to pass a law that would requu a tech companies iriduding Appte Facebook and Google to protrlde a back door' in digital devices so law-enforcemenl o inals could access information dunng investigations The debate has become an issue In the presidential campaign Republican fromrunner Donald Trump has called for a bays-all of ople produols unless the company cooperates-with the San Bernstein-a invest-galore Lo-ctr I used to run the use Hayden told USA TODAY's weakly video newsmaitar sores 'Bacit doors are good Please please Lord put back doors because I and a whole bunch of olher talented security services around the wortd even though the back door was no intended for me Ihat back door will make it easier tor me lo do irimel I want to do_ which re tn penelrata Bul when you Step back and loos at the whole question of merican security and large we are or tum-oi Wr- m safer more secure nation without back doors he says Vulth them 'a lot at other people would tater - thr- advantage of '1 - ironing-rm or Tm Mic Win Hess - Hayden was inilenriewed in the Irving room of his home in the norlhern aLburbs not far rorn the BIA decorated with lurnlure artwork and memenlos from his torei-gn poslings and long career' Earned chests Korea religious icons from Bulgaria a small cil pain1ing of an outdoor scene presented as a gi by the Romanian intelligence service Alrim than with a cost Military bearing Hayden is walching who some concern the debate over rial-anal security in the 2016 campaign Democratic president Bill Clinton apps-rites him to head the NEH Republican presdem George Bush app-crates him to head the BIA tl-Iayderi was an adviser to and supporter ol form er Florida governor Jeb Bush who suspended his candidacy Saturday ll takes a comp-lax process and tries to capture it to sum Hitting about the length ol'a bumper sticker he says 'Somo candidates say we should use waierboarding and a lot more because lhey deserve it a reference to Trump Well we neyer used any lechnique against anyone because they deserved it The things we did were fan-is rd-lcnl-ting to learn proremknerioa The same thing with regard to cerium-bombing a lactic endorsed by Texas Sen Teri Cruz against the self-proclaimed Islamic Slate Carpet- bombing is inherently Immoral and unworthy of a nation like ourselves and he can - Trump's proposal In ban lemporarily all Muslimsi rom entering the Union Stales at-souter not help-M incredibly harmlur in a halite against terrori sm in which the biggest threat Don tes from sell-radnmlized indwiduals living in United Slates ll goes to the chara Bier of us as a nahon he says 'We are a welcoming society h assimilate immigrants far better lhan European friends And it shows up it shows up In the fact lhat mos of these horrific events don't happen here They happen there Iillihy woLid you pul al risk a war-Winning aduantage I it you are a welcoming society Mywould you out ms at rel by that land of pronouncement That actually rs Incrediny harmlul lo Merton safety ji ni saying that lhal would be your policy Hayden aim is caustic when haired abbot peter-hat 1ichme breaches from the decision by Democrali candidate Hisary Gin-itch Io exclusively use of a private email senor ird'ien she was secretory of State Once you'ye sol it up lhis way nobody has lo be stwid lazy unmtolgent it's gone had he says r'ou'tre going to and up with information on this oriva1e sen-er tl'at iust shouldn't be ll'iere let alone all the questions about presenling government records Those oori-oems aren't allayed even If no classi ed material was sent or received at her priyale address he says I How much energy-would lehpend i1'l were still director of the National Seourity Agency and someone told me I could gel access to the unclassified email server of Russian Formng Sergei Lavrw to mow heaven and Earth lo do that And hare you've got these private animate conversations by a senior o iCial oi lha LLS government sitting out there l'l what i would call an unprotected ermronmeri 35 The disclosure Ihat Clinan had used the private server was a last year In reporters and others Does he assume that Intergn intelligence agencies long hard known abou il and targeted would lose all respect for a whole bunch o1 Ioretgn inbeiligentie agencies i'ttheir' weren'l eitlrig back paging through the emaila he replied EHESAND SECURITY Hayden has had a repulauonr as a plain-spoken man and he'a no longer mnetraned by the senior nth-see he held In the Air Fame the NSF and Ihe CIA Among his comment in his interview with Capital Download On whetherrlinierloans are safer than theywole on BT11 The danger level has gone down steadily tbuti here's Ihe tied story- I tnirllc einoe 2012 1hai Iran has been going one up It's the growth of ISIS Il'e Jihad 2 0 ooan at us it very tough mien-it enemy Irving rn a sale haven the size at a good-sized American state not rn the middle of nowhere IiiteAlghanietan but in the middle o the Middle Easl On lhe biggeal lhreat ahead forlhe United States For the things that can go bump in the night tonight and realy affect lpul terrorism and cyber attack Go out three four ve years in the future here begun to wotrv about stolen I call ambitious brittle and nuclear Iran Peluela n North Korea even ihe Rmm Ten years in Ihe tutwe the challenge rs Chm he said 'I'iwe don't get our relalinnahip with the emerging People's Republic of Chma right that is something that could lead to global calasllophe Clothe possibility or a plea bargain forl'ugilltre lien contractor ear-am SMde the American preeidenl who thinks he earl be lenient on Hr Wilden and believe that would be cost-Free amongst the people on which he wil continue to rely on for the eeiety of the nail-on On I lesson learned from leaks tint exposed the medal ootllotlon ot Amorloans' phone records 'When it oomes out that way the natural rnerioan insiinot isto take that merryI and run lo the darliteat earner olihe loom Ifwe had been more open about what we had been doing it would have oountma-Dted that a bit For want of a better word it wo d have immunized our society against what I viewed as an overreectiun to the revelation On today's challenge tor lritoltigenoe 1g melee 'To be good American eepronege has to be pawertu and it has in be secretive inside a political culture that more and more dish-Lists two lhii'iga power and seuacy' On balancing security and liberty 'WhaI we're to do here ia what re-e people and this free people have done alone the inception ol the republic which isto balance lwo things both of which are virmeil our security and our privacy There are no answers to that We debate lhern continuouer based on the totality oi circumotanoes in which we nd oureetves The poi-rt make to our This is not a struggle between the forces a light and the rotoes ot darkness This in good people trying to lino the right halal-nos 0n compelgn or Job Bust-i whomhe had endowed mgglod 'Bemuse a signi cant portion ollhe Arnencen electorate in both parties are right now more iriilereetted what iwould cell a primal scream M're actuallyI getting a very robust primal weem out of a candidate in each party right now lunderalend Ihe primal scream People are frustrated But you can t govern with Primal scream Read or Sh re story 36 Security m Sif mrds iMmMalImCallfCampany inc -- DHS 381T Awards $2 2 Million to Malibu California Company for Mobile Security Research $191019 ROW-1M DIN Fer hum-malt chase DHS Sewnucr E- Todmohg-r H853 Conrad The DI PIDMDIIHIDI ssh ID-di' annD-unccu 1 $2 2 Socunn- Ir arcr' Maud Ir mum at mart nial-1 'Ivmrd usa Icsull DI HI 500' 5 by S- Dn l'dh'l was rna r ID HRL LG from ID wurIc Dn mob-In mDMo dcan 'Mob'ie Plan's new nun-cal tools our Buld 5H5 Llldul Swlelsw hr Sum-nae all-II DI Inalluu and uwls scuu my uu'rkwsisur SGT pI-Ollrr' TheMT S- Iwand Isa Mich Ilr'ls'ID anew-Ilka a oplicn DI secure IDI prien'kl Thu MDG pla' l i RED In mrbIIDd-ulcc illwumcnlalion din-It lay-cl ablls 512cm rm leseuluh ll Illsn'u IDuh 1 behawDr-Uu sud unmer- cunan IIu'Jllces HRL Luvadluueu' upurDuch ins-bum on 1 11mm- Illmirnd' DI user bullurIDIs In Dursrumn Ira pIDl'rJu snwn mlemu unwnm calh wurnin-g wpnrun laesull a 'Iis dwuluplnenl'mll b-u af mnruglng power ef ciency In Iawilh Illaerln'nunl EWS L'Iussll'mmrl ID llse lIdllm MIL-lung quw dew-ID Bu Imin Ins than IuIsa uIeIl pl'l Hark uo In and The Enemy DH 1 Eluuk' 'G'x-cn Illc ybcl Inc'mn non IrruDI'Inr-l secure for our Scrum M35 Pm-gnrn Marl-19m 'Wm landowner-1lm Ia l I'Ih'l pman mm I-mms nl mnnik Mats an DI mat The urn-wt unable S-ETIKI wequ Depurlmunl gmurmrhem ln 1 unleulrlsIn-g DrgarIInI-Dns ID 1 so qu and seamless meIIDcxpercnse For lr- D dun-uh 5 1 h 521-5 ij GO - if 1 3 37 POLITICO A protester holds up an lPhone that reads No Entry outside of the the Apple store on 5th Avenue on Feb 23 2016 in New York City Gettyr Federal judge Apple doesn't have to unlock iPhune in N Y case The ruling is likely to bolster Apple's resistance By JOSH GERSTEIN Ioeresns 05 55 PM EST A federal magistrate in Brooklyn New York has denied the government s application to force Apple to help law enforcement gain access to an iPhone belonging to a man who pled guilty in a meth conspiracY The ruling is likely to bolster Apple's resistance in California to a separate FBI request that the company help investigators circumvent security features on an iPhone used by one ofthe terrorists in the San Bernardino shootings 38 In the New York case U S Magistrate Judge James Orenstein rejected federal prosecutors claim that a 1789 law authorizes the government to obtain a court order seeking to bypass a passcode lock on an Apple phone Nothing in the government's arguments suggests any principled limit on how far a court may go in requiring a person or company to violate the most deeply-rooted values to provide assistance to the government the court deems necessary Orenstein wrote Apple originally cooperated with prosecutors in the Brooklyn case but reversed course after Drenstein asked the co mpany's lawyers to weigh in with a formal legal position 39 Mr ISSA Thank you Mr Chairman Am I recognized Mr GOODLATTE The gentleman is recognized for 5 minutes Mr ISSA Thank you Mr Chairman Justice Scalia said it's best--said best what I'm going to quote almost 30 years ago in Arizona v Hicks in which he said ''There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of all of us '' I think that stands as a viewpoint that I have to balance when asking you questions As I understand the case and there's a lot of very brilliant lawyers and experienced people that know about All Writs Act but what I understand is that you in the case of Apple in California are demanding through a court order that Apple invent something fair to say that they have to create something And if that's true then my first question to you is the FBI is the premier law enforcement organization with laboratories that are second to none in the world Are you testifying today that you and or contractors that you employ could not achieve this without demanding an unwilling partner do it Mr COMEY Correct Mr ISSA And you do so because you have researched this extensively Mr COMEY Yes We've worked very very hard on this We're never going to give up but we've worked---- Mr ISSA Did you receive the source code from Apple Did you demand the source code Mr COMEY Did we ask Apple for their source code I don't--not that I'm aware of Mr ISSA Okay So you couldn't actually hand a software person the source code and say can you modify this to do what we want if you didn't have the source code So who did you go to if you can tell us that you consider an expert on writing source code changes that you want Apple to do for you You want them to invent it but who did you go to Mr COMEY I'm not sure I'm following the question Mr ISSA Well you know I'm going to assume that the burden of Apple is X but before you get to the burden of Apple doing something it doesn't want to do because it's not in its economic best interests and they've said that they have real ethical beliefs that you're asking them to do something wrong sort of their moral fiber but you are asking them to do something and there's a burden no question at all there's a burden they have to invent it And I'm asking you have you fully viewed the burden to the government We have--we spend $4 2 trillion every year You have a multi-billion dollar budget Is the burden so high on you that you could not defeat this product either through getting the source code and changing it or some other means Are you testifying to that Mr COMEY I see We wouldn't be litigating if we could We have engaged all parts of the U S Government to see does anybody that has a way short of asking Apple to do it with a 5C running IOS 9 to do this and we do not 40 Mr ISSA Okay Well let's go through the 5C running IOS 9 Does the 5C have a nonvolatile memory in which all of the encrypted data and the selection switches for the phone settings are all located in that encrypted data Mr COMEY I don't know Mr ISSA Well it does Mr COMEY Okay Mr ISSA And take my word for it for now So that means that you can in fact remove from the phone all of its memory all of its nonvolatile memory its disk drive if you will and set it over here and have a true copy of it that you could conduct infinite number of attacks on Let's assume that you can make an infinite number of copies once you make one copy right Mr COMEY I have no idea Mr ISSA Well let's go through what you asked And I'm doing this because I came out of the security business and this befuddles me that you haven't looked at the source code and you don't really understand the disk drive at least to answer my rather you know dumb questions if you will If there's only a memory and that memory that nonvolatile memory sits here and there's a chip and the chip does have an encryption code that was burned into it and you can make 10 000 copies of this chip this nonvolatile memory hard drive then you can perform as many attacks as you want on it Now you've asked specifically Apple to defeat the finger code so you can attack it automatically so you don't have to punch in codes You've asked them to eliminate the ten and destroy but you haven't as far as I know asked them okay if we make 1 000 copies or 2 000 copies of this and we put it with the chip and we run five tries 00 through 04 and then throw that image away and put another one in and do that 2 000 times won't we have tried with a nonchanging chip and an encryption code that is duplicated 2 000 times won't we have tried all 10 000 possible combinations in a matter of hours If you haven't asked that question the question is how can you come before this Committee and before a Federal judge and demand that somebody else invent something if you can't answer the questions that your people have tried this Mr COMEY First thing I'm the Director of the FBI If I could answer that question there would be something dysfunctional in my leadership Mr ISSA No I only asked if your people had done these things I didn't ask you if that would work I don't know if that work I asked you who did you go to did you get the source code Have you asked these questions because you're expecting somebody to obey an order to do something they don't want to do and you haven't even figured out whether you could do it yourself You just told us well we can't do it but you didn't ask for the source code and you didn't ask the questions I asked here today and I'm just a--I'm just a guy that---- Mr GOODLATTE The time of the gentleman has expired and the Director is permitted to answer the question Mr ISSA Thank you Mr Chairman 41 Mr COMEY I did not ask the questions you're asking me here today and I'm not sure I fully even understand the questions I have reasonable confidence in fact I have high confidence that all elements of the U S Government have focused on this problem and have had great conversations with Apple Apple has never suggested to us that there's another way to do it other than what they've been asked to do in the All Writs Act It could be when the Apple representative testifies you'll ask him and we'll have some great breakthrough but I don't think so But I'm totally open to suggestions Lots of people have emailed ideas I've heard about mirroring and maybe this is what you're talking about We haven't figured it out but I'm hoping my folks are watching this and if you've said something that makes good sense to them we'll jump on it and we'll let you know Mr ISSA Thank you Mr GOODLATTE The Chair recognizes the gentlewoman from California Ms Lofgren for 5 minutes Ms LOFGREN Thank you Mr Chairman And thank you Director Comey for your service to our country and your efforts to keep us safe It is appreciated by every member of this Committee And along with your entire agency we do value your service and appreciate it I remember in law school the phrase ''bad cases make bad law '' I'm sure we all heard that and I think this might be a prime example of that rule We can't think of anything worse than what happened in San Bernardino two terrorists murdering innocent people It's outrageous It sickens us and it sickens the country But the question really has to be what is the rule of law here Where are we going with this And as I was hearing your opening statement talking about a world where everything is private it may be that the alternative is a world where nothing is private because once you have holes in encryption the rule is it's not a question of if but when those holes will be exploited and everything that you thought was protected will be revealed Now the United States law often tends to set international norms especially when it comes to technology policy And in fact China removed provisions that required backdoors in its counterterrorism law passed in December because of the strong international norm against creating cyber weaknesses but last night I heard a report that the ambassadors from America the United States Canada Germany and Japan sent a joint letter to China because they're now thinking about putting a hole in encryption in their new policy Did you think about the implication for foreign policy what China might do when you filed the motion in San Bernardino or was that not part of the equation Mr COMEY Yeah I don't think--I don't remember thinking about it in the context of this particular investigation but I think about it a whole lot broadly which is one of the things that makes it so hard There are undoubtedly international implications actually I think less to the device encryption question and more to the data in motion question but yeah I have no doubt that there's international implications I don't have good visibility into what the 42 Chinese require from people who sell devices in their country I know it's an important topic Ms LOFGREN Before I forget Mr Chairman I'd like to ask unanimous consent to put in the record an op-ed that was printed in The Los Angeles Times today authored by myself and my colleague Mr Issa on this subject Mr GOODLATTE How could anyone object to that being a part of the record The information referred to follows 43 312016 Gwarrnm 'boci-ccbar' aucqu a Untb ware intercom inadunesecwty - UR Times Opinion Op Ed 0p-Ed Government 'baekdoor' access to a single iPhone would undo years of progress in online security tr 1 t I I - #0an BREAK our People rally in fro ml of an Ap ole Store in San Francisco on Feb 23 to show theil support fat the company in he legal bat e wit the FBI John G Mabanglo n' lift 2m Lufgren and Darrell 155 23 3 -3 33 hile the media has reported on nearly every minutia of the ongoing litigation hetween Apple and the FBI we seem to have lost sight of the bigger pictum This is not just about gox-emmem investigators gaining access 0 the iPhone used by Rizwan Forook one of the attackers who killed 14 people in Sam Bernandino late last year It s not just about one technology eompany s right to conduct business as it sees or even the rights of all technology colliponies It s about Americans broader rig to privacy hlth-Www Mime-seaming 1 3 44 312015 Gus-army backdoor aoceselo a SFQGIMWU mye r - Ulva in - LA Times The FBI says its wants a backdoor for just one phone but it's clearly trying to set a precedent Allowing the government backdoor access to just this one phone would undo years of technological advances in onlinc security The Department of Justice is reportedly seeking court orders to make Apple unlock and extract data from as many as 12 other phones around the country which sources familiar with the cases say weren't even used in acts of terrorism Manhattan Dist Atty Cyrus 1lr'ance Jr says he has as many as $5 iPlrones that he would absolutely try to force Apple to break into if the government wins its San Bernardino ease The Los Angeles Times also reports that the Los Angeles Police and Sherist departments alone have hundreds of phones they'd like opened too The FBI says its wants a backdoor for just one phone but it's clearly trying to set a precedent Both the FBI and the DOJ want law enforcement agents to have the legal authority' and the technical capability to access any phone they Suspect to contain information of value Moreover although the focus for the moment is on smartph ones the govcmment's desire for hac kdoor technology r could easin extend to every product that connects to the Internet and every computerized system including the Systems that protect our money cars identities televisions and increasingly the systems that run our thermostats refrigerators and even our The proper place for this argument is not a courtroom in California but in Congress where there can be public debate and full consideration Indeed the issue of mandating technologicer backdoors for government investigator's is already a topic of vigorous discussion among the people's elected representatites in Washington The emerging consensus is that a backdoor intended for use by law enforcement will inevitably eventually be exploited by criminals Creating this vulnerability would thus endanger Americans giving not only government agents but also hackers access to our most intimate and carefully guarded personal information Instead ot'weakening privacy protections lawmakers should support legislation like that which passed the tense with overwhelming support on three separate occasions prohibiting government- mandated haekdoors that intentionally undermine and underCut the development and deploirment of strong data security technologies http mw Imrmesoomr opr nm- opredlla-oe-Iorgenussa-n seam 3'3 45 meme Gwamm 'mcm-or' memo a rge-Hmmumyws ntprogrm In mlmesecurlty - U'l Tums Zoe Lofgren is the senior Damocmt on the Home Judiciary Subcommittee un Immig m un and Border Seem- y Isa-a is the Republican chairman nfthe House Judiciary Subcommittee on Cam-ts Intellectual Pmperty and the Internet Follow the Dphlion section on Twitter @latimcsupinion and Faecbook Copyright @2016 Les Angelee Times article ls related to Opinion Commentary FBI Zoe Lotgren Apple iPhone Darrell lesa Personal Data Collection lmlmeseamop 3'3 46 Ms LOFGREN I just note that in terms of the--you mentioned that the code at Apple that they've done a pretty good job of protecting their code and you didn't remember anything getting out loose but I do think you know if you take a look for example at the situation with Juniper Networks where they had--their job is cybersecurity really and they felt that they had strong encryption and yet there was a vulnerability and they were hacked and it put everybody's data including the data of the U S I mean of the FBI and the State Department and the Department of Justice at risk and we still don't know what was taken by our enemies Did you think about the Juniper Networks issue when you filed the All Writs Act report you know remedy in San Bernardino Mr COMEY No But I think about that and a lot of similar intrusions and hacks all day long because it's the FBI's job to investigate those and stop those Ms LOFGREN I was struck by your comment that Apple hadn't been hacked but in fact iCloud accounts have been hacked in the past I think we all remember in 2014 the female celebrity accounts that were hacked from the cloud from iCloud and CNBC had a report that China likely attacked iCloud accounts And then in 2015 last year Apple had to release a patch in response to concerns that there had been brute force attacks at iCloud accounts So I am anticipating we'll see that Apple will take further steps to encrypt and protect not only its operating system that it has today but also the protection as well as the iCloud accounts And I'll just close with this I have on my iPhone all kinds of messaging apps that are fully encrypted some better than others Some were designed in the United States a bunch of them were designed in other countries And I'm not--I wouldn't do anything wrong on my iPhone but if I were a terrorist I could use any one of those apps and communicate securely and there wouldn't be anything that the U S Government not the FBI not the Congress or the President could do to prevent that from occurring So I see this as you know the question of whether my security is going to be protected but the terrorists' will continue abate And I thank you Mr Comey for being here I yield back Mr Chairman Mr GOODLATTE The Chair thanks the gentlewoman And the Chair recognizes the gentleman from Texas Mr Poe for 5 minutes Mr POE Thank you Director I appreciate you being here Start with a little--some basics The Fourth Amendment protects citizens from government Citizens have rights government has power There is nowhere I see in the Fourth Amendment that there is an except-for-terrorists-cases exception or fear cases that the Fourth Amendment should be waived I signed lots of warrants in 22 years from everybody including the FBI Four corners of the warrant what is to be searched and law enforcement typically would fulfill the duty or ability in that warrant as far as they could which is a good thing and return the warrant Now we have a situation where the issue is not lawful possession FBI is in lawful possession of the San Bernardino phone lawful possession of the phone in New York Do you agree with me on that 47 Mr COMEY Yes Mr POE So we're not talking about whether the phones are in lawful possession The issue is whether--the specific issue is whether government can force Apple in this case to give them the golden key to unlock the safe because they can't develop the key I know that's kind of simplistic but is that a fair statement or not Mr COMEY No Mr POE Not Let me ask you this--okay you say it is not Apple develops the software and gives it to--and unlocks the phone but this is not the only phone in question Is that correct There are other phones that FBI has in lawful possession that you can't get into Mr COMEY Sure Law enforcement increasingly encounters phones investigations all over the place that can't be unlocked I would mention the Baton Rouge case too Mr POE All right There's several How many cases do you have in lawful possession that you want to get into the phone but you can't get into it because you don't have the software to break into it or to get into it Mr COMEY I don't know the number A lot Mr POE A lot Mr COMEY And they are all different which is what makes it hard to talk about any one case without being specific about what kind of phone it is Mr POE But you are in lawful possession of all these phones This is not the issue of whether FBI lawfully possesses them You have these phones You can't get into them Here is a specific phone You want iPhone--Apple to develop software to get into this phone My question is what would prevent the FBI from then taking that software and going into all those other phones you have and future phones you seize Mr COMEY I see This seems like a small difference but I think it's actually kind of a big difference The ask the direction from the judge is not to have Apple get us into the phones it's to have Apple turn off by developing software that will tell the phone to turn off the auto erase and the delay features so that we can try and guess the password And so in theory if you had another 5C running iOS 9 which is what makes this relief possible--I mean it when I say it's obsolete because I understand the 6s--there is no door for us to even try and pick the lock on so it wouldn't work But if there were phones in the same circumstances sure you could ask for the same relief from a court to try and make effective the search warrant Mr POE So rather than giving you the key it's really you want Apple to turn the security system off so they can get into the phone or you can get into the phone Mr COMEY Yeah My homely metaphor was take away the drooling watchdog that is going to attack us if we try and open it Give us time to pick the lock Mr POE Or like the Viper system that Mr Issa developed Turn off the Viper system so you can get into the phone And it boils down to the fact of whether or not government has the ability to demand that occur We have two court rulings They 48 are different I have read the opinions They are different a little different cases Would you agree or not Congress has to resolve this problem We shouldn't leave it up to the judiciary to make this decision Congress should resolve the problem and determine exactly what the expectation of privacy is in these particular situations of encryption or no encryption key no key Do you agree or not Mr COMEY I think that the courts are competent--and this is what we've done for 230 years--to resolve the narrow question about the scope of the All Writs Act But the broader question we're talking about here goes far beyond phones or far beyond any case This collision between public safety and privacy the courts cannot resolve that Mr POE And only--the Congress should then resolve what is the expectation of privacy in this high-tech atmosphere of all this information stored in many different places on the cloud on the phone wherever it's stored and--would you agree or not I am just asking should Congress resolve this issue of expectation of privacy of the American citizens Mr COMEY I think Congress certainly has a critical role to play Like I said since the founding of this country the courts have interpreted the Fourth Amendment and the Fifth Amendment so they are competent That's an independent branch of government But I think it is a huge role for Congress to play and we're playing it today I hope Mr POE I agree with you I think it's Congress' responsibility to determine the expectation of privacy in this high-tech world And I yield back Mr Chairman Mr GOODLATTE The time of the gentleman has expired The gentleman from Tennessee is recognized for 5 minutes There's 9 minutes and 45 seconds remaining in this vote I will take a chance if the gentleman from Tennessee will Mr COHEN If you want to go I will go or I will come back Mr GOODLATTE I am trying to move it along and not keep the Director any longer than we have to so go ahead Mr COHEN Thank you Director Comey are there limitations that you could see in permitting the FBI or government in a court to look into certain records certain type of cases certain type of circumstances that you could foresee or do you want it open for any case where there could be evidentiary value Mr COMEY I am not sure I am following you I like the way we have to do our work which is go to a judge in each specific case and show lawful authority and a factual basis for access to anybody's stuff Mr COHEN But if we decided to pass a statute and we thought it should be limited in some way maybe to terrorism or maybe to something where it's a reasonable expectation that a person's life is in jeopardy or that you could apprehend somebody who has taken somebody's life have you thought about any limits Because you know under what you are saying you go to a court I mean you could go to a court for cases that are not capital cases and that's--I don't think anybody here--what the public is fascinated or riveted on is the fact that what happened in San 49 Bernardino was so awful and if we can find some communication or some list that was in the cloud that these people contacted you know Osama bin Laden's cousin and that they get--and find out that he has something to do with it then that's important But if you are talking about getting into somebody's information to find out who they sold you know 2 kilos or two bags or whatever is a whole different issue Where would you limit it if you were coming up with a statute that could satisfy both your interest in the most extreme important cases and yet satisfy privacy concerns Mr COMEY Yeah I see I am sorry I misunderstood the question I don't know and haven't thought about it well enough And frankly I don't think that ought to be the FBI making that--offering those parameters to you There is precedent for that kind of thing We can only seek wire taps for example on certain enumerated offenses in the United States so it has to be really serious stuff before a judge can even be asked to allow us to listen to someone's communications in the United States It can't just be any offense So there's precedent for that kind of thing but I haven't thought about it well enough Mr COHEN Thank you Because I am slow in getting up there to vote and the Republicans hit the--real quickly I am going to yield back the balance of my time and start to walk fast Mr GOODLATTE The Chair thanks the gentleman The Committee will stand in recess We have two votes on the floor with 7 minutes remaining in the first vote Mr Director we appreciate your appearance We will come back soon Recess Mr GOODLATTE The Committee will reconvene and continue with questions for Director Comey And the Chair recognizes the gentleman from Utah Mr Chaffetz for 5 minutes Mr CHAFFETZ Thank you Mr Chairman And to the Director thank you so much for being here As I have mentioned before my grandfather was a career FBI agent so I have great affinity for the agency and what you do and how you do it They almost always make us proud But the big question for our country is you know how much privacy are we going to give up in the name of security And as you said there is no easy answer to that But when historically with all the resources and assets of the Federal Government all the expertise all the billions of dollars when has it been the function of government to compel or force a private citizen or a company to act as an agent of the government to do what the government couldn't do Mr COMEY That's a legal question In lots of different circumstances private entities have been compelled by court order to assist again through the All Writs Act New York Telephone is the Supreme Court case the seminal case on the topic Mr CHAFFETZ So let's talk for a moment about what you can see and what you can do With all due respect to the FBI they did-- they didn't do what Apple had suggested they do in order to re- 50 trieve the data correct I mean when they went to change the password that kind of screwed things up Did it not Mr COMEY Yeah I don't know that that's accurate actually I wasn't there I don't have complete visibility But I agreed with the questioner earlier there was an issue created by the effort by the county at the FBI's request to try and reset it to get into it quickly Mr CHAFFETZ And if they didn't reset it then they could have gone to a WiFi local WiFi a known WiFi access and performed that backup so they could go to the cloud and look at that data correct Mr COMEY Right You could get in the cloud through that mechanism anything that was backup-able--to make up a word--to the cloud but that does not solve your full problem I think I would still be sitting here talking about it otherwise Mr CHAFFETZ But let's talk about what the government can see on using a phone and it's not just an iPhone But you can look at metadata correct Mr COMEY Yes Mr CHAFFETZ The metadata is not encrypted correct If I called someone else or that phone had called other people all of that information is available to the FBI correct Mr COMEY In most circumstances right Metadata---- Mr CHAFFETZ In this case--let's talk about this case You want to talk about this case You can see the metadata correct Mr COMEY My understanding is we can see most of the metadata Mr CHAFFETZ How would you define metadata Mr COMEY I was just going to say that Metadata as I understand it is records of time of contact numbers assigned to the particular caller or texter It's everything except content You can't see what somebody said but you can see that I texted to you in theory My understanding is with text in particular that's tricky Particularly texting using iMessage there's limitations on our ability to see the metadata around that Again I am not an expert but that's my understanding Mr CHAFFETZ And do you believe that geolocation if you are tracking somebody's actual--where they are is that content or is that metadata Mr COMEY My understanding is it depends upon whether you are talking historical or real time when it comes to geolocation data but it can very much implicate the warrant requirement and does in the FBI's work a lot Mr CHAFFETZ So that's what we're trying to--what's frustrating to me being on Judiciary being the Chairman of the Oversight Committee there is nobody on the this panel as in a republic and representative of the people that have been able to see what the guidance is post-Jones in understanding how you interpret and what you are actually doing or not doing with somebody's geolocation Mr COMEY You have asked that of the FBI and not been able to get it Mr CHAFFETZ Department of Justice they have been asking for this for years What's frustrating is the Department of Justice is asking for more tools more compulsion and we can't even see what 51 you are already doing We can't even see to the degree you are using stingrays and how they work I mean I think I understand how they work but what sort of requirements are there Is it articulable suspicion Is there a probable cause warrant that's being used or needed And it's not just the FBI I mean you have got the IRS and Social Security and others using stingrays again other tools that I would argue are actually content into somebody's life and not just the metadata that you are able to see So how do we get exposure How do we help you if we can't-- if you routinely refuse--and I say ''you '' meaning the Department of Justice--access in explaining to us what tools you already do have and what you can access How do we solve that Mr COMEY Yeah I don't have a great answer sitting here I will find out what's been asked for and what's been given I like the idea of giving as much transparency as possible I think people find it reassuring at least with respect to the FBI To take cell phone tower simulators we always use search warrants And so that shouldn't be that hard to get you that information Mr CHAFFETZ What I worry about you may be responsible but I don't know what the IRS is doing with them and I have a hard time figuring out when that is responsible Last comment Mr Chairman To what degree are you able to access and get into either in this case or broadly are you able to search social media in general and are you using that as an effective tool to investigate and combat what you need to do Mr GOODLATTE The time of the gentleman has expired The witness can answer the question Mr COMEY Social media is a feature of all of our lives and so it's a feature of a lot of our investigations Sometimes it gives us useful information sometimes not It's hard to answer in the abstract but it's a big part of our work Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentleman from Georgia Mr Johnson for 5 minutes Mr JOHNSON Thank you Director Comey The Framers of our Constitution recognized a right to privacy that Americans would enjoy The Fourth Amendment pretty much implies that right to privacy Does it not Mr COMEY I am not a constitutional scholar I think a scholar if he were sitting here might say it's not the Fourth Amendment that's the source of the right to privacy it's other amendments of the Constitution But that's a technical answer The Fourth Amendment is critically important because it's a restriction on government power You may not look at the people's stuff their houses their effects without a warrant and without an independent judiciary Mr JOHNSON But it also grants impliedly to the government the Fourth Amendment the authority to search and seize when the search or seizure is reasonable Is that correct Mr COMEY Again to be technical I think the answer is Congress has given the government that authority through statute The Fourth Amendment is a restriction on that authority Mr JOHNSON The Fourth Amendment says that the right of the people to be secure in their place in their persons housings pa- 52 pers and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause supported by oath or affirmation And what I am reading into the Fourth Amendment is that the people do have a right to privacy have a right to be secure in their persons housings papers and effects but I am also reading into it an implied responsibility of the government to on occasion search and seize Would that be your reading of it also Mr COMEY Yes Mr JOHNSON And of course upon probable cause But there are some circumstances where in a hot pursuit or at the time of an arrest there's some exceptions that have been carved out to where a warrant is not always required to search and seize Is that correct Mr COMEY Yes You mentioned one the so-called exigent circumstances doctrine where if you are in the middle of an emergency and you are looking for a gun that a bad guy might have hid you know in a car or something you don't necessarily have to go get the warrant If you have the factual basis you can do the search and then have the judge look at it and validate it Mr JOHNSON Now even in a situation where exigent circumstances exist technology has now brought us to the point where law enforcement or the government is preempted from being able to search and seize Is that correct Technology has produced this result Mr COMEY Yeah I think technology has allowed us to create zones of complete privacy which sounds like an awesome thing until you really think about it But those zones prohibit any government action under the Fourth Amendment or under our search authority Mr JOHNSON Well it's actually a zone of impunity would it not be a zone where bad things can happen and the security of Americans can be placed at risk Mr COMEY Potentially yes sir Mr JOHNSON And that is the situation that we have with endto-end encryption Is that not correct Mr COMEY I think that's a fair description where we have communications where even with the judge's order can't be intercepted Mr JOHNSON Now you said that you were not a constitutional scholar and neither am I but does it seem reasonable that the Framers of the Constitution meant to exempt any domain from its authority to be able to search and seize if it's based on probable cause or some exigent circumstance allows for a search and seizure with less than a warrant and a showing of probable cause Mr COMEY Yeah I doubt that they--obviously I doubt that they imagined the devices we have today and the ways of communicating But I also doubt that they imagined there would be any place in American life where law enforcement with lawful authority could not go And the reason I say that is the First Amendment talks about the people's homes Is there a more important place to any of us than our homes So from the founding of this country it was contemplated that law enforcement could go into your house with appropriate predi- 53 cation and oversight So to me the logic of that tells me they wouldn't have imagined any box or storage area or device that could never be entered Mr JOHNSON So from that standpoint to be a strict constructionist about the Constitution and the Fourth Amendment it's ridiculous that anyone would think that we would not be able to take our present circumstances and shape current law to appreciate the niceties of today's practical realities I know I am rambling a little bit But did you understand what I just said Mr COMEY I understand what you said sir Mr JOHNSON Would you agree or disagree with me Mr GOODLATTE The time of the gentleman has expired The Director may answer the question Mr COMEY I think it's the kind of question that democracies were built to wrestle with and that the Congress of the United States is fully capable of wrestling with in a good way Mr JOHNSON Well in prior times we have been Mr GOODLATTE The time of the gentleman has expired Mr JOHNSON Thank you Mr GOODLATTE The Chair recognizes the gentleman from Pennsylvania Mr Marino for 5 minutes Mr MARINO Thank you Mr Chairman Mr Director it's always a pleasure Mr COMEY Same sir Mr MARINO I am going to expand a little bit on one of Judge Poe's questions Is the Bureau asking Apple to simply turn over the penetration code for the Bureau to get into or that you want the penetration code at your disposal Do you understand what I am saying Mr COMEY As I understand the judge's order the way it could work out here is that the maker of the phone would write the code keep the phone and the code entirely in their office space and the FBI would send the guesses electronically So we wouldn't have the phone We wouldn't have the code That's my understanding of it Mr MARINO That's good point to clarify because there's some-- there's a lot of rumors out there I am going to switch to the courts a little bit here Do you see the Federal court resolving the warrant issue that the Bureau is presently faced with whatever way that decision eventually comes down or should Congress legislate the issue now if at all Mr COMEY I don't--I appreciate the question I don't think that's for me to say I do think the courts--because some people have said so in the middle of this terrorism investigation why didn't you come to Congress Well because we're in the middle of a terrorism investigation And so I think the courts will sort that out faster than any legislative body could but only that particular case The broader question as I said earlier I don't see how the courts can resolve this tension between privacy and public safety that we're all feeling Mr MARINO Another good point Given that most of our social professional and very personal information is on our desktop computers on our laptops on our pads and now more than ever on these things what is your position on 54 notching up the level at which members of the Federal judiciary can approve a warrant to access critically valuable evidence to solve a horrific felony particularly when fighting terrorism Mr COMEY Do you mean making the threshold something above probable cause Mr MARINO No no not the threshold the Federal judicial individuals making this decision Right now I understand it's a magistrate When I was at the State level we could do some things at sort of the magistrate level or the district court but then we had to go to the superior court and working in the Federal system with you we had to go to one or two different levels What's your position on that Mr COMEY I see what you are saying So instead of having magistrate judges decide these questions the district court might Mr MARINO Yeah And no disrespect to magistrate courts I am very good friends with a lot of those brilliant people who will eventually I know go to the bench But from a perspective of the public that a more narrowly defined limited number of people making that decision concerning the electronics that we have Mr COMEY Honestly Congressman I haven't thought about that I agree with you I have a number of friends who are magistrate judges and they are awesome And they think well and they rule well I think they are fully capable of handling these issues but I haven't thought about it well enough to react other than that Mr MARINO Okay And just for the record I have managed a couple of prosecution offices and I have never gone to the experts whether it's in DNA or whether it's in these electronics and ask them did you complete everything that you should have completed Mr COMEY Thank you Mr Marino Mr GOODLATTE The Chair recognizes the gentlewoman from California Ms Chu for 5 minutes Ms CHU Director Comey my district is next to San Bernardino After the terror attack we mourned the loss of 14 lives and empathized with the 22 wounded and there is indeed fear and anxiety amongst my constituents So our discussion here today is particularly important to the people back home There are many in our area that want answers but there are also many that feel conflicted about putting their own privacy at risk So my first question to you is Under Federal law we do not require technology companies to maintain a key to unlock encrypted information in the devices they sell to customers Some of the witnesses we will hear from today argue that if such a key or software was developed to help the FBI access the device used by Syed Farook it would make the millions of other devices in use today vulnerable How can we ensure that we're not creating legal or technical backdoors to U S technology that will empower other foreign governments in taking advantage of this loophole Mr COMEY It's a great question I think what you have to do is just talk to people on all sides of it who are true experts which I am not but I have also talked to a lot of experts And I am an optimist I actually don't think we've given this the shot that it de- 55 serves I don't think the most creative and innovative people in our country have had an incentive to try and solve this problem But when I look at particular phones in the fall of 2014 the makers of these phones could open them And I don't remember people saying the world was ending at that point and that we're all exposed And so I do think judgments have been made that are not irreversible But I think the best way to get at it is talk to people about so why do you make the phone this way and what is the possibility The world I imagine is a world where people comply with warrants How they do it is entirely up to them Lots of phone makers and providers of email and text today provide secure services to their customers and they comply with warrants That's just the way they have structured their business And so it gives me a sense of optimism that this is not an impossible problem to solve Really really hard and it will involve you all talking to the people who really know this work Ms CHU Well I would like to ask about law enforcement finding technical solutions I understand that there may be other methods or solutions for law enforcement when it comes to recovering data on a smartphone Professor Landau argues in her testimony later today that solutions to accessing the data already exist within the forensic analysis community solutions which may include jail breaking the phone amongst others Or she says other entities within the Federal Government may have the expertise to crack the code Has the FBI pursued those other methods or tried to get help from within the Federal Government such as from agencies like the NSA Mr COMEY Yes is the answer We've talked to anybody who will talk with us about it and I welcome additional suggestions Again you have to be very specific 5C running iOS 9 what are the capabilities against that phone There are versions of different phone manufacturers and combinations of model and operating system that it is possible to break a phone without having to ask the manufacturer to do it We have not found a way to break the 5C running iOS 9 And as I said in a way this is kind of yesterday's problem because the 5C although I am sure it's a great phone has been overtaken by the 6 and will be overtaken by others that are different in ways that make this relief yesterday Ms CHU So let me ask you this Like smart phones safes can be another form of storage of personal information Similarly to how technology companies are not required to maintain a key to unlock encryption safe manufacturers are not required to maintain keys or combinations to locks Given this law enforcement has been able to find a way to get into safes under certain circumstances or obtain critical information through other avenues So how does this differ from unlocking a smartphone It's clear that technology is outpacing law enforcement's ability to get information from devices like the iPhone even with a proper warrant but isn't it the FBI or the law enforcement agency who bears the responsibility to figure out the solution to unlock the code 56 Mr COMEY I will take the last part first Sure if we can figure it out The problem with the safe comparison is there's no safe in the world that can't be opened And if our experts can't crack it we will blow it up We will blow the door off And so this is different The awesome wonderful power of encryption changes that and makes that comparison frankly inept And so sure where law enforcement can appropriately lawfully figure out how to do it we will and should But there will be occasions and it's going to sweep across--again with the updating of phones and the changing of apps where we communicate end-toend encrypted--it's going to sweep across all of our work and outstrip our ability to do it on our own Ms CHU Thank you I yield back Mr GOODLATTE The Chair thanks the gentlewoman The gentleman from South Carolina Mr Gowdy is recognized for 5 minutes Mr GOWDY Thank you Mr Chairman Director thank you for your service to the country And I do appreciate your acknowledgment and that of my colleagues of the difficulty in reconciling competing binary constitutional principles like public safety national security and privacy And I confess upfront my bias is toward public safety Because of this loosely held conviction I have that the right to counsel the right to free speech the right to a jury trial just isn't of much use if you are dead so I reconcile those competing principles in favor of public safety And my concern as I hear you testify is that I have colleagues and others who are advocating for these evidence-free zones They are just going to be compartments of life where you are precluded from going to find evidence of anything And I am trying to determine whether or not we as a society are going to accept that that there are certain--no matter how compelling the government's interest is in accessing that evidence we are declaring right now this is an evidence-free zone you can't go here no matter whether it's a terrorist plot--and I am not talking about the Feng case That's a drug case The case the magistrate decided yesterday in New York is a drug case Those are a dime a dozen National security there's nothing that the government has a more compelling interest in than that and we're going to create evidence-free zones Am I missing something Is that how you see it You just can't go in these categories unless somebody consents Mr COMEY That's my worry and why I think it's so important we have this conversation Because even I on the surface think it sounds great when people say Hey you buy this device no one will ever be able to look at your stuff But there are times when law enforcement saves our lives rescues our children and rescues our neighborhoods by going to a judge and getting permission by looking at our stuff And so again I come to the case of a Baton Rouge 8-month pregnant woman shot when she opens her door Her mom says she keeps a diary on her phone We can't look at the diary to figure out what might have been going on in her life Who was she texting with That's a problem I love privacy But all of us also love public safety and it's so easy to talk about Buy this amazing 57 device you will be private But you have to take the time to think Okay There's that and what are the costs of that And that's where this collision is coming in Mr GOWDY Well I love privacy too but I want my fellow citizens to understand that most of us also in varying degrees also love our bodies and the physical integrity of our body But since Schmerber the government has been able to access orders for either blood against the will of the defendant or in some instances surgical procedures against the will of the defendant So when I hear my colleagues say have you ever asked a nongovernment actor to participate in the securing of evidence absolutely That's what the surgeon does If you have a bullet from an officer who was shot in a defendant you can go to a judge and ask the judge to force a nurse or surgeon to anesthetize and remove that bullet So if you can penetrate the integrity of the human body in certain categories of cases how in the hell you can't access a phone I just find baffling But let me ask you this If Apple were here--and they are going to be here--how would they tell you to do it If there were a plot on an iPhone to commit an act of violence against say hypothetically an Apple facility and they expected you to prevent it how would they tell you to access the material on this phone Mr COMEY I think they would say what they have said which I believe is in good faith that we have designed this in response to what we believe to be the demands of our customers to be immune to any government warrant or our the manufacturer's efforts to get into that phone We think that's what people want And that may be so except I would hope folks will look at this conversation and say ''Really do I want that '' and take a step back and understand that this entire country of ours is based on a balance It's a hard one to strike but it's so seductive to talk about privacy as the ultimate value In a society where we aspire to be safe and have our families safe and our children safe that can't be true We have to find a way to accommodate both Mr GOWDY So Apple on the one hand wants us to kind of weigh and balance privacy except they have done it for us They have said at least as it relates to this phone we've already done that weighing and balancing and there is no governmental interest compelling enough for us to allow you to try to guess the password of a dead person's phone that is owned by a city government There's no balancing to be done They have already done it for us I would just--I will just tell you Director in conclusion We ask the Bureau and others to do a lot of things investigate crime after it's taken place anticipate crime stop it before it happens And all you are asking is to be able to guess the password and not have the phone self-destruct And you can go into people's bodies and remove bullets but you can't go into a dead person's iPhone and remove data I just find it baffling But I am out of time Mr GOODLATTE The gentleman's time has expired The Chair recognizes the gentleman from Florida Mr Deutch for 5 minutes Mr DEUTCH Thank you Mr Chairman 58 Director Comey thank you for being here Thank you for your service and that of the men and women who work for you We're all grateful for what they do And I just wanted to take a moment before I ask you a couple questions here to let you know that Bob Levinson who was an agent for over 20 years 28 years at the Justice Department continues to be missing I want to thank you for what you have done I want to thank you for the Facebook page in Farsi that you have put up I would love a report on the effectiveness and what you have heard from that And I want to more than anything else on behalf of Bob's family I want to thank you for never forgetting this former agent and I am grateful for that Mr COMEY Thank you sir He'll never be forgotten Mr DEUTCH Now I want to agree with Mr Gowdy that if this were as easy as public safety or privacy I think most of us probably all of us if we had to make the choice we're going to opt for public safety for the very reason that Mr Gowdy spoke of I have some questions What I am confused about is this The tool that you would need to take away the dogs take away the vicious guard dogs it's a tool that would disable the auto-erase There's some confusion as to whether there's an additional tool that you are seeking that would allow you to rapidly test possible passcodes Is there a second tool as well Mr COMEY Yeah I think there's actually three elements to it And I have spoken to experts I hope I get this right The first is what you said which is to disable the self-destruct auto-erase type feature The second is to disable the feature that between successive guesses--as I understand iOS 9 it spreads out the time so even if we got the ability to guess it would take years and years to guess So do away with that function And the third thing which is smaller is set it up so that we can send you electronic guesses so we don't have to have an FBI agent sit there and punch in 12-3-4 like that Mr DEUTCH And once they created that would you expect them after this case would you expect them to preserve that or destroy it Mr COMEY I don't know It would depend on what the judge's order said I think that's for the judge to sort out That's my recollection Mr DEUTCH So here is the issue I think that vicious guard dog that you want to take away so you can pick the lock is one thing But in a world where we do--I mean it's true there are awful people terrorists child predators molesters who do everything on here But so do so many of the rest of us and we would like a pack of vicious guard dogs to protect our information to keep us safe because there's a public safety part of that equation as well And the example of surgical procedures the reason that that I don't think applies here is because in that case we know the only one doing the surgical procedure is the doctor operating on behalf of law enforcement But when this tool is created the fear obviously is that it might be used by others that there are many who will try to get their hands on it and will then put at risk our information on our devices 59 And how do you balance it This is a really hard one for me This isn't an either or I don't see it as a binary option So how do you do that Mr COMEY I think it's a reasonable question I also think it's something the judge will sort out Apple's contention which again I believe is made in good faith is that there would be substantial risk around creating this software On the government side count us skeptical although we could be wrong because I think the government's argument is that's your business to protect your software your innovation This would be usable in one phone But again that's something the judge is going to have to sort out It's not an easy question Mr DEUTCH If it's the case though that it's usable in more than one phone and that it applies beyond there then the public safety concerns that we may have that a lot of us have about what would happen if the bad guys got access to our phones and our children's phones in that case those are really valid Aren't they Mr COMEY Sure The question that I think we're going to have litigation about is how reasonable is that concern And you know slippery-slope arguments are always attractive but I mean I suppose you could say well Apple's engineers have this in their head What if they are kidnapped and forced to write software That's why the judge has to sort this out between good lawyers on both sides making all reasonable arguments Mr DEUTCH And finally Mr Chairman I just worry when we talk about the precedential value the discussion is taking place wholly within a domestic context There are countries around the world where we know very well that the governments do their best to monitor what happens in their country and through people's cell phones are able to squash dissent are able to take action to throw people in jail and to torture people And I think that precedential value is something else that we have to bear in mind as we engage in this really important and really difficult debate And I yield back Mr Chairman Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentleman from Florida Mr DeSantis for 5 minutes Mr DESANTIS Good afternoon Director Comey When you are looking at a case like the Apple case and you want to be able to as you said remove the guard dogs and the FBI go in are you concerned about preserving the evidentiary value that can then be used or are you more interested in just getting the information for intel purposes so that you can use that for counterterrorism Mr COMEY Our hope is to do both but if we have to choose we want the information first and then we would like it obviously to be in a form that could be used if there was a court proceeding against somebody someday Mr DESANTIS I guess are there instances in which maybe a company would provide the data but would provide it to you in a way that you would not necessarily be able to authenticate that in court Mr COMEY Sure That happens all the time Mr DESANTIS And that's something that the FBI if that's what you get then you are fine with that 60 Mr COMEY Depends upon the case but in general that's a tool that we use private cooperation where we may not be able to use the information in court Mr DESANTIS And in terms of the guy in San Bernardino it wasn't even his phone and then the owner of the phone has consented for the FBI to have the information Is that correct Mr COMEY Right We have a search warrant for the phone The guy who was possessing it is obviously dead And the owner of the phone has consented Mr DESANTIS What's the best analogous case to what you are trying to do here Because people will look at it and say Well you are basically commandeering a company to have to do these things That's typically not the way it works So what would you say is-- outside of the technology context what would be an analogous case Mr COMEY Well everyone in the United States to some degree has an obligation to cooperate with appropriate authority The question that the court has to resolve under the All Writs Act is what are the limits of that Apple's argument is that might be okay if it requires us to hand you something we've already made to open a phone but if we're going to make something new that's beyond the scope of the law As you know that's something the courts do every day in the United States trying to understand the law and interpret its scope based on a particular set of facts So that's what will be done in San Bernardino in a different context It's being done in Brooklyn in the drug case in Brooklyn I think it's being done in different stages all over the country because in investigation after investigation law enforcement is encountering these kinds of devices Mr DESANTIS In your cases have you gotten an order under the All Writs Act to just have a defendant if you have a search warrant produce the code Mr COMEY I don't know of a--I don't know of a similar case Mr DESANTIS In terms of I know some of the technology companies are concerned about if they are creating ways to I guess penetrate their systems that's creating like a back door And I guess my concern is terrorists obviously when operating in a variety of spheres one of the ways that they get a lot of bang for their buck is cyber attacks And so if companies were creating more access for law enforcement in some of these situations would that create more vulnerability for people and be more likely that they were subjected to a potential cyber attack Mr COMEY Potentially sure If there were access tools that got loose in the wild or that could be easily stolen or available to bad people it's a concern As I said a huge part of the Bureau's work is protecting privacy by fighting against those cybercriminals So it's something we worry about every day Mr DESANTIS Well how would you then provide a assurances if you are requesting a company to work with you that this doesn't get out into the wild so to speak Mr COMEY I think in the particular case we have confidence-- and I think it is justified--that Apple is highly professional at protecting its own innovation its own information So the idea here 61 is You keep it You figure out how to store it You figure--you even take the phone and protect it I think that's something they do pretty well but again that is something the judge will sort out Apple's argument I think will be that's not reasonable because there are risks around that Even though we're good at this it could still get away from us And the judge will have to figure that out what's reasonable in that circumstance Mr DESANTIS Thank you I yield back the balance of my time Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentleman from Illinois Mr Gutierrez Mr GUTIERREZ Thank you Mr Chairman And thank you Director Comey for coming and being with us here this afternoon I won't take my 5 minutes so I will make a couple of comments and beginning by saying that I hope that all of the Members of the Committee would take note that the Director is actually answering our questions and that is obviously very refreshing in that we get a lot of witnesses here And if they bring them we might not like them if we bring them they don't seem to like them And it's good to get information without passing judgment And I think that's what you have done very well here today You are not passing judgment on Apple and their motivation And I think in not questioning people's motivation it's easier to get a solution because once you do that everybody kind of says ''Okay let's get all our defenses up '' And really what we need to be doing is defending the American people not Apple or any company or the FBI for that matter but defending the American people So I want to thank you for that And I just want to suggest that we continue these conversations I buy a house I have no reasonable expectation that if you get a warrant you are going to go into my--any drawer in my bedroom When I buy the house I don't have any expectation of privacy once you get a warrant to come I do expect you to get one I come from a time when I wasn't quite sure the Chicago Police and law enforcement was actually getting warrants in the city of Chicago in the 1960's to get that so we want to be a little careful and make sure I am trusting of you If you were the FBI agent I would say no problem Director Comey come on in But unfortunately there are human beings at all the different levels of government and I just want to say that I am happy you came because I don't have that expectation in my car I don't have that expectation--I don't use the computer a lot to--I still write I don't have any expectation But the difference is--and I think you have made and I think this Committee should take it into consideration--we do put a lot of information in these contraptions and the reason we put them there is because we don't want to put them on a notebook we want to keep them private But I really don't have any expectation that once I put this if you have a lawful warrant that you should be able to get it even from my computer I think that's where you are going Could you--is that where you think--have I heard you right 62 Mr COMEY I do I agree with you except I think the case for privacy is even stronger than you said You do have a reasonable expectation to privacy in your home in your car and in your devices The government under our Constitution is required to overcome that by going to an independent judge making a showing of probable cause and getting a warrant What we need to talk about as a country is we're moving to a place where there are warrant-proof places in our life and yes these devices are spectacular because they do hold our whole lives They are different than a briefcase They are different than a drawer So it is a source with--a place with a tremendous reasonable expectation of privacy But if we're going to move to a place where that is not possible to overcome that that's a world we've never lived in before in the United States That has profound consequences for public safety And all I am saying is we shouldn't drift there right Companies that sell stuff shouldn't tell us how to be The FBI shouldn't tell us how to be The American people should say ''The world is different How do we want to be '' And figure that out Mr GUTIERREZ Yeah I think we're in the same place then because I do have a reasonable expectation of privacy in my home But if you go to court you convince the judge and you overcome it I have never had any expectation that a court order because I bought something I am going to be able to overcome a court order So I think we're in the same place So thank you so much Director for coming and sharing time I hope to share more time with you so we can talk some more Thank you Mr GOODLATTE The Chair recognizes the gentleman from Iowa Mr King for 5 minutes Mr KING Thank you Mr Chairman Director thanks for your testimony here and your leadership with the FBI I am curious about this from a perspective that has to do with our global war against radical Islamic terrorists And I have laid out a strategy to defeat that ideology I would take it back to our ability some years past to be able to identify their cell phones and get into their cell phones in such a way that we also got into their heads which drove them into the caves and really diminished a lot of their otherwise robust activity that Al Qaeda might have carried out against us I think that was a successful effort Now we have global cyber operations going on with I think by your numbers from a previous report I read well over 100 000 ISIS activities on Twitter and other cyber activity in a single day And so I am interested in how the parameters that have been examined thoroughly by a lot of the lawyers on this panel might apply to an all-out cyber warfare against ISIS and any of their affiliates or subordinates that I think is necessary if we're going to defeat that ideology And so I am thinking in terms of if this Congress might diminish slow down or shut down access to this phone that also means access to any other phone that they might be using they would have a high degree of confidence that they could operate with a level of impunity in the cyber world out there 63 Do you have any comments you would like to make on the implications that being locked out of an opportunity to unlock this phone might mean to the global war on terror that could be prosecuted in the next Administration aggressively across the fields of cyber warfare And I would just add to that for the sake of enumerating them financial warfare educational warfare and human intelligence and the network that would be necessary not just the kinetic activity to defeat radical Islamic terrorism Mr COMEY Thank you Mr King This conversation we're having today and that I hope will continue is really important for domestic law enforcement but it has profound implications for among other things our counterterrorism work Because since Mr Snowden's revelations terrorist tradecraft changed and they moved immediately to encrypted apps for their communication in trying to find devices that were encrypted wrap their lives in encryption because they understand the power of encryption And so there's no place we see this collision between our love for privacy and the security of encryption and public safety than in fighting terrorism especially ISIL Because for the FBI's responsibility which is here in the United States every day we're looking for needles in a hay stack And increasingly the most dangerous needles go invisible to us because that's when ISIL moves them to an encrypted app that's end-to-end encrypted and a judge's order is irrelevant there That's why this is such an urgent feature of our work It has huge implications for law enforcement overwhelmingly but it has profound implications in the fight against terrorism Mr KING Do you get any signals that the American public or the United States Congress is contemplating some of the things that you discussed here to the depth that it would be a component in the decisionmaking Mr COMEY I don't know I know everybody's interested in this and everybody all thoughtful people see both sides of this and are trying to figure out how to resolve it how to resolve it practically how to resolve it technically And the other challenge is--not to make it harder--there is no it There isn't a single it There's all different kinds of manifestations of this problem we call going dark So what I see is people of good will who care about privacy and safety wrestling with this Court cases are important but they are not going to solve this problem for us Mr KING Let me suggest that--I will just say I think it's a known and a given that ISIS or ISIL is seeking a nuclear device and has pretty much said that publicly If we had a high degree of confidence that they had--that they were on the cusp of achieving such capability and perhaps capability of delivering it if that became part of the American consciousness do you think that would change this debate that we're having here today Mr COMEY I do worry that it's hard to have nuanced complicated conversations like this in an emergency and in the wake of a disaster which is why I think it's so important we have this conversation now because in the wake of something awful happening it will be hard to talk about this in a thoughtful nuanced 64 way And so I think that's why I so welcome the Chairman having this hearing and having further conversations about it Mr KING Thank you Director And I will just state that my view is that I want to protect the constitutional rights of the American people and I would like to be able to have this framed in law that reflects our constitutional rights But I would like to have us consider how we might keep a nation safe in the face of this and how we might prosecute a global war against radical Islam even in the aftermath of a decision that might be made by either a judge or the United States Congress I thank you Mr Chairman and I yield back the balance of my time Mr GOODLATTE The Chair thanks the gentleman The gentlewoman from California Ms Bass is recognized for 5 minutes Ms BASS Thank you Mr Chair And thank you Director Comey for your time and your patience with us today I had a townhall meeting in my district on Sunday and actually a couple hundred people showed up and it was a general townhall meeting talking about issues that Congress is dealing with and much to my surprise this was a burning issue And many of my constituents came to ask me questions and I told them that they could suggest some questions and I would ask you So maybe you could speak to some of my constituents today so I can send them a clip of your testimony Basically in general they had a hard time believing--I mean they were not supportive They don't want you know Apple to comply But they had a hard time believing that the FBI couldn't already do this And so a couple of the questions were How have so many others cracked iPhones and shared their findings with videos and how-to articles And given that you described it not as a back door but getting the dogs you know away so that you can pick the lock their question was What other intelligence community agencies has the FBI worked with considering there's at least 12 in the government Between all of these agencies how is it that you haven't been able to call the dogs off and pick the lock Mr COMEY There are actually 16 other members of the U S intelligence community It pains me to say this because I--in a way we benefit from the myth that is the product of maybe too much television The only thing that's true on television is we remain very attractive people but we don't have the capabilities that people sometimes on TV imagine us to have If we could have done this quietly and privately we would have done it Ms BASS Right Mr COMEY This litigation is difficult It's especially difficult as I said for the people who were victimized in San Bernardino and so we really can't As I said there may be other models other permutations and combinations where we have different capabilities but I'm here to tell you here--and again maybe tonight someone will call us and say I've thought of something Apple is very good at what it does It's a wonderful company It makes wonderful products right They have set out to design a phone that can't be 65 opened and they're darn near succeeding I think with the 6 and beyond they will have succeeded That doesn't make them bad people that just poses a challenge for us that we're not yet up to meeting without intervention from courts Ms BASS Since you can clone iPhone contents to compatible hardware and test passwords on the clones without putting the original at risk can't you use so-called brute force methods to guess the passcode Mr COMEY Not with the--I think this is what Mr Issa was asking about I think a lot of tech experts ask why can't you mirror the phone in some way and then play with the mirror For reasons I don't fully understand not possible in this circumstance So we do want to try and brute force the phone that is the multiple guesses But we need first--we'll do that ourselves but we need removed the auto-erase function and the delay-between-guesses function which would make us take 10 years to guess it If we have those removed we can guess this phone's password with our computing power in 26 minutes is what we're told because we have enormous computing power in the U S Government but we need to be able to bring it to bear without the phone killing itself Ms BASS Thank you I yield back the balance of my time Mr GOODLATTE The Chair recognizes the gentleman from Idaho Mr Labrador for 5 minutes Mr LABRADOR Thank you Mr Chairman And thank you Director for being here Thank you for what you're doing I know you have a very difficult job as you're trying to balance both security and privacy I do have a few questions As you're looking at the laws that are in place like CALEA and FISA or the other different avenues that we're talking about something that concerns me is that this is very different than some of the examples that have been given here For example when you have--when you're going into a home if you're asking for a key if you go to the landlord that key's already made and you can go to the landlord and you can say ''I have a warrant here '' and that key is made ''Can you please give me a key for that '' where the method of creating that key even if the key does not exist is already--does already exist This is very different than that Would you agree Mr COMEY Yes You're exactly right There's a difference between ''Hey landlord you have this spare key the judge directs you to give it to us '' and ''Hey landlord we need you to make a key for this lock '' Mr LABRADOR Yeah Mr COMEY And that's a legal question as to whether the particular statutory authority we're using here the All Writs Act extends to that Mr LABRADOR Correct Mr COMEY We think in the government there's a reasonable argument to be made it does and should and on the other side lawyers for Apple argue it doesn't and that's what the judge will sort out Mr LABRADOR But this goes even one step further In this scenario the landlord can create the key has the ability to create the key and the technology to create the key already exists In the 66 Apple case that's not the case They have never created the key that you're asking for Isn't that correct Mr COMEY I don't know whether that's correct or not Mr LABRADOR Well as far as we know as far as they're letting us know there's no way for them as they're telling us--because if not I think they would be violating the judge's order If they have an ability to do this I do agree with you that they would be violating the judge's order but what they're telling us is that ability does not exist Isn't that correct Mr COMEY I think that's right I think obviously their general counsels are very smart guys here he can talk about this But I think what they're saying is We can do it but it would require us to sit at a keyboard and write new code that doesn't currently exist Mr LABRADOR Correct Mr COMEY Whether there's a meaningful distinction between that and someone who already has a key legally is something a judge will have to sort out Mr LABRADOR So what concerns me is the old legal maxim that you know bad cases make bad law This is clearly a bad case We all want you to get access to this phone through legal means because maybe it would uncover some of the problems that we have in the Middle East maybe there's some evidence in there that could really lead us to take some terrorists down I think we are all there but the problem is that this is a bad case This is a person who obviously is dead who has never given his code to somebody else And I'm concerned that as we're looking down this road what we're doing is we're opening the door for other things that could actually be detrimental to our safety and security For example I think you've testified many times that we're getting hacked all the time Isn't that correct Mr COMEY Yes Mr LABRADOR So maybe one of the reasons that Apple is refusing to do this or is hesitant to do something like this because they know that even they get hacked and when you open--when you create that key that doesn't exist at all right now you're actually opening up every other phone that's out there Do you see how that could be a concern Mr COMEY I see the argument The question the judge will have to decide is is that a reasonable argument Mr LABRADOR Because you---- Mr COMEY Sorry Mr LABRADOR No I'm sorry Mr COMEY Go ahead Mr LABRADOR You said that Apple is highly--they are highly professional in keeping secrets Would you say that the Federal Government also has very good people that are highly professional in keeping secrets Mr COMEY Parts of it Mr LABRADOR Me too Recently we've learned that there's been a hacking incident at the IRS Are you familiar with that Mr COMEY Yes 67 Mr LABRADOR So that's what I'm concerned about The moment that you open up that door the moment that you open up that key that doesn't currently exist you're actually allowing all these hackers that are out there--and some of them are our enemies that are trying to do us harm whether it's economic harm or whether it's actual terrorism They're out there looking for ways to actually get into your iPhone into my iPhone into everybody else's iPhone and at some point--that's why you have such a difficult job--is we have to balance that safety and security Do you think that this capability that you're asking for can only be used pursuant to a warrant Mr COMEY The capability that the judge has directed Apple to provide Mr LABRADOR Correct Mr COMEY I think that's the way it's--that's the procedural posture of it There's a warrant and the judge has issued an order Mr LABRADOR That's how it is issued right now but do you think that that can only be obtained through a warrant Are you seeking to obtain it later through other means other than warrants Mr COMEY I don't know how we would if it's in Apple's possession Unless they voluntarily gave it to someone there would have to be a judicial process---- Mr LABRADOR Okay Mr COMEY continuing If they maintained it afterwards Mr LABRADOR Thank you very much I've run out of time Thank you Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentleman from Louisiana Mr Richmond for 5 minutes Mr RICHMOND Thank you Mr Chairman Before I start I'd like to enter into the record two articles One is from the Toronto Star titled ''Encrypted Evidence Is Increasingly Hampering Criminal Investigations Police Say '' And another one is from the Baton Rouge Advocate which says ''The Brittney Mills Murder Case Has Put Baton Rouge in the Middle of the National Cell Phone Encryption Debate '' Mr GOODLATTE Without objection they will be made part of the record The information referred to follows 68 evidence is increasingly hampering criminal investigations police say Not even search warrants make a differe nee BY Mark Greenhlatt Seripps News and Robert Crihh The Town to Star POSTED PM Nor a 2u15 UPDATED 3 54 5th Nor o 2015 WASHINGTON D C Barbara Mills a retired nurse in Baton Rouge has been tormented for seven months by questions no mother should have to ask Who killed her 29 year old daughter Brittney in cold blood and why is new privacy technologv allowed to potentially stop the police from finding out Brittney's murder is only one of many serious crimes in the United States and Canada that could go unsolved because Apple and Google are deploying strong on cell phones and messaging applications that even the oops can t break through The advanced privacy technology introduced after Edward Snowden revealed the warrantless surveillance is designed to keep all prying eyes away from les or messages it' the correct password is not used- In a joint investigation Seripps News and The Toronto Star have found the very that has become so prized by technology rms and many consumers is also becoming a critical too for child molesters drug dealers and other criminals who can hide evidence the authorities say they can no longer access even with a search warrant Even a law abidng citizen who loses a loved one like Barbara Mills is now unable to recover les stored on the full phones if thatr didn't obtain their relatives password in advance It's a battle being waged between law enforcement in the U S Canada and other 69 countries and privacy advocates with both sides claiming they're trying to protect your safety Police agencies contend they are losing critical tools to track and arrest criminals Privacy advocates argue that governments around the world have lost the trust of public while arguing protects vulnerable groups They often say that investigators have other tools at their disposal to solve crimes and do not need access to text messages or stored data At this stage of the battle law enforcement is losing Scripps and the Toronto Star made numerous requests over several months across all levels of government asking for speci c cases where investigations were thwarted because of Law enforcement agencies had many anecdotes but are just now starting to collect data But in Baton Rouge local authorities have no hesitation blaming Apple s latest for bringing their search for the person who shot Brittney Mills to a near hall Mills a single mother who was eight months pregnant with her second child opened her apartment door late one evening last April Police believe she knew the killer She refused to let the still unknown person borrow her car they believe and was shot shortly alter Her unborn but nearly full-term baby boy clung to life for a week before dying Mills leaves behind a daughter now 10 years old Police are convinced clues to the murderers identity lie inside the victim s Apple iPhone She did say she had a diary in her phone and that everything negative that happened to her was in that diary her mom Barbara said If that phone could help solve that case then I think law enforcement and law enforcement alone should be able to go into those phones and access whatever it is they need to access You have two murders here Not one but two But like many consumers Brittney Mills never shared her phone s password with anyone Baton Rouge authorities obtained her family's permission to look inside of it but could not get past Apple s even after reaching out to the FBI and the Secret Service for help I'm at a dead end right now and I need that information to make sure we fully investigate this case and try to bring justice to this family and our community East 70 Baton Rouge District Attorney Hillar Moore said Compounding r the problem if police or any user enters the wrong password in to an device six times in a row a message will display saying the device is disabled So with the Mills murder case going cold Baton Rouge authorities obtained a search warrant this September in an attempt to force Apple to help them break through the company's But two days after receiving the court ordered search warrant Apple s Privacy 8 Law Enforcement Compliance team delivered the bad news to homicide investigators concluding in a brief email that stated Since the device is 105 version 8 or a later version the extraction cannot be completed Investigators were able to successfully retrieve a trove of information from Brittney s Apple iCloud account but they say the last time a backup of her phone occurred was months before the crime meaning her most recent communications and activities remain unknown to police and her diary was not included in any of the les recovered from the iCloud backup This just tells you drug dealers killers to do What you want with impunity because law enforcement can t get into your phone Moore said Apple declined repeated requests to comment on the record about the Mills murders or any related issues But in an open letter to customers that addreSSes the topic more broadly Apple s CEO Tim Cook explains on the company's Website we respect your privacy and protect it with strong Google has announced full disk in its newest Android 6 0 operating system which was launched in late October Law enforcement of cials remain in early stages of collecting information about the impact of Apple s i088 released one year ago but in some jurisdictions the numbers are beginning to trickle out In Manhattan the of ce of District Attorney Cyrus R Vance Jr says that in less than 12 months roughly 111 iPhones running 8 or newer were inaccessible to its staffers 71 Joan Vallero a spokesperson for Vance says the time period tracked was from last October 2014 to this September Vallero says the lack of access disrupted active investigations into the attempted murder of three individuals the repeated sexual abuse of a child an ongoing sex traf cking ring and numerous assaults and robberies among other everyday crimes She said not every disrupted crime will be unsolvable but says the delays experienced by investigators can keep criminals in communities for longer periods The battle over crosses international borders The Toronto Police Service revealed to Scripps News and The Star how pedophiles are catching on and even coaching each other on how to use the latest advances to conceal evidence from authorities Toronto Detective Paul of the child exploitation entered one of the boy love online communities he regularly monitors that he says is one of many virtual meetup spots for pedophiles From his desk he located a conversation taking place that explained how American boy lovers have an advantage over those in some other nations noting how no U S laws exist that compel criminals to hand over their private passwords that police would use to decode their les The online user wrote in the U S not turning over passwords won't get you jail time It will get the cops to abandon the investigation against you without ling charges Just invoke the 5 Amendment and that s the end of it Another user provided advice to another boy lover instructing him to begin using a speci c text messaging service that text messages so that if police ever come knocking with a search warrant they won t get anything off of your phone when it comes to chat The Federal Bureau of Investigation has been trying to raise the alarm in the United States with repeated trips to Capitol Hill but has so far been rebuffed Technology firms and privacy advocates pushed back strongly launching a number of campaigns such as The initiatives petitioned the White House to side against groups advocating for a key for law enforcement to unlock devices if of cers have a search warrant In September Twitter signed on to the petition joining Dropbox and 72 others Last month the White House signaled it would not for now push for the legislation Privacy advocates such as the Silicon Valley-based Electronic Frontier Foundation declared victory You can't make aback door in a house that only law enforcement can enter said EFF staff attorney Nate Cardozo If Apple were to compromise the on the behest of the FBI for instance and I was travelling in China or France or Israel or Russia or Brazil I would no longer be secure in knowing that my iPhone wasn't being intercepted by the local authorities there Cardozo says that domestically businesses also could face an increased risk of corporate espionage if a back door were built in A research paper published this July by the Massachusetts Institute of Technology and co-writteu by 15 of the world s top and computer scientists concluded that requiring a back door for law enforcement would be akin to mandating insecurity Investigators left to deal with operating systems on cell phones face other mounting challenges Popular new messaging applications such as Apple s iMCssagc and Facebook's WhatsApp also automatically messages by default think is a good thing I think it provides security for the public in their online behaviors said Scott Tod deputy commissioner of the Ontario Provincial Police also think that there s an issue in regards to building a wall too high and a moat too deep Tod says about So percent of the digital communications officials in his Ontario of ce now obtain as evidence after a court issued search warrant are as good as garbage The Royal Canadian Mounted Police cites another case in which it attempted to intercept and read e mails among a group of high level drug traffickers Other law enforcement agencies wanted the Canadian police agency to either dismantle the 73 communication network or the messages With judicial authoriration in hand the RCMP dedicated thousands of hours to this effort but was ultimately not successful because of various technical and jurisdictional challenges Sgt Harold Pfleiderer a spokesperson for the RCMP wrote in an email Last week a working group of local state and federal officials formed that will begin to collect statistics across the nation said David Matthews the chair of the technology and digital evidence committee of the Association ofStale Criminal Investigative Agencies Matthews admits the law enforcement community as a whole has not prioritized collecting the statistics needed to communicate what they are seeing on the ground Ifyou have a tip or an update about impact on criminal investigations emoif and 1' ti Ll r a Angeio M Scripps Notionoi Investigative Producer contributed to this report This project wosjointiy reported by Scripps News and The Toronto Star 74 The Brittney Mills murder case has put Baton Rouge in the middle of the national cellphone debate Slaying draws BR into national debate By Danielle Madd OK nutlgl out t end Eaten Rouge detectives can't get into murder victim Brittney Mills iPhone which they hope holds clues to a killing that so far has stumped them Why would a cellphone be in a wagv that thwaits D ulo Iorn Fact-hock -- Brillnev local police investigating a homicide it The answer lies in the fallout from Edward Snowden's disclosure that the National Security Agency was vacuuming up Internet data and information from the several billion phone calls Americans made each day The revelation Apple and Google to allow people to make it impossible to open their smartphones without a pass code drawing Baton Rouge into a national debate If the owner of a phone dies as in Mills case and hasn't told anyone the pass code the manufacturers claim even they cannot access the device And if the owner of a phone is a criminal who refuses to tell authorities the pass code the same could hold true That can lock the contents photos text messages voicemajl email contacts call history iTunes material and notes inside the phone for good If you don't put in the pass code you can t extract human readable data from the phone said Jonathan Raiewski associate professor of digital forensics at Champlain College in Vermont Even ifyou took the chip and hooked it up to another device the information would still be Now government and the tech industry are at loggerheads Should companies guarantee the government ptu'ticularly law enforcement access to these fully 75 devices or will that weaken the software rendering it useless against hackers and foreign governments From FBI Director James Comey to East Baton Rouge Parish District Attorney Hillar Moore law enforcement has told Congress that companies must find a way to give access to police agencies with a search warrant But tech industries have asked President Barack Obama to embrace in its policies and resist regulating their security software In August 2013 Obama created an advison committee on cybersecurity after Snowden a former government contractor publicized government programs that collect electronic data on Americans and foreign governments The committee concluded the government and U S companies should not only embrace but also should increase their use of it to better protect data Despite law enforcement and intelligence concerns the committee further recommended the U S government sh0uld not subvert undermine weaken or make vulnerable software widely available on the market 'Ihose who support strong claim it prevents crime specifically hacking and protects personal property Apple and other players in the tech industry say the upgrades made to their software mends the trust they had with international companies that was damaged during the Snowden leaks Critics of the upgraded argue that while privacy is important law enforcement needs legal access to phones when an investigation requires it Criminals like the one who shot Mills go free when vital clues remain locked away on digital devices they say The East Baton Rouge Parish Sheriff's Of ce said it has begun to see more phones during investigations and Moore the parish district attorney recently wrote to in opposition to Apple s latest upgrade Apple advertises this as a plus for people who buy their phones Moore said noting such makes the phone ideal for criminals US Sen David Vitter a Republican said lawmakers are looking for a way to balance privacy with public safety but have not found a comprehensive solution The debate expanded well beyond individual privacy at a July hearing before the US Senate Judiciary Committee on which Vitter sits Peter Swire a professor at the Georgia Institute of Technology supports Swire argued at the committee hearing that secure communications play a vital role 76 in national security Jim Pasco executive director of the National Fraternal Order of Police says it s convoluted logic to believe that providing a way for police to open a cellphone could cause a national security problem noting that can stymie efforts to prevent terror attacks or investigate Such crimes after they occur It causes a much bigger national security issue when law enforcement can t get in he said In making that technology available to criminals you inadvertently make them harder to catch Harley Geiger senior councilman of the Center for Democracy and Technology a nonpro t that advocates on Internet issues argues that makes us safer even though it can make information more dif cult for law enforcement to access Our smartpbones and our Internet communications carry a great deal of sensitive content and it s important to protect that content from unauthorized parties he said There is a safety trade out no matter which way you go Geiger said companies like Apple and Google are simply responding to market demand Users consumers and businesses that use digital service are demanding strong security Geiger said Requiring US companies to allow access for government surveillance would put them at a competitive disadvantage in an international industry he said Manhattan District Attorney Cyrus R Vance Jr claims has changed the dynamic between law enforcement and the public and the change is for the worse saying 74 investigations in his jurisdiction have been disrupted because of enc1yption As it stands today Apple and Google have decided who can access key evidence in criminal investigations he told the Judiciary Committee bearing in uly He added that he d like Apple and Googlc to come to the table to discuss the problem but as of now they won't Pasco is on the same page is the kind of situation that tends to just simmer until there s some sert of horrible tragedy or we ve reached our crisis stage in sheer numbers of crimes not solved because of a lack of available data Pasco said 77 Moore Baton Rouge s district attorney says the problem hits home quickly with the Mills family Mills 29 and eight months pregnant was fatally shot April 24 at her Ship Drive apartment Authorities believe Mills opened the door for someone who wanted to use her car and was shot when she refused Doctors delivered her son Brenton Mills who died a week later Investigators said the shooter likelj r was someone Mills knew They ' have looked to her for evidgnge but her iPhone uses i088 software that blocks anyone without the pass code IPhone owners can choose to use Touch ID which unlocks the phone with the owner s ngerprint but Mills used only a pass code Moore said Apple allows only a few consecutive pass code guesses before it returns the phone to factory settings with none of the user s information on it Moore said investigators are increasingly encountering problems with On several occasions police have tried to search for information about drug dealers from the phones of people who fatally r overdosed but did not know the access codes he said Sgt Brian J Blache of the East Baton Rouge Sheriff s lOf ce said as more people use cellphones for everyday tasks the information stored in them will be increasingly useful About 90 percent of the Sheriffs Of ce cases involves some type of cellphone or computer analysis Blache said If nothing can be extracted from a cellphone Blache said the Sherist Of ce will lock it up in evidence with the hope that technology down the line will allow them to open it later Law enforcement of cers can check other devices including computers to see if people backed up cellphone data there or virtual platforms where people may store emails call logs and in some cases old text messages from their phone Often information about where someone has been is available from cellphone service providers or from Internet app companies that serve up information based on the user s location Getting that information can he obtained with awarrant But Blache noted some of that data depends on what location settings people select Also Rajewski said Internet companies and mobile service providers keep such 78 informatiOn for business purposes not speci cally for law enforeenient s bene t and the retention period varies from company to company He said the higher level of security will be more widespread moving fomrard as people buy new phones with the software needed to mn the programs Meme said a law should be passed prohibiting manufacturers from selling smartphones and mobile devices that the government cannot access Paseo the director of the National Fraternal Order of Police agrees that some sort of law needs to be put in place Every day and week that we waste time means more erimes unsolved and more terrorist incidents unprevented he said Copyright@ 2015 Capital City Press LLC - 7'290 Bluebonnet Blvd Baton Rouge LA roam - All Rights Reserved 79 Mr RICHMOND Thank you Mr Chairman And let me just say and Director Comey you have mentioned the Brittney Mills case a number of times and I just want to paint the scenario for everyone in the room and put a face with it This is Brittney Mills and this is Brittney Mills almost 8 months pregnant with her daughter In May of last year Brittney was murdered in my district She was a mother She was 8 months pregnant with her second child at the time Someone came to her door and killed her and a couple days later her unborn child--or born child also died And according to her family and her friends she kept a very detailed diary in her phone And her family who are here today Ms Mills Ms Barbara Mills will you please stand and Tia and Roger her family would like the phone opened so that our district attorney who is also here today--thank you for standing--our district attorney who is also here today Hillar Moore can use that to attempt to find the murderer who committed this crime And I guess my question is we balance privacy public safety and criminal justice but are we in danger of creating an underground criminal sanctuary for some very disturbed people and how do we balance that Mr COMEY We are in danger of that Until these awesome devices--and that's what makes it so painful They're wonderful Until this there was no closet in America no safe in America no garage in America no basement in America that could not be entered with a judge's order We now live in a different world and that's the point we're trying to make here Before we drift to a place where a whole lot of other families in incredible pain look at other district attorneys and say ''What do you mean you can't you have a court order '' before we drift to that place we've got to talk about it because privacy is awesome but stopping this kind of savagery and murder and pedophilia and all the other things that hide in the dark spaces in American life is also incredibly important to us That's why this conversation matters so much but it's also why we have to talk to each other There are no demons in this conversation we care about the same things But it is urgent and there's no more painful circumstance to demonstrate it than in the death of that beautiful woman and her baby Mr RICHMOND Well and I do appreciate your saying we have to talk to each other because just in the small time that I was able to put the representatives of Apple and the district attorney in the room I think we made some progress and maybe some alternatives and maybe we'll get somewhere But it is a very difficult balancing act and I think the people from Apple are very well intentioned and have some real concerns But let me ask you this I took a congressional delegation trip over to the Ukraine And when we landed our plane we were on the runway and our security advisors came on to the back and said if you don't want your phone hacked and people to have access to your text messages your pictures your emails and everything else we advise you to power your phone off and leave it on the plane And no one is in close enough proximity right now to do it so if you need to make a call make a call but when we get closer to the terminal you need to power that phone down 80 So does Ukraine have better technology--well they were really worried about Russian hackers But does Russia have that much of a technology advantage over us that they can get into my phone while I'm on it and it's in my possession and we can't get into a phone that we have in our possession Mr COMEY The difference--and I'm going to be careful what I say in an open setting--is that some countries have different control over their infrastructure and require providers in their country to make accommodations that we do not require here to give them greater surveillance capabilities than we would ever imagine in the United States That's the first thing The second thing is we are a rule of law country The FBI is not cracking into your phone or listening to your communications except under the rule of law and going to a judge Those are the two big differences But countries have capabilities and in part based on accommodations that device makers and providers have made in those countries that are different than in this country Mr RICHMOND Thank you Mr Chairman I see my time has expired Mr GOODLATTE The Chair recognizes the gentlewoman from Washington State Ms DelBene for 5 minutes Ms DELBENE Thank you Mr Chairman And thank you Director Comey for being with us and for all of your time I've worked my career in technology on email and mobile communications and constantly heard from customers both consumers and businesses and even the government to make sure that information was protected and that devices were secure And in your testimony you state that you're simply asking to ensure that you can continue to obtain electronic information and evidence and you seem to be asking technology companies to freeze in place or revert back to systems that might have been easier to access but don't you think in general that that's much--an oversimplification of this issue because we all know that bad actors want to exploit vulnerabilities to break in to any number of things from a phone a personal device to our power grid These things aren't static They're changing constantly and they're getting smarter every day The bad actors are getting smarter every day and we need to be smarter every day in terms of protecting information So in that type of environment how would you expect the technology company not to continue to evolve their security measures to keep up with new threats that we see Mr COMEY First of all I would expect security companies and technology companies to continue to try and improve their security That's why it's important that all of us talk about this because it's not the company's job to worry about public safety right It's the FBI's job Congress's job and a lot of other folks in the government so I don't put that on the companies But the other thing that concerns me a little bit is this sense that if we have a world where people comply with government warrants it must be insecure And I don't buy that because there are lots of providers today of email service of tech service who have highly secure systems who because of their business models visualize the information in plain 81 text on their servers so they comply with court orders I have not heard people say their systems are insecure They simply have chosen a different business model So I actually don't think it's--again a lot of people may disagree with me I actually don't think in the main it's a technological problem It's a business model problem That doesn't solve it but that gets us away from this it's impossible nonsense Ms DELBENE But we know more and more in fact we're seeing--we're talking about phones today but we are talking about the growth in the Internet of things of more and more personal devices where security will be even more critical and so it's hard to say--you're talking about a world where it's confined to the way the world works today I think that absolutely is not the situation that we're facing We're seeing evolution every day and these are devices that are connected to networks and information is flowing and that information might be someone's financial information or personal information that if it is exploited would create a security issue itself Mr COMEY I agree Ms DELBENE So don't you believe that encryption has an important role to play in protecting security Mr COMEY Vital Ms DELBENE So now when we've talked about what role Congress plays versus what role the courts would play and you've kind of talked about both in different scenarios You've talked about privacy versus security and that Congress should play a role there but that the courts should decide whether or not there's a security breach if there's a piece of technology that breaks into a device and whether or not there's a concern that that will be widely available Yet the tension isn't really between just privacy and security It's between security and security and protecting people's information So how do you--where do you think Congress plays a role versus the courts when you've talked about both of them in your testimony today Mr COMEY I think the courts have a job to in particular cases interpret the laws that Congress has passed throughout the history of this country to try and decide The government is seeking this relief does that fit within the statute That's the courts' job and they're very very good at it The larger societal problem we have is this collision--that I think you've said well--between privacy and security very difficult to solve it case by case by case We have to ask ourselves how do we want to govern ourselves If you are a manufacturer of devices in the United States or you provide communication services in the United States what are our as a country what are our expectations of you and demands of you It's hard for me to see that being worked out on a common law basis honestly but it's going to be because the issue is joined every single day in our law enforcement work If nobody else gets involved the courts will have to figure it out Ms DELBENE This isn't just an issue of U S companies alone because clearly there's access to technology that could be developed in other countries that we'll not have access to and that's widely available today and people can use But also then it is important 82 we have laws that are centuries and decades old that have not kept up with the way the world works today and so it is very important that Congress plays a role because if courts are going to be interpreting those laws and those laws were written with no awareness of what's happening today then Congress needs to play a role of making sure we have laws that are up-to-date and setting that standard so that courts can then follow Thank you I yield back Mr Chair Mr GOODLATTE The Chair thanks the gentlewoman and recognizes the gentleman from New York Mr Jeffries Mr JEFFRIES Thank you Mr Chairman And thank you Mr Comey for your presence here today And as one of my colleagues mentioned your candor and open dialogue and communication is much appreciated and it's not always the case with high-level government witnesses and others You testified today that you don't question Apple's motives in connection with the San Bernardino case Is that correct Mr COMEY Correct Mr JEFFRIES And you also testified that there are no demons in this conversation true Mr COMEY Correct I hope not Mr JEFFRIES But the Department of Justice has questioned the company's motives in defending the privacy of the American people Isn't that right Mr COMEY I don't know that they've questioned their motives in the sense that attributed sort of that they're acting with evil intent or something I think they've--I remember a filing the department said where they think a lot of Apple's position has to do with its market power which I frankly is not an illegitimate motive Mr JEFFRIES In fact in the motion to compel that you referred to I believe the prosecutor said that ''Apple's current refusal to comply with the court's order despite the technical feasibility of doing so appears to be based on its concern for its business model and public brand marketing strategy '' Is that the statement that you're referring to sir Mr COMEY Yeah And I think that's--that's fair I bet that's accurate Apple has a legal obligation--because I used to be the general counsel of a public company--to maximize shareholder value They're a business and so I would hope that's part of their motivation And it's not a bad thing if it's entirely their motivation Their job is not to worry about public safety That is our job all of us in this room who work for the government Mr JEFFRIES William Bratton is the police commissioner of the New York City Police Department Is that right Mr COMEY Yes Mr JEFFRIES That's the largest department in the country Mr COMEY Yes Mr JEFFRIES And he's one of the most respected law enforcement professionals in the country Would you agree with that Mr COMEY I agree with that very very much Mr JEFFRIES Now at a February 18 press conference in New York City publicly accused Apple of corporate irresponsibility Are you familiar with that remark sir Mr COMEY I'm not 83 Mr JEFFRIES Okay Do you agree with that strident statement that Apple is engaging in corporate irresponsibility---- Mr COMEY I'm---- Mr JEFFRIES continuing By vindicating its---- Mr COMEY I don't know that Bill said that but I'm not going to characterize it that way I don't think they're acting irresponsibly I think they're acting as a corporation in their self-interest which is the way--which is the engine of innovation and enterprise in this country Mr JEFFRIES Fundamentally as it relates to the position of those of us who are on the Judiciary Committee as well as Members in the House and in the Senate guardians of the Constitution this is not about marketing or corporate irresponsibility correct this debate Mr COMEY I hope not I mean I hope part of it is and that's a voice to listen to but they sell phones They don't sell civil liberties They don't sell public safety That's our business to worry about Mr JEFFRIES Right But in terms of our perspective this is really about fundamental issues of importance as it relates to who we are as a country the Fourth Amendment of the United States Constitution the reasonableness of government intrusion the rule of law the legitimate centuries-old concern as it relates to government overreach and the damage that that can do This is fundamentally a big picture debate about some things that are very important to who we are as a country correct Mr COMEY I agree completely Mr JEFFRIES Okay Now in terms of the technology that's available today Americans seem to have the opportunity to choose between privacy or unfettered access to data which can reveal the far reaches of their life to a third party to a government to a bad actor Would you agree that there's an opportunity that the technology is providing for Americans to choose privacy Mr COMEY I don't agree with that framing because it sounds like you're framing it as we either have privacy or we have unfettered access by bad actors I don't accept that premise Mr JEFFRIES Okay So let me ask a few questions One of the obstacles to unfettered access is the passcode correct The passcode Mr COMEY Yeah Mr JEFFRIES A four-number or a six-number passcode Mr COMEY I naturally quibble because I'm a lawyer but I'm just stuck on ''unfettered''---- Mr JEFFRIES Okay Mr COMEY continuing But one of the obstacles to access to a device---- Mr JEFFRIES Let me drop ''unfettered '' Mr COMEY Okay Mr JEFFRIES The passcode is an obstacle correct Mr COMEY Correct Correct Mr JEFFRIES Now you can choose a passcode or choose not to activate a passcode correct Mr COMEY I think that's right 84 Mr JEFFRIES Okay Now whether you back up your system or not is an issue as it relates to access correct In other words if you don't back up your system you don't have access correct to the cloud Mr COMEY Yeah I think if you don't back up your system to the cloud there's nothing in the cloud that could be obtained by a warrant Mr JEFFRIES Right Now with respect to auto erase that is a choice that's being made In other words you have to actually affirmatively choose auto erase If you didn't choose it in this particular case or in any other case eventually your computer is powerful enough to get access to the data correct Mr COMEY I think that's right for the 5C I think that's right And folks from Apple could tell you better I think for the later models it's not a choice but I think it's a--I'm reasonably confident it's a choice for the 5C Mr JEFFRIES My time has expired but I think it's important as we frame this debate to understand that it is actually the American citizen that is choosing on at least three different occasions in three different ways the value of privacy and that's something that we should respect as Congress attempts to craft a solution Mr COMEY Okay Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentleman from Rhode Island Mr Cicilline for 5 minutes Mr CICILLINE Thank you Mr Chairman Thank you Director Comey for your service to our country Thank you for being here today and for the outstanding work of the men and women at the FBI We all of course acknowledge the incredible horrors of the San Bernardino attack but I think in many ways what we're struggling with as Ms DelBene said not necessarily security versus privacy but security versus security And the real argument that the danger that exists for the misuse of this new technology by foreign agents by terrorists by bad actors by criminals will actually make us less safe in the long term And while it might achieve your objective in the short term in this particular case that the implications in terms of our own national security and personal security pose greater dangers I think that's what at least I'm struggling with I appreciate you said this is the hardest question you've confronted because I think it is a hard one But the first thing I want to ask is this is different would you agree than all the examples that have been used about producing items in your custody This is a different kind of one because it's actually compelling a third party to produce and create intellectual property which doesn't exist today Mr COMEY I understand that to be Apple's argument I don't know enough about the other possible comparisons to give you a thoughtful response but yes I understand that Mr CICILLINE But don't you think it's hard to even imagine how a court ultimately enforces that because you have to sort of get into the head of the engineers to figure out did they actually comply with what the government order is directing them to create 85 I mean I'm not saying it's not something you're not allowed to ask for but it is different it seems to me than simply asking people to produce that which they are in possession of custodians of Mr COMEY I see that I mean I heard someone earlier say there's a difference between a landlord who has a key in his pocket and you say ''You got to give us the key '' and ''You don't have one Go make one for that door '' Mr CICILLINE Well this will be more than---- Mr COMEY And the question for the judge is what's---- Mr CICILLINE Not just go make one because that knowing how to make keys exists but to develop a whole new technology and intellectual property So I just want--I raise that because I think we have to acknowledge it's different and then decide what to do with it Mr COMEY Yeah Mr CICILLINE But in addition to that you said repeatedly that the government doesn't have the ability to do this already And as you know there was a decision yesterday by Magistrate Judge Orenstein--I'd ask unanimous consent that that memorandum and order be made part of the record--in which he actually---- Mr GOODLATTE It already is part of the record Mr CICILLINE Okay Which he--and he goes through and says the All Writs Act doesn't apply CALEA prohibits this by omission and I think in a very clear way But in addition to that he goes on to say that the government argued in an unrelated case that the government actually has the ability to do this the Department of Homeland Security Investigations that they are in possession of technology that would allow its forensic technicians to override the passcode security feature on the subject iPhone and obtain the data So I think this is a very important question for me If in fact-- is it in fact the case that the government doesn't have the ability including the Department of Homeland Security Investigations and all of the other intelligence agencies to do what it is that you claim is necessary to access this information Mr COMEY Yes Mr CICILLINE Because it is very--the answer's yes Mr COMEY That is correct And I don't know I think--I could be wrong but I think the phone in the case from Brooklyn is different maybe both the model and the IOS the operating system is different but for this--I can tell you and again people know the sound of my voice--if you've got an idea let us know but 5C IOS 9 we do not have that capability---- Mr CICILLINE Okay Mr COMEY continuing Again to disable The problem is we can get into that phone with our computing power if they take off the auto-erase and the delay-between-guesses function We will get into that phone Mr CICILLINE So do you agree Director Comey that if there is authority to be given to do what you're asking that that authority has to come from Congress Mr COMEY No I don't agree with that Mr CICILLINE So where do you think the authority comes from 86 Mr COMEY Well the government's already asked the court and made the argument under the court that the All Writs Act vests in the judiciary the ability to order this relief That's what the court case is going to be about Mr CICILLINE So if the ruling made yesterday remains which rejects the notion that the All Writs Act applies and that CALEA in fact is congressional intention on this and the fact that we didn't act on it means you have authorization has not been provided then would you agree that Congress is the only place that can authorize this and if so what would you recommend we do What would that look like as we grapple with this question Because I can tell you for me having read that I think CALEA is clear it doesn't authorize it It's clear the All Writs Act doesn't So if there is to be authority assuming we decide that there should be it seems it must come from Congress As the Director of the FBI what do you think that would--what would your recommendation be that would respond to what you see as your needs but also the national security interests of our country Mr COMEY Yeah I'm not prepared to make a recommendation but I think I get your question now If the judges are right you that can't use the All Writs Act for this relief what should Congress do to grant the relief And I'm not prepared to tell you specifically what to do I do think it's something that Congress is going to have to wrestle with Mr CICILLINE Thank you I yield back Thank you Mr Chairman Thank you Director Mr GOODLATTE The Chair would ask unanimous consent that letters from the Computer Communications Industry Association dated February 29 a statement for the record from Reynaldo Tariche President of the FBI Agents Association and a letter dated February 29 from the American Civil Liberties Union all be made a part of the record The information referred to follows 87 0 Computer 8 Communications @622 Industry Association Tech Advocacy Since 1972 February 29 2016 The Honorable Bob Goodlatte The Honorable John Conyers Chairman Judiciary Committee Ranking Member Judiciary Committee United States House of Representatives United States House of Representatives Dear Chairman Goodlatte and Ranking Member Cenyers The technology consistently cooperates with law enforcement in its important work to deter and investigate crimes and terrorism Companies large and small comply with lawful and appropriately scoped legal orders and devote significant rcsoarces to responsibly aiding govcmm on efforts to combat extremist and exploitative con tent The ongoing debate about the availability and use and other security technologies in digital devices and services often Focuses on a narrowiy defined trade oft between users privacy and our collective security That framing underrepresents other vital and legitimate equities at stake Our system of limited government is predicated on the principle that ends do notjustit'y all means While the govemment s goal is to obtain possibly important investigative information it seeks to do so through methods that will undermine other goals that botlt the government and the public otten consider to be ot equal or greater importance including personal safety security and Freedom online The public has chosen to keep signi cant portions of their personal and nancial lives in digital services and devices But users worldwide also see the growing dangers of criminals hackers terrorists and oppressive or intrusive regimes As a result they have demanded that the caretakers of their personal information develop the tools to stay a step ahead of those bad actors Internet users are growing increasingly vigilant fundamentally the public must be able to trust that companies will do their part to keep sensitive data safe That trust1 and more importantly the aggregate personal well-being and security of the public are risked when service providers and device manufacturers can be asked or compelled to weaken the digtl l security technologies that users demand Safety expression and commerce online are all threatened by creating vulnerabilities desired by the same bad actors from whom the government seeks to protect us I recognize the government's desire to test the limits of the law in its efforts to prevent and invesrigate serious crimes However a Fulsome consideration of the public interest makes clear 900 17 Street NW Suite 1100 Washington DC 2000-5 P 202 703-0070 F 202 703-0534 88 0 Computer 3 Communications CCE Industry Association Tech Advocacy Since 1972 that the government's efforts should not come at the expense ot the rights and overall security of the public and digital ecosystem Thank you for your attention Si oet'el gimlob Ed Black President CEO Computer Communications Industry Association 03' House Judiciary Committee 900 Street NW Suite 1100 Washington DC 2000-5 P 202 783-0070 F 202 703-0534 Statement for the Record Reynaldo Ta riche President FBI Agents Association The Tightrope Balancing Americaus Security and Privacy United States House of Representatives Committee on the Judiciary March 1 2016 Fourteen innocent people were killed in San Bernardino on December 2 2015 in the nation s deadliest terrorist attack since 9H I Evidence relating to that crime might exist on the iPhone used by the terrorist Syed Rizwan arook Agents thousands of' whom I am honored to represent are investigating this crime and others like it In this case Apple has refused to abide by a federal court order requiring the company to assist the FBI with accessing the data on Farook s iPhone purSuant to a warrant Apple s decision re ects a blatant disregard for the work ot'FBl Agents and constitutes a threat to national security First Apple has failed to acknowledge that their customers are also ottr customers It is ottr sworn duty to keep our customers the American people safe Our duty is undertaken while adhering to Constitutional provisions barring unreasonable searches and seizures protecting privaCy Apple s job is undertaken while adhering to an economic principle a return on investment White pro ts may dictate Apple s decisions the Constitution dictates ours Second Apple s actions now will embolden criminals providing a safe haven for their activities This includes the cyber-criminals It would be unwise to disregard established search and seizure procedures to give Apple products special treatment Terrorists child pornographers and others criminals should not escape lawful warrants because corporations use the promise of secure communications as a marketing tool Third while Apple now claims openness to public dialogue about the company s technology their actions belie their words In November 20 5 the FBI Agents Association the Attorney General of OlliCL the National District Attorneys Association and the National Sheriffs' Association jointly wrote to Apple to engage in the discussion you now seek However Apple did not bother to respond to that request Rather Apple and other technology companies have spent millions on lobbying and public relations and have attempted to leverage the industry s signi cant in uence to derail Congressional debate 90 Page 2 Founh if Apple is unwilling to act then we urge Congress to do so There are ways to resolve this problem and the solution is not based on the false choice between absolutely scoure communications and a wide-open door Apple has worked with law enforcement to extract data from iPhones scores ot times previously and we urge the company to do so again Absent this1 Congress should enact legislation requiring companies to incorporate options into their technology that prevent smartphones front serving as barriers to lawfully- issued search warrants Given existing technologies this is a reasonable and practical request Finally the ability to lawfully obtain the private records of criminal conspiracies is a time- tested and indispensable part of effective law ent orcement The papers and letters of the past are being replaced by the electronic data held on Apple devices Apple is choosing to provide modern criminals with a tool that past generations of criminals never had an impenetrable door that is booby trapped to destroy evidence A homeowner could not reject law enforcement of cers executing a warrant by claiming they don t want to unlock the door Likewise Apple should not be able to stonewall the FBI and the courts simply because the company has decided not to unlock its iPhones We applaud Apple s innovative spirit and customer dedication Please bear in mind that their customers are also our customers customers who FBI Agents are sworn to protect from criminals and terrorists Our customers deserve a means of ensuring that the drive For pro ts does not come at the cost of public safety Tire FBI Agen is Axsocim m FBIAA is on organization timiicnied i0 providing summit-i and to active opacioi' Agents rifii're Fedora Harem of investigation Membership incitm'es more than i 3 000 rrciit'e trirtt irmer' specie Agents refine For more information piano visit Emitter Patti Nrrihnmoii 202-8234 i'i 4 media it org CIVIL LllE TlEs UNION OFFICERS LED BI 91 its ACLU Elvtl LIBERTIES UNION February 29 20 I 6 The Honorable Bob Goodlatte Chairman House Judiciary Committee Rayburn House Office Bldg Washington DC 205 IS The Honorable John Sony-en's lr Ranking Member House Judiciary Committee 2 3Ei Rayburn House Of ce Bldg Washington DC 20515 RE House Judiciary Committee Hearing on The Tightrope Balancing Americans Security and Privacy Dear Chairman Goodlatte Ranking Member Conyers and Members of the Committee On behalf of the American ICivil Liberties Union we submit this letter in connection with the March hearing The Tightrope Balancing Americans Security and Privacy Over the last decade the technology industry has made signi cant progress in protecting the security of Americans private data including electronic communications through enhanced security features and technologies This increased security has not only paved the any for advanced technological and economic development but has been critical to ensuring free expression and an open Internet Unfortunately there have been calis by some to underminc rather titan support these security advances Speci cally the FBI is currently seeking to compel Apple to develop new software that would allow the FBI to hack into the work phone of one of the San Bernardino shooters One magistratejudge in New York has already ruled that such a request is not authorized by the Ian noting that Congress has explicitly declined to provide this authority Another case on this issue is pending HECTOR 5 1 Fer nearly centun' the ACLU has been our nation s of working in nouns legislatures and communities to defend and the individual rights and liberties that the Constitution and the lens guarantee everyone in this country The ACLU takes up the toughest eiin liberties cases and issues to defend all people from got'emntent abuse and nt'eneacll With more than a million members activists and supponers the ACLU is a nationu ide organiration that lights tirelessly in all St states Puerto Rico and Washington D C for the principle that every individuals rights must be protected equally under the law regardless ol lace religion gender sexual orientation disability or national origin In the Matter ofthc Search ofan Apple iPhone Seined During the Execution ofa Search Wanant on a Black Lents Califomia License Plate No IS-tt-tl hrl CD Cal Feb to zero 3 Devlin Sides it-ft ripple in Drug use hilt-living WSJ Feb 2 3 till sides-u tilt-a le-tn-dru Lease-nucleic v-locked- ltonc- 4567859 Memorandum and Order In Re Order Requiring Apple Inc to Assist in the Execution ofa Search Warrant Issued by this Court Eli 5 5920207 20 lo available at mt 92 The ACLU opposes the FBI efforts in the Apple case They are unauthorized unconstitutional and unwise We urge the Committee to reject any proposal that would grant the FBI the authority to eonscript technology suppliers into hacking or building a backdoor into the devices of users I Advancements in and Other Security Features In recent years Apple has added security features and enhanced on its mobile devices - suspendingI to increased consumer demands For greater privacy and security These Features are designed to protect consumers from criminals hackers or even malicious foreign govenunents The more recent versions ofthe Apple operating system I Allow consumers to turn on a Feature that makes the contents of the phone inaccessible in the event that a PIN code is incorrectly entered ten times By default create a time lag between incorrect PIN entries to prevent a malicious actor from bombarding the phone with numerous PIN attempts in a row 0 Require the user's PIN to unlock and the data stored am the phone In other words without a user's PIN no one including Apple can unlock an iPhone' and 0 Expand the categories of data protected by industry-standard to include photos text messages the address book and several other fonus of previously less protectcd private data l Many of these changes mirror the industry trend of providing consumers enhanced security through Last September Googic announced it would turn an disk by default in the next version ofits Android operating system heugh this currently remains an opt in feature due to reduction in speed suH'cred by many Android devices when Is used In addition is being adopted to protect data as it is transmitted over the Major companies like Google Faeebook and Twitter all use and other transport technologies to ensure that communication their customers and their own servers are secure The federal got-eminent has Followed the technology industry's lead and announced that all US govemment websites still use within two years Similarly To members of Congress use by default on dieircf' cial umlisitcs T Apple had for several years included such strong technology in its mobile opcmting system llDu'C t'Cr prior to last year this method of only protected in few categories ofdaln stored on devices such as entail messages and data created by third party apps Cyrus Fariynr lppi'c Hepatitis Ham iz'itcri-ption inter linking Handover it ops'jfoot Ail-15 Sop-1 its 2lII-l 1 1 authorisations snitch paler 31 1w 1 911 cons-meow i Andrett Cunningham ramps Interti- exempting - i's-ir Loin-pup Hen-ices by iJe mtr ARE Mar 2 mm liljtl lft j'lyriu Loin-cucn lethuhi' See The Ci Ill-Fletch cio gm'i last visited Apr 29 2 I 5 The American people expect get-eminent nebsiles to be secure and their inleiactions with those websites to be private Hypertext Transfer Protocol Secure offers the strongest privacy protection available for public ueb connections with today s interact The use of reduces the risk or inteiception or codi cation of user interactions with got-eminent enlinc Eric Mill Th l I ll-fit Apr 13 2 115 93 The adoption of these technologies has yielded signi cant bene ts to consumers businesses and agencies providing greater protection from the ever-increasing threat posed by cyber criminals and foreign governments II The Apple Case Currently the FBI seeks to create legal precedent that would enable it to force private companies to develop software to back into its customers' devices and access data In the case at hand the FBI argues that the '89 All Writs Act grants it the authority to compel Apple to Create a mechanism that allows the FBI to circumvent the existing security features in the iPlione to to contents ofthe recovered phone As a practical matter to comply with this order Apple will need to do three things It Create new software designed to circumvent security features which create a time lag between incorrect PIN attempts or make the contents of the phone inaccessible following ten incorrect PIN entries I sign the software which indicates that the software has been developed and validated by Apple Such a signature is necessary to push the new software onto the target phone since as an added security feature il hones will not run software that has not been validated by Apple and - Take steps to transmit the newly developed software onto the target phone If the FBI is successful the legal precedent established by this case would apply to all companies devices or criminal investigations Thus it could be used to compel other companies to build mechanisms to hack into smart televisions computers or even medical detiees For example law enforcement could require a company to remotely turn on a camera in a smart television to assist with a dnig investigation or require a car company to deliver malicious so uare to a car's GPS system to allow tracking as part of a tax evasion investigation The FBI Efforts to Comps Apple Would Place an Unconstitutional Burden on Private Companies If successful the FBI's efforts in this case would represent an unauthorized and unconstitutional expansion of' the government s authority While the government can demand the production of relaxant evidence the giving testimony or the entry necessary to search for and seize evidence law enforcement does not hold the general pen or to enlist private citizens or companies as its agents n this case Apple manufactured the iPhone but it does not possess or control the personal data stored on it or even have existing software or capabilities capable of accessing such data Thus in order to comply with the request Apple's engineers would have to write new software speci cally designed to subvert the security measures they built into the phone Forcing Apple to take such action would violate the Fifth Amendment The Fifth Amendment protects innocent third parties from being conscripted by law enforcement except in narrow circumstances The present case clearly extends beyond these limits and raises troubling questions about the authority of law enforcement of cials Proposals like the FBI's are also a dramatic expansion of a dangerous idea- that the private sector should be responsible for building the govemment s surveillance Such proposals 94 snitch the burden for surveillance From the government to companies and through them to their customers the American people Consumers would be forced to purchase fundamentally insecure products with little ability to protect their communications and stored data from cyberseeurity threats Not only does this represent an improper government intrusion but it threatens to eliminate one of the primary privacy protections that Americans have enjoyed for the last two centuries namely the sheer dif culty of mass Surveillance As a practical matter the cost to lav enforcement of surveillance has provided real privacy protection by forcing Iau enforcement to determine whether investigations merit the use of scarce resources Shifting the costs and burdens of sun'eillanec onto the private sector weakens this critical protection IV The FBI Efforts to Compel Apple Threaten Free Expression and Human Rights The FBI's actions in this case also pose a threat to free expression and global human rights The legal precedent the FBI seeks to establish in this case would ensure that the government is able to demand access to virtually- any electronic communication or piece of data regardless oF the device or so n-are that an individual uses Opening all electronic communication to the possibility of government scrutiny or making such communication more easily subject to private hacking could have a chilling eFfeet on free speech dissuading the public journalists or activists from engaging in protected speech In the past we have seen how the Fear of outside scrutiny whether by government or otherwise has made it more di 'ieult for prominent journalists to communicate with sources leading to self-censoring and hindering reporting on critical issues especially those related to national security where government secrecy and the potential for the abuse of civil liberties are at their highest 5 Indeed U S Femign policy has also long supported eITorts to ensure anonymous and secure communication as a way of promoting free expression human rights and an open intemet around the world As part of this policy the U S government has supported projects that provide secure communications to joumalists and human rights activists who are o en targeted by repressive regirncs 1 For example the U S govemment has helped to create tools that provide end-to-end which provide greater Securin to users The FBI's attempts in this case are contrary to this policy and open the door to repressive regimes demanding that American companies take the same burdensome actions to provide access to their citizens' devices in order lzjil i rhz r'hii Drill- er Iii-itch- iuNr i'Fliit rtn'rir PEN AMERICA Nov 12 impure p_cn ory silcside I auln tile siCIMg'natlEFl ccts ACLU Human Rights Watch Liheri'lt' 10 Monitor Haw Large-hint is ManningJournalism Lair Democracy 22 43 2014 hips n'n'n I-I- I Holcomb dl Amy Mitchell Investigative Journalists and Digits Security and 'Inrnges' in Beirm'mr Ra -trim C't'tt Feb 5 213 I di ital-security Size cg Iborn the Program Gill-2N TI-ZCII Fl noting creation of the Open Technology Fund with US funding and OTF's goal of seeming recess lo the Intemcl with tools 1 WintsApp is adopting mechanisms developed by Open Whisper Systems which is funded by In Open Toclmologv Fund Sec Projects 0PM Fl Tit Open II irisper Partners rt'ilir I I inns I pp to Provide Hriir-tu-l'inri OPEN WEIISFFR Swami-3mm Nov lit ZtJI-li ploggnluitsapm see also White House National Security Strategy 21 Feb Int iin v- IIrtchonsc I 5 Irrational scenn n H 3 l' The United States is countering this trend by providing direct support for civil society and by advocating rollback of Ian-s and regulations Iltat undennine citirzens' rights We are also supponing technologies that expand access to infonnatiort creahle recdoin oi expression and connect civil society groups in this light around the uorld J 95 to target dissenters suppress Free expression or commit other human rights violations V The FBI Efforts to Compel Apple Would Harm Cyberseetlrity The FBl's efforts to compel Apple to undermine the security of its product will erode consumer con dence and put customers at risk Forcing Apple to use its software update capability to undermine the security of one of its devices will make consumers wary of' so u'are updates resulting in decreaSed eyberseeurity In retrent years there have been enormous strides in pushing software updates to consumers In many cases these updates help to patch or repair vulnerabilities in consumers devices that leave them vulnerable to hackers The viability of this software update apparatus depends in pan en consumers having con dence that these updates are genuine- and not malicious code in disguise Should consumers fear that these are not legitimate updates verified by companies they may simply stop dexx'nloading them In an age when data breaches and identity theft are increasineg common such a shift in consumer behavior would have disastrous results for cybersecurity Moreover simply by creating this software Apple is putting its customers at risk Should anyone be able to replicate or steal such software it could leave all iPhones vulnerable Such a risk is not theoretical prominent technology companies are routinely targeted by malicious actors n 2009 Google and Microso 's lav enforcement Surveillance teams were compromised by Chinese hackers who gained access to a sensitive database with years worth of' information about the US gvavernmenl's Surveillance targets In llJl-l Microsoft's Surveillance team was compromised again this time by the Syrian Electronic Army In 2012 a backdoor that was inserted into JuniperDS software in l ll was eotiipromised opening customers network traf c to an unknown adversary n This is in part why Apple's recent move toward strong device is so critical it ensures that consumers' information is secure even if Apple's own security systems are compromised At a time when cybersecun'ty threats are at the top of otir national security agenda the government should be encouraging companies to enhance security not calling on companies to take actions that undennine the securin and privacy oftheir users Thus we urge the committee to press the FBI to abandon these misguided efforts and instead invest in policies that encourage the adoption of strong and other digital security technologies If you have any questions please feel free to contact legislative Counsel Neema Singh Guliani at 312-675-2322 or nguliani teaching Sincerely 1' Ellen Nakashima Wines-e Hoe-hens he fim'ner-lccess in Sum-ans than Ewie'l'rris' S'rrv Was Post May 20 ml Lunar Minn seeurrl ho-bneaelied-uoo gle gained-acct ss-Io-scnsil'u I 3i'll a'2I Jf5 FILER-M344 le2-H9cU-3be31195fc Tti'l sten' lurlil To n1 Warren l bit inns i't't'rirt Electron trun- into dept-3 hitter TI VIaRtili Ian 15 I4 hunu lu ti milieu-ereccouv ztl 4rli l Fifi svrr'an-eleclronic-nrutv Dr D Green Assistant Professor Dept of Computer Science Johns Hopkins Univ Keynote Address in Trust at the Network and Distributed System Securityr posinm Feb 22 2016 96 Karin Juhansun Director Washington Legislative Omcc if 3 $5 Neema Singh Guliani gislaiivc Counsel 97 Mr GOODLATTE Director Comey you've given us 3 hour--oh I'm sorry I'm jumping the gun here The gentleman from California Mr Peters is recognized for 5 minutes Mr PETERS Director Comey--I want to first of all thank you Mr Chairman I want to thank you for being here I wanted to just conclude by saying that I did hear very--did listen carefully to your opening statement I thought it was very constructive I think you appreciate the two objectives we have here which is to both preserve privacy and to deal with San Bernardino You've heard the comment hard cases make bad law They're still hard cases and the problem we see in terrorism now is the onesies and the twosies And the notion that we would have invulnerable communications I think is something that we should all be concerned about I hope that you and the panel to follow you will all be part of a constructive discussion to figure out a way to serve both objectives and that the lines won't be too hard drawn on either side so we can do that And I appreciate Mr Chairman the chance to thank Director Comey for being here and look forward to the next panel Mr COMEY Thank you Mr PETERS Yield back Mr GOODLATTE The Chair thanks the gentleman Director you've donated 3 hours of your time to our efforts today or more I'm sure in getting ready so we thank you very much for your participation and for answering a multitude of questions And we are looking for answers so if you have more to add to the record later we would welcome that as well Thank you very much Mr COMEY Thank you sir Mr ISSA Mr Chairman would you entertain a unanimous consent while we're changing panels Mr GOODLATTE I would Mr ISSA Then I would ask unanimous consent that a letter I received late yesterday from a constituent in the technology business concerning this case be placed in the record This is Emily Hirsch Mr GOODLATTE Without objection that will be made a part of the record Mr ISSA Thank you Mr GOODLATTE We ask the witnesses on the second panel to please come forward and be seated And now that Mr Sewell has been afforded similar attention to the attention previously accorded to Director Comey I'd ask that the press move back so we can begin the second panel Ms LOFGREN Mr Chairman I would not assume it was not directed to Ms Landau this photography Mr GOODLATTE Thank you We welcome our distinguished witnesses for today's second panel And if you would all please rise I'll begin by swearing you in Do you and each of you swear that the testimony that you are about to give shall be the truth the whole truth and nothing but the truth so help you God Note The material referred to was not available at the time this hearing record was finalized and submitted for printing on August 5 2016 98 Thank you very much Let the record reflect that all of the witnesses responded in the affirmative And I will now introduce the witnesses Bruce Sewell is senior vice president and general counsel of Apple Mr Sewell serves on Apple's legal team and oversees all legal matters including global security and privacy Prior to joining Apple Mr Sewell was deputy general counsel and vice president of Intel Corporation He received his bachelor's degree from the University of Lancaster and a J D From George Washington University Dr Susan Landau is professor of cybersecurity policy at Worcester Polytechnic Institute Originally trained as a theoretical computer scientist Dr Landau is an expert in cryptographic applications Within cybersecurity policy her work focuses specifically on communications surveillance issues Dr Landau earned a bachelor's degree from Princeton University a master's from Cornell University and a Ph D From the Massachusetts Institute of Technology Our final witness Mr Cyrus Vance Jr is the district attorney of New York County Mr Vance is currently serving his second term as district attorney after being reelected in 2013 He also serves as co-chair of the New York State Permanent Commission on Sentencing Previously Mr Vance worked in private practice and taught at Seattle University School of Law He's a graduate of Yale University and the Georgetown University Law Center All of your written statements will be entered into the record in their entirety And we ask that each of you summarize your testimony in 5 minutes or less To help you stay within that time there's a timing light on the table When the light switches from green to yellow you have 1 minute to conclude your testimony When the light turns red that's it your time is up And we'll begin with you Mr Sewell Welcome TESTIMONY OF BRUCE SEWELL SENIOR VICE PRESIDENT AND GENERAL COUNSEL APPLE INC Mr SEWELL Thank you very much Mr Chairman Thank you Members of the Committee and Ranking Member Mr GOODLATTE Make sure that microphone is on and pulled close Mr SEWELL Thank you for that technology hint Thank you Mr Chairman It's my pleasure to appear before you and the Committee today on behalf of Apple We appreciate your invitation and the opportunity to be part of the discussion of this important issue which centers on the civil liberties that are at the foundation of our country I want to repeat something that we've said since the beginning that the victims and the families of the San Bernardino attacks have our deepest sympathies We strongly agree that justice should be served And Apple has no sympathy for terrorists We have the utmost respect for law enforcement and share their goal of creating a safer world We have a team of dedicated professionals that are on call 24 hours a day 7 days a week 365 days a year to assist law enforcement 99 When the FBI came to us in the immediate aftermath of the San Bernardino attacks we gave them all the information we had related to their investigation And we went beyond that by making Apple engineers available to advise the FBI on a number of investigative alternatives but now we find ourselves at the center of a very extraordinary circumstance The FBI has asked the court to order us to give them something that we don't have to create an operating system that does not exist The reason it doesn't exist is because it would be too dangerous They are asking for a backdoor into the iPhone specifically to build a software tool that can break the encryption system which protects personal information on every iPhone As we have told them and as we have told the American public building that software tool would not affect just one iPhone It would weaken the security for all of them In fact just last week Director Comey agreed and I think we heard the same here today that the FBI would likely use this as precedent for other cases involving other phones We've heard from District Attorney Vance who's also said that he absolutely plans to use this tool on over 175 phones that he has in his possession We can all agree this is not about access to one iPhone The FBI is asking Apple to weaken the security of our products Hackers and cybercriminals could use this to wreak havoc on our privacy and personal safety It would set a dangerous precedent for government intrusion into the privacy and safety of its citizens Hundreds of millions of law-abiding citizens trust Apple's products with the most intimate details of their daily lives photos private conversations health data financial accounts and information about a user's location and the location of that user's family and friends Some of you may have an iPhone in your pocket right now And if you think about it there's probably more information stored on that device than a thief could steal by breaking into your house The only way we know to protect that data is through strong encryption Every day over a trillion transactions occur safely over the Internet as the result of encrypted communications These range from online banking and credit card transactions to the exchange of healthcare records ideas that will change the world for the better and communications between loved ones The U S Government has spent tens of millions of dollars through the Open Technology Fund and other U S Government programs to fund strong encryption The Review Group on Intelligence and Communications Technology convened by President Obama urged the U S Government to fully support and not in any way subvert weaken or make vulnerable generally available commercial software Encryption is a good thing We need it to keep people safe We have been using it in our products for over a decade As attacks on our customers' data become more sophisticated the tools we need to use to defend against them need to get stronger too Weakening encryption would only hurt consumers and well-meaning users who rely on companies like Apple to protect their personal information 100 Today's hearing is entitled ''Balancing America's Security and Privacy '' We believe we can and we must have both Protecting our data with encryption and other methods preserves our privacy and keeps people safe The American people deserve an honest conversation around the important questions stemming from the FBI's current demand Do we want to put a limit on the technology that protects our data and therefore our privacy and safety in the face of increasingly sophisticated cyber attacks Should the FBI be allowed to stop Apple or any company from offering the American people the safest and most secure products it can make 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 We believe that each of these questions deserves a healthy discussion and any decision should only be made after a thoughtful and honest consideration of the facts Most importantly the decision should be made by you and your colleagues as Representatives of the people rather than through warrant requests based on a 220year-old statute As Judge Orenstein concluded yesterday granting the FBI's request would thoroughly undermine fundamental principles of the Constitution At Apple we are ready to have this conversation The feedback and support we're hearing indicate to us that the American people are too We feel strongly that our customers their families their friends and their neighbors will be better protected from thieves and terrorists if we can offer the best protections for their data at the same time our freedoms and liberties we all cherish will be more secure Thank you for your time and I look forward to your questions The prepared statement of Mr Sewell follows 101 Statement for the Record The Tightrope Balancing Americans Security and Privacy United States House of Representatives Committee on the Judiciary Bruce Sewell Senior Vice President and General Counsel Apple March 1 2016 Thank you Mr Chairman It's my pleasure to appear before you and the Committee today on behalf of Apple We appreciate your invitation and the opportunity to be part of the discussion on this important issue which centers on the civil liberties at the foundation of our country i want to repeat something we have said since the beginning We that the victims and families of the San Bernardino attacks have our deepest sympathies and we strongly agree that justice should be served Apple has no sympathy for terro sts We have the utmost respect for law enforcement and share their goal of creating a safer world We have a team of dedicated professionals that are on call 24 hours a day seven days a week 365 days a year to assist law enforcement When the FBI came to us in the immediate aftermath of the San Bernardino attacks we gave all the information we had related to their investigation And we went beyond that by making Apple engineers available to advise them on a number of additional investigative options But we now find ourselves at the center of an extraordinary circumstance The FBI has asked a Court to order us to give them something we don t have To create an operating system that does not exist 7 because it would be too dangerous They are asking for a backdoor into the iPhone 7 speci cally to build a software tool that can break the system which protects personal information on every iPhone As we have told them and as we have told the American public building that software tool would not affect just one iPhone It would weaken the security for all of them In fact just last week Director Comey agreed that the FBI would likely use this precedent in other cases involving other phones District Attorney Vance has also said he Page 1 of 3 102 would absolutely plan to use this on over 175 phones We can all agree this is not about access to just one iPhone The FBI is asking Apple to weaken the security of our products Hackers and cyber criminals could use this to wreak havoc on our privacy and personal safety It would set a dangerous precedent for government intrusion on the privacy and safety ofits citizens Hundreds of millions of lax F abiding people trust Apple s products with the most intimate details of their daily lives photos private conversations health data nancial accounts and information about the user s location as well as the location of their friends and families Some of you might have an iPhone in your pocket right now and if you think about it there s probably more information stored on that iPhone than a thief could steal by breaking into your house The only way we know to protect that data is through strong Every day over a trillion transactions occur safely over the Internet as a result of communications These range from online banking and credit card transactions to the exchange ot healthcare records ideas that will change the world for the better and communications between loved ones The US government has spent tens of millions of dollars through the Open Technology Fund and other US government programs to fund strong The Review Group on Intelligence and Communications Technology convened by President Obama urged the US government to fully support and not in any way subvert undermine weaken or make vulnerable generally available commercial software is a good thing a necessary thing We have been using it in our products for over a decade As attacks on our customers data become increasingly sophisticated the tools we use to defend against them must get stronger too Weakening will only hurt consumers and other well- meaning users who rely on companies iike Apple to protect their personal information Today s hearing is titled Balancing Americans Security and Privacy We believe we can and we must have both Protecting our data with and other methods preserves our privacy and it keeps people safe The American people deserve an honest conversation around the important questions stemming from the FBFs current demand Do we want to put a limit on the technology that protects our data and therefore our privacy and our safety in the face of increasingly sophisticated cyber attacks Should the Bl be allowed to stop Apple or any company from offering the American people the safest and most secure product it can make Should the FBI have the right to compel a company to produce a product it doesn't already make to the exact specifications and for the use Page 2 of 3 103 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 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 At Apple we are ready to have this conversation The feedback and support we re hearing indicate to us that the American people are ready too We feel strongly that our customers their families their friends and their neighbors will be better protected from thieves and terrorists if we can offer the very best protections for their data And at the same time the freedoms and liberties we all cherish will be more secure Thank you for your time 1 look forward to answering your questions Page 3 of 3 104 Mr GOODLATTE Thank you Mr Sewell Ms Landau welcome TESTIMONY OF SUSAN LANDAU Ph D PROFESSOR OF CYBERSECURITY POLICY WORCESTER Ms LANDAU Thank you Mr Chairman and Members of the Committee thank you very much for the opportunity to testify today The FBI has pitched this battle as one of security versus privacy but as a number of the Members have already observed it's really about security versus security We have a national security threat going on and we haven't solved the problem at all What have smartphones got to do with it Absolutely everything Smartphones hold our photos and music our notes and calendars much of that information sensitive especially the photos Smartphones are increasingly wallets and they give us access to all sorts of accounts bank accounts Dropbox and so on Many people store proprietary business information on their smartphones-- their personal smartphones--even though they know they shouldn't Now NSA will tell you that stealing login credentials is the most effective way into a system In fact Rob Joyce of the Tailored Access Operation said so in a public talk a month ago Here's where smartphones are extremely important They are poised to become authenticators to a wide variety of systems--services In fact they're already being used that way including at some high-placed government agencies Now District Attorney Vance will tell you that law--has said that large scale data breaches have nothing to do with smartphone encryption but that's not true Look at today's New York Times where there's a story about the attack on the Ukrainian power grid How did it start It started by the theft of login credentials of system operators We've got to solve the login authentication problem and smartphones are actually our best way forward to do it but not if it's easy to get into the data of the smartphones Now the Committee has already observed that there are many phones that will go through the process of being unlocked not just the one in San Bernardino And what that means for Apple is that it's going to have to develop a routine to do so Now what happens when you have--when you sign a piece of code to update a phone and you're signing a piece of code that's an operating system or firm where you do it once--you do it occasionally It's a whole ritual and there are very senior people involved But if you're dealing with phones that are daily being updated in order to solve law enforcement cases then what happens is you develop a routine You get a Web page you get a low level employee to supervise it and then it becomes a process that's easy to subvert I have lots of respect for Apple's security but not when it becomes a routine process to build an update for a phone And what will happen is organized crime or a nation-state will do so using an update to then hack into a phone maybe the phone of the Secretary or the chief of the Federal Reserve maybe a phone of an HVAC employee who's going to go service a powerplant What 105 we're going to do is decrease our security That's the security risk that's coming from the requests Now I get that law enforcement wants data protection that allows them access under legal authorization but an NSA colleague once remarked to me that while his agency had the right to break into certain systems no one ever guaranteed that that right would be easy to do so The problem is when you build a way in for someone who isn't the owner to get at the data well you've built a way in for somebody else to get in as well Let me go to CALEA for a moment CALEA is a security nightmare I know that Congress didn't intend it that way but that's what it is If you ask the signals intelligence people they will tell you there are many ways for nefarious sorts to take advantage of the opening offered by law enforcement Instead of embracing the communications and device security we so badly need law enforcement has been pressing to preserve 20th century investigative techniques meanwhile our enemies are using 21st century technologies against us The FBI needs to take a page from the NSA You may recall that in the late 1990's the NSA was complaining it was going deaf from encrypted calls Well they've obviously improved their technology a great deal According to Mike McConnell from that time until now NSA has had better SIGINT than any time in history What we need is law enforcement to develop 21st century capabilities for conducting electronic surveillance Now the FBI already has some excellent people and expertise but FBI investment and capacity is not at the scale and level necessary Rather than asking industry to weaken protections law enforcement must instead development the capability for conducting sophisticated investigations themselves Congress can help The FBI needs an investigative center with agents with deep technical understanding of modern telecommunications technology and also because all phones are computers modern computer--deep expertise in computer science There will need to be teams of researchers who understand various types of fielded devices They'll need to know where technology is and where it will be in 6 months and where it will be in 2 to 5 years communications technology in 2 to 5 years so that they can develop the surveillance technologies themselves Expertise need not be in-house The FBI could pursue a solution where they develop some of their own expertise and closely managed contractors to do some of the work but however the Bureau pursues a solution it must develop modern state-of-the-art capabilities It must do rather than trying to get industry to weaken security Your job is to help the FBI build such capabilities determine the most efficient and effective way that such capabilities could be utilized by State and local law enforcement for they don't have the resources to develop that themselves and to also fund that capabilities That's the way forward that does not put our national security at risk It enables law enforcement investigations while encouraging industry to do all it can do to develop better more effective technologies for securing data and devices That is a win-win and where we should be going Thank you 106 The prepared statement of Ms Landau followsz Testimony for House Judiciary Committee Hearing on The Tightrope Balancing Americans Security and Privacy March 1 2016 Susan Landau Professor of Cybersecurity Policy Worcester Polytechnic Institute 100 Institute Road Worcester MA 01609 107 Testimony for House Judiciary Committee Hearing on The Tightrope Balancing Americans Security and Privacy March 1 2016 Mr Chairman and Members ofthe Committee Thank you very much for the opportunity to testify today on The Tightrope Balancing Americans Security and Privacy My name is Susan Landau and I am professor of cybersecurity policy at Worcester Polytechnic Institute I have previously been a Senior Staff Privacy Analyst at Google and a Distinguished Engineer at Sun Microsystems I am the author oftwo books on the issues of today s hearing Surveillance or Security The Risks Posed by New Wiretapping Technologies MIT Press 2011 and Privacy on the Line The Politics of Wiretapping and MIT Press 1998 the latter is co-authored with Whitfield Diffie I have written about these issues in the Washington Post the Chicago Tribune Scientific American and other venues I am a Fellow of the Association for Computing Machinery and of the American Association for the Advancement of Science and I was recently inducted into the Cybersecurity Hall of Fame My comments represent my own views and not those ofthe institutions with which I am affiliated Today I will speak on security threats and securing smartphones It would seem to be a fairly straightforward issue the smartphone of one ofthe two San Bernardino terrorists had its data Because Apple designed the phone to be secure and to destroy its data if there were ten incorrect tries of the PIN to unlock it the FBI cannot unlock the smartphone or at least cannot without risking destroying the data The court has ordered Apple to create a phone update that 1 Additional biographical information relevant to the subject matter to the hearing I am also a Visiting Professor of Computer Science at University College London For over two decades I have been studying policy and the risks that occur when wiretapping capabilities are embedded in communications infrastructures At Sun I was involved in issues related to and export control security and privacy of federated identity management systems and in developing our policy stance in digital rights management I serve on the National Research Council Computer Science and Telecommunications Board and recently participated in an Academies study on Bulk Signals Intelligence Collection 'l echnicalAlternatives 2015 I have served on the advisory committee for the National Science Foundation's Directorate for Computer and Information Science and Engineering 2009-2012 the Commission on Cyber Security for the 44th Presidency 2009-2011 and the National Institute of Standards and Technology's Information Security and Privacy Advisory Board 2002-2008 I hold a in applied math theoretical computer science from MIT 108 will undo this and other security aspects ofthe software thus enabling the FBI to brute force the key to reveal whatever information is on the phone But little in cyber is straightforward Despite appearances this is not a simple story of national security versus privacy It is in fact a security versus security story although there are of course aspects of privacy embedded in it as well The way we use our phones is very different than a decade ago they are as the Supreme Court observed in Riley v California minicomputers that also happen to have the capacity to be used as a telephone The phones could just as easily be called cameras video players rolodexes calendars tape recorders libraries diaries albums televisions maps or newspapers' Smartphones are already holders of account information financial and otherwise and are poised to become authenticators to a wide variety ofservices we access via the Internet And that is why we have a security versus security story The Internet has brought huge benefits but it has also vastly simplified attacks and exploits 3 Cyberespionage netted Chinese military a huge amount ofdesign and electronics data on the Russian intrusion55 into law firms6 the target here likely to be patent filings an Iranian hacker probing US critical infrastructure with possible intent to attack 7 are examples Each day brings more news of such attacks and exploits The cyberexploitation ofUS companies in which attackers from overseas have reaped vast amounts of intellectual property threatens the US economic strength In the last decade the United States has been under an unprecedented attack one that SA Director Keith Alexander has called the greatest transfer of wealth in history 8 2 134 S Ct 2473 2014- 3 It might be hard to understand why a network on which society has become so dependent is so insecure The short answer is history The the precursor to the Internet began as a research network on which everyone was a trusted partner When the NSFnet the follow-on network to the was opened up to commercial traffic it relied on the same protocols These assumed a trusted user body which was not really sensible fora network that would support financial transactions manage critical infrastructure and the like 4 David Alexander Theft ofF 35 design data is helping US adversaries Fentagon Reuters June 19 2013 5 Director ofNational Intelligence Iain es Clapper views Russia as the top cyber threat See Siobhan German Intel Chief Russia Tops China as Cyber Threat Wall Streetjournal October 17 2014 6 Mandiant Consulting M-Trends 2016 Special Report p 4-5 7 Stephanie Gosk Torn Winter and Tracy Connor lranian Hackers Claim Cyber Attack on US Darn NBC News December 23 2015 8 Iosh Rogin Chief Cybercrime constitutes greatest transfer of wealth in history' The Cable July 9 2012 109 Stealing your login credentials provides criminals and nation states the most effective way into your system and a smartphone provides one of the best ways of securing ourselves That s why Apple's approach to securing phone data is so crucial But law enforcement continues to see electronic surveillance in twentieth century terms and it is using twentieth-century investigative thinking in a twenty-first century world Instead of celebrating steps industry takes to provide security to data and communications the FBI fights it I should note that this response is different from NSA's which over the last two decades has despite public perception both encouraged and aided industry s efforts in securing communications 9 Instead of embracing the communications and device security we so badly need for securing US public and private data law enforcement continues to press hard to undermine security in the misguided desire to preserve simple but outdated investigative techniques There is another way Law enforcement should embrace the protections that industry is implementing to secure private and because of wide adoption also government sector data and develop substantive advanced capabilities to conduct investigations when needed In the late 19905 the NSA faced similar challenges and overcame them 10 We need twenty-first century technologies to secure the data that twenty-first century enemies organized crime and nation-state attackers seek to steal and exploit Twentieth century approaches that provide law enforcement with the ability to investigate but also simplify exploitations and attacks are not in our national-security interest Instead of laws and regulations that weaken our protections we should enable law enforcement to develop twenty-first century capabilities for conducting investigations Now I should note that the FBI already has some excellent capabilities in this area But FBI investment and capacity in this area is not at the scale and level necessary to be as effective as it needs to be 9 This is true despite the fact that the NSA has also sought to undermine some protections see later in this testimony as well as Susan Landau Under the Radar NSA's Efforts to Secure Private Sector Telecommunications Infrastructure journul ofNutionul Security Law and Policy Vol 7 No 3 2014 1 See Seymour Hersh The Intelligence Gap The New Yorker December 6 1999 ll Fora humorous take on these issues see The Strip New York Times February 28 2016 1 1 110 That s where Congress can help Law enforcement must develop the capability for conducting such investigations themselves or through a combination of in house and carefully managed contracting Though there have been nascent steps in this direction by law enforcement a much larger and complete effort is needed Help the FBI build such capabilities determine the most efficient and effective way that such capabilities can be utilized by state and local law enforcement and fund it This is the way forward that does not put our national security at risk It enables law enforcement investigations while encouraging industry to do all it can to develop better more effective technologies for securing data and devices This is a win win and where we should be going The rest ofmy testimony presents details of these concerns Thank you very much for the opportunity to address you on this critical national-security topic Understanding our Security Threat When terrorists wearing tactical gear and black masks and armed with guns and bombs attack a concert hall or Christmas party our immediate emotional reaction is that we must move heaven and earth to prevent future such attacks The role of leadership includes making choices Here we are faced with a situation where logic and analysis lead to a different calculus on safety and security than do emotions So while FBI Director james Comey has argued that We could not look the survivors in the if we did not follow this lead 12 this view is a mistaken view of where our most serious risks as a nation lie Page one of the 2016 Department of Defense Threat Assessment states r Devices designed and fielded with minimal security requirements and testing and an ever-increasing complexity of networks could lead to widespread vulnerabilities in civilian infrastructures and US Government systems 13 This is why securing communications and devices is so very crucial and it is Where the situation grows complicated Despite our deeply human tendency to react to the attack that is occurring right now we must focus and analyze to determine what our most dangerous threats are This can be difficult Yet measured carefully considered responses will be what secures this nation and its people In the last decade the United States has been under an unprecedented attack In 2010 Department of Defense Deputy Under Secretary William said the theft of US intellectual property may be the most significant cyberthreat that the United 12 Lawfareblog February 21 2016 eye-if-we-did-not-follow-lead l3 Iames Clapper Statement for the Record Worldwide Threat Assessment of the US Intelligence Community February 9 2016 p 1 111 States will face over the long term '14 The cyberexploitation of US companies in which attackers from overseas have reaped vast amounts of intellectual property threatens the US economic strength Make no mistake about it this is an extremely serious national-security threat Protecting US intellectual property is critical for US economic and national security In a July 2015 Washington Post op ed former NSA Director Mike McConnell former DHS Secretary Michael Chertoff and former Deputy Defense Secretary William concurred observing that Strategically the interests of U S businesses are essential to protecting U S national security interest Ifthe United States is to maintain its global role and in uence protecting business interests from massive economic espionage is essential 15 Messers Chertoff McConnell and concluded that the security provided by communications was more important than the difficulties present to law enforcement As the Court noted in Riley 6 the smartphones in our pockets are computers They are in fact the most common device for accessing the network So the cybersecurity threat applies as much to smartphones as it does to laptops servers and anything in between Securing Society I d like to turn now to I alluded earlier to efforts over the last two decades to secure private-sector telecommunications Let me now present some detail Since the mid 19905 the NSA has actively been promoting the use of in the private sector This began with a 1995 incident in which NSA helped private- sector adoption of a new more efficient algorithm for securing low- powered small devices l7 14 William Ill Defending a New Domain Foreign Affairs September October 2010 15 Mike McConnellI Michael Chertoff and William Lynn Why the fear over ubiquitous data is overblown Washington Post Iuly 28 2015 16 134 s Ct 2473 2014 17 An NSA representative present at an ANSI standards meeting spoke up to note that a new public- key algorithm whose security had been sharply questioned by the current provider of such algorithms was in fact secure He said that it was sufficiently secure that the US government was adopting it for communications among all U S government agencies including the Federal 112 SA participated in the Advanced Standards AES effort by vetting submitted proposals This algorithm was chosen through an international effort run by the National Institute of Standards and Technology and is an extremely strong system in November 2001 two months after the attacks of September 11th NSA concurred in the approval of ABS as a Federal information Processing Standard FIPS Designation as a FIPS means an algorithm or protocol must be in systems sold to the US government or contractors such a designation increases industry and international acceptance A year and a halflater the NSA approved the use to protect classified information as long as it was in an NSA-certified implementation 18 The decision had great impact for it vastly increases the market for products running the algorithm thus ensuring wider availability for non-classified users as well From there the NSA went on to approve a set of publicly available algorithms for securing a network 19 Why would the NSA go to such great efforts to support the deployment of strong in the private sector Since the mid 19905 the Department of Defense has relied on Commercial Off the Shelf products for DOD communications and computer equipment Use of COTS is required by law but it is also good security practice 20 The speed of innovation by industry means that must use COTS products in order to be cutting edge iPhones and iPads have been cleared for use since This is not to say every soldier must carry a locked iPhone but rather on balance the US government has had much to gain from the security improvements of private-sector communications technologies It is thus no surprise that the NSA supported many of these including the widespread use of strong technologies Reserve The result was that the algorithm was approved and is now Widely used it was the first time anyone could recall the NSA endorsing a private-sector system in this way See A1111 Hibncr Koblitz Neal Koblitz Alfred Menezes Elliptic Curve 'l'he Serpentine Course of a Paradigm Shift Journal ofqu111be1 Theory Vol 131 2011 pp 781 814 1 Committee on National Security Systems National Security Agency Policy No 15 Fact Sheet No Sheet No 1 National Policy on the Use of the Advanced Standard to Protect National Security Systems and National Security Information 2003 19 Center for Secure Services Information Assurance Directorate National Security Agency Suite Algorithms accessed by searching the archived copy of an older version of the website available at 20 The Clinger-Cohen Act requires that purchases of information technology use COTS whenever possible See more generally Susan Landau Under the Radar NSA's Efforts to Secure Private Sector Telecommunications Infrastructure journai ofNational Security Law and Policy Vol 7 No 3 2014 21 Defense information Systems Agency Approves for Government issued Apple 6 Mobile Devices May 17 2013 113 Are We Going Dark Our hearing concerns whether the wiretapping world is actually going dark And here the story does not appear to be quite the way the FBI sees it For although the FBI has been expressing great concern since the early 19905 that would prevent law enforcement from wiretapping 22 the sky has apparently not fallen at least for the NSA In the wake ofthe San Bernardino shootings the Washington Post reported that Mike McConnell who headed the NSA in the 19905 during the first national debate over federal policy recalled how 20 years ago he was for back-door access to communications for the government argued publicly 'We're going deaf because of calls said McConnell who now serves on the board of several cybersecurity companies The agency wanted a third party to hold a key to unlock coded calls But the resulting outcry similar to the one heard in today s debate over smartphone and text message caused the government to back down We lost McConnell said simply And what happened From that time until now NSA has had better sigint' than any time in history he said Nor is Director McConnell an outlier in this View In the same article former NSA Director Michael Hayden24 was quoted as saying that this is far more of a law enforcement issue than it is intelligence 25 Hayden noted I m not saying that NSA should not try to bust what Apple thinks is unbreakable All I'm saying is Apple should not be required to hold keys to data for the government 26 Now it is not surprising that some of the directors might hold this opinion The NSA has two roles signals intelligence and information assurance The NSA has grown more concerned about the latter as the theft of US IP has reached 22 In 1992 the FBI's Advanced Telephony Unit warned that within three years Title wiretaps would no longer work at least 40% would be intelligible and in the worst case all might be rendered useless Advanced Telephony Unit Federal Bureau oflnvestigation 'l elecommunications Overview slide on Equipment 1992 FOAled document available at Overview 1992 pdf 23 Ellen Nakashima Former national security officials urge government to embrace rise of Washington Post December 15 2015 24 Director Michael Hayden was also of course Director of the CIA 25 Nakashiina Former national security officials urge government to embrace rise of lbid 2 lbid 114 astronomical levels The FBI continues to remain focused on investigations rather than prevention a very serious mistake in my opinion The other reason for the split of course is that the NSA has far more resources and capabilities for conducting signals intelligence than law enforcement has But that is exactly the point In a technological world in which virtually every crime has a cyber component the FBI needs technical expertise it needs vastly more technical expertise than it has at present The Role of Smartphones Not so long ago everyone in an important job with confidential information carried a Blackberry This was the communication device of choice for those in high positions in government and the corporate world Unlike the recent iPhones and Androids Research in Motion the manufacturer of Blackberrys enables the phone s owner the corporation for whom the user works to have access to the text of communications If Syed Farook had been carrying a Blackberry 27 there wouldn't be a break-into-the-phone issue But in the last decade Blackberrys lost popularity losing the market to iPhones and Androids that s because apps drive the smartphone business Most people don t like to carry two devices 50 instead ofa Blackberry and an iPhone or Android consumers choose to use a single consumer device for all their communications and it happens to be a personal one Of course that's not true for everyone I am sure that many on this committee do carry two devices one for government work one for their personal stuff People who work in the Department of Defense or for defense contractors the financial or other industries where keeping proprietary work data secure is crucial may carry two devices As a society we have largely moved to a world Bring Your Own Device to work And what that means is not only is your personal stuff your notes and calendars and contacts on your smartphone so is proprietary information from work And so access to US intellectual property lies not only on corporate servers 27 If the FBI had not asked the San Bernardino Health Department to reset the password on the phone's iCloud account there would not be a break-into-the-phone issue I aresh Dave Apple and feds reveal San Bernardino's iCloud password was reset hours after the attack LosAngeles Tim es February 19 2016 It is also the case that if the San Bernardino Health Department had installed Mobile Device Management on the phone it gave to Farook there would not be a break-into-the- phone issue Tami Abdollah Apple CEO Feds Should Withdraw Demand for iPhone Hack Help ABC News February 22 2016 f easiusoftwarwhelii 115 which may or may not be well protected but on millions of private communication devices Smartphones bear little relation to the simple rotary dial devices that once sat on hallway tables Not only are smartphones the recipients of our photos our music our notes our calendars and contacts 28 much ofit sensitive data this is often especially true ofphotos Our smartphones are used for conducting transactions of monetary value ordering and paying for Uber rides and extra moves on Candy Crush transferring balances between bank accounts etc People are also increasingly using their personal smartphones for business and as a result these smartphones store important proprietary information Smartphones are increasingly becoming wallets providing access to accounts not only financial but also various online accounts such as Dropbox and storing emails and notes including ones from meetings or design drawings and the like For many people their personal smartphone acts as a convenient temporary repository for proprietary work information information they know they ought to protect but rarely do as carefully as they ought There are other ways of using phones for authentication these rely on the device's security These smartphones are also used for authentication that is as a form of authentication to a device an account etc And that means that the authentication information itself must be highly secured Otherwise people in possession of the phone and with access to the data on it can break into other accounts In short smartphones are rapidly becoming a data repository ofhighly sensitive information information that must be secured Thus Apple's secure by default provides an important improvement in security Smartphones and Long-Term Strategies for Security Data theft through the Internet began three decades ago starting with break-ins into military sites and the Defense Industrial Base 29 As US companies began connecting their systems to the Internet they too became targets The scale of cyberexploition data theft through networked systems is what matters here That scale is huge and greatly worries General Alexander Deputy Secretary Lynn and many others in our government 28 Tim Cook Message to Our Customers February 16 2016 letter 29 See for example Jason Healey ed A Fierce Domain Conflict in Cyberspace Publication 2013 116 In the early days of the network systems were poorly secured and data exfiltration was often the work of unsophisticated hackers While aspects of that world still exist the thieves are now far more sophisticated Virtually every nation has its version of Cyber Command whose purpose includes spying via the network How do the spies get in In a public presentation in January 30 the Chief of Tailored Access Operations organization Rob Joyce observed that the most valuable data for attackers is your login credentials Once an attacker has your login credentials however briefly he or she can establish a beachhead on your system that they can later use to eXfiltrate data What has this got to do with securing phones Everything Using phones for secure login has the potential to rescue us from much of the mess created by the ease with which login credentials typically passwords are stolen Currently our smartphones are our date books and our wallets but they are well poised to become our authentication devices Smartphones already act as a second factor for authentication to accounts Gmail you log onto your email account with a password and an SMS to your phone provides a one-time PIN that you also type in The security advantage is that someone needs two things to log into your account your password and the SMS message 31L There are tremendous advantages to this approach First a smartphone is something you have which makes it more secure than the something you know of a password The latter is easily used without your being aware that someone else has the authenticator while you'd notice quickly that your phone is missing As Google explains It's an extra layer of security 32 And a phone is something you already carry all the time which means you re not carrying an extra device for authentication A Michigan start-up Duo provides two-factor authentication apps for companies that need fast easy ways to ensure secure logins for their employees Facebook is a good example Its software engineers needed a very secure way to log on their development servers to write and submit code The login process had to be fast 30 USENIX ENIGMA anuary 28 2016 31 In fact someone could intercept the SMS and ifthey knew your password log in instead ofyou That would be a relatively highly targeted attack meaning that Gmail's two-factor authentication system substantially improves on the more frequently used single factor ofa password There are other alternatives including a Security Key that would be even stronger 32 Google Stronger Security for Your Google Account 117 and simple programmers have little patience and will find workarounds ifa process is complicated 33 There were various potential solutions time-based tokens one-time passwords biometrics smart cards and public keys Each had serious problems 34 and Facebook instead chose the Duo phone-based authentication solution for its developers Smartphones are used for security in other ways as well Some ofyou have experienced Google s notification system that informs you about logins to your email account that are outside your normal behavior The Duo authentication feed takes this security effort to a new level it allows you to authenticate a transaction for example a login to an account through a notification on your phone You can respond while continuing your normal phone activity This is security with convenience meaning it is usable and effective security New technology means that smartphones are beginning to be used in even more creative ways to provide better security for authentication This solves the problem that Rob Joyce says is his and presumably other nations most valuable way to gain access to your system Google is experimenting with a project where you log on by responding to a notification from a smartphone 35 The holder ofthe smartphone gets the notification responds and then logs on to their account The private sector is not the only place using these approaches Some high-placed agencies within the government are also adopting such solutions and no no details are available Where security matters authenticating through the device that is always in your pocket and owned by you is a much more secure way to handle your login credentials than the systems we've been using up until now If the information on the phone is accessible to Apple it will be accessible to others and this promising and important solution to protecting login credentials which is by NSA's description the most valuable way to break into systems will be ineffective That s why locking down the data is so crucial for security Rather than providing us with better security the efforts will torpedo it 3 3 If only for this reason alone security must be built in so that trusted but careless programmers don t make it easy to breach 3 system 34 Time-based tokens timed out when a developer was authenticating to two machines at once one- time passwords had problems biometrics are not trustworthy ifthe user is remote and the smart card solution had interception problems See Facebook's Security Philosophy and How Duo Helps 35 Sarah Perez Google Begins Experimenting with Password Free Logins February 22 2015 015 12 2 118 Securing the Smartphones Does Not Prevent Investigations Even though Apple has engineered excellent security for the iPhone there are workarounds to access the data that do not involve Apple creating an update that circumvents its security protections fa locked iPhone is brought to a WiFi network it knows then the phone will automatically its contents with Apple's iCloud if the phone is charging and the phone and iCloud passwords match Unfortunately the San Bernardino Health Department changed the iCloud password on Farook s phone the evening of the attack and so the mismatching passwords the ones on the iPhone and iCloud account eliminated this potential solution won't occur if the passwords for the phone and iCloud account differ The iCloud password reset was done at the behest of the FBI which was concerned that someone else might try to access or otherwise affect the phone s iCloud backup 36 But there are other solutions There are of course lots of sites that discuss jailbreaking the phone 37 The Chaos Computer Club is a well established group of European hackers that has for over thirty years exposed security flaws in well-known systems Their technical expertise is well respected They ran a meeting last summer in which they demonstrated physical means including the use of electron microscopes to recover the data on security chips Such techniques may well enable the recovery of the data on the iPhone and would come cheap as in well under fifty thousand dollars The security in the iPhone stems from the DMA chip a piece of hardware that can access main memory without going through the CPU The iPhone DMA is using what the FBI really wants is the key There are firms that do forensic work in decapping chips to expose information on them Rough estimate of costs are around half a million dollars I ve heard other estimates that come in much lower say in the one hundred thousand dollar range The point is that solutions to accessing the data already exist within theforensic analysis community There s another way of addressing the issue about whether Apple is impeding an investigation That s to look at what information might be only be on the phone 3 6 l aresh Dave Apple and feds reveal San Bernardino's iCloud password was reset hours after the attack LosAngeles Times February 19 2016 37 Breaking into a locked iPhone would likely require technical skills at the level ofa signals intelligence agency 119 keeping in mind that this phone was Farook's work phone and that he and Malik had destroyed their personal phones Let s start with might be only on the smartphone There are likely to be text messages between Farook and his wife there might be photos that Farook took of documents or people that might be of interest to the FBI there might be communications between Farook and some of the Health Department employees he attacked NowI understand due diligence and I especially understand due diligence in a terrorist attack that could conceivably have connections with other potential terrorists But aside from self-professed statements in support of terrorist organizations Farook and Malik do not appear to have been communicating with other terrorists If they had been the information about whom they are communicating with was available not only on their phones personal or work but also at the phone company and or the ISP Farook might have been communicating via iMessage on his work phone In that case if the FBI made the request oprple they would have gotten iMessage metadata available from Apple servers- 8 It is however extremely unlikely that Farook used his work phone rather than his personal one to conduct the private communications of interest Farook s communications with his coworkers are presumably available on their smartphones one assumes these did not have passwords reset and their contents are accessible It would thus appear that the only useful information that is potentially on Farook's smartphone is his communications with Malik In weighing the FBI request one has to look at the potential gain and weigh it against the potential cost In this case the gain appears to be the possibility of developing a greater understanding ofthese self-radicalized terrorists The Security Risks Arising from Apple s Unlocking the Phone Beginning with 8 Apple iPhones by default that is all data on the smartphone is automatically unless the phone is unlocked The key to unlock the phone data consists of an entanglement of the smartphone PIN and a hardware key physically embedded in the device That means to get at the data one has to have the phone Apple s operating system protects the security of the data in other ways as well with each incorrect guess of the phone PIN the phone delays the 3 8 The Manhattan DA report on smartphones notes that iMessage detail dates times phone numbers involved does not appear at the phone company Report of the Manhattan District Attorney's Office on Smartphone and Public Safety p 12 That's correct It is because an iMessage is an IP-based communication that goes through Apple servers 120 time until the next guess is allowed In addition may wipe the smartphone clean after too many incorrect tries The system is designed to protect user data if the device is lost or stolen or if an unauthorized person attempts to use or modify it 39 Farook s work phone an iPhone 5c is an earlier device but many of these protections are present on it as well So at the FBI's request the Central California District Court ordered Apple to create software that provides the FBI with a Software image File that can be loaded onto Farook's phone The SIF will load and run from Random Access Memory and will not modify the 108 on the actual phone the user data partition or system partition on the device's flash memory The SIF will be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on Farook s phone The SIF will be loaded via Device Firmware Upgrade mode recovery mode or other applicable mode available to the FBI 40 The software is to by-pass or disable the auto-erase function whether or not it has been enabled enable the FBI to submit passcodes to Farook s phone via the physical device port 41 and ensure that when the FBI submits passcodes to the phone software running on the device will not purposefully introduce any additional delay beyond what is incurred by Apple s hardware 42 In other words the judge was asking Apple to create an Apple-signed device-specific software update tied to Farook s work phone 3 The update would enable brute force testing of Ple without erasing the content ofthe smartphone Let me briefly explain signing Any complex digital device a smartphone a laptop a thermostat a car will need software updates Such updates are particularly important for patching newly discovered software vulnerabilities but they have other functions as well They provide new functionality which means you don t need a new phone every six months They also patch errors all large software 3 9 Apple Inc '05 Security 9 0 or Later September 2015 p 4 40 United States District Court for the Central District of California In the Matter ofthe Search of an Apple iPhone Seized During the Execution ofa Search Warrant of a Black Lexus lS3 00 California License Plate 35KGD203 No ED15-0451M Order Compelling Apple to Assist Agents in Search February 16 2016 p 2 4 1 This would vastly speed up the time to try different Ple 4 2 Order Compelling Apple to Assist Agents in Search p 2 4 3 Signing is a operation that validates the authenticity ofa digital object in this case it is that the code came from Apple 121 systems have errors And they keep complex digital systems working as the other systems around them change as they themselves are updated and improved In order to assure your device that the smartphone software update is coming from Apple the company signs the update employing a process using information only Apple has This enables a smartphone or laptop thermostat car etc to know that the update is coming from a legitimate provider and prevents malicious actors from presenting so-called r updates to your machine that are actually attempts to install malware The FBI has argued that there is no security risk in Apple building and signing a device-specific software update tied to Farook s work phone The update will be fully under Apple's control and will be tailored to work only on the smartphone in question These statements are both true and incorrect at the same time That is the FBI statements that the update will be under Apple s control and can be tied to work only on Farook s phone are factually correct But they miss the point ofthe risks involved The fact is that the software cannot be developed used and deleted Given that the phone's data may be used in investigations and court cases the break-in software must remain available for examination The longevity of the update code constitutes the first risk for Apple's iFhone users While the FBI affidavit says this is a one-time use other cases make that highly unlikely A November 2015 report from the Manhattan District Attorney s Office states that Between September 17 2014 and October 1 2015 the District Attorney s Office was unable to execute approximately 111 search warrants for smartphones 4 Were Apple to develop the code that the FBI is requesting shortly afterwards the company would be inundated with requests from state and local law enforcement for the same capability The frequent use that the code may be expected to have gives rise to the risk that Apple CEO Tim Cook described in a recent with the Apple employees Law enforcement agents around the country have already said they have hundreds ofiPhones they want Apple to unlock if the FBI wins this case In the physical world it would be the equivalent ofa master key capable of opening hundreds of millions of locks Of course Apple would do our best to protect that key but in a world where all ofour data is 44 Report of the Manhattan District Attorney's Office on Smartphone and Public Safety November 2015 defaultffilirts p 9 The 111 phones were all running 8 122 under constant threat it would be relentlessly attacked by hackers and emphasis added At present each OS and firmware update is signed by Apple enabling an Apple device to recognize the proffered update is approved by Apple and not We-Break- into-You com This signing key ensures the integrity oprple updates but it seems very likely that US law enforcement will frequently want to search locked iPhones Each search will be targeted to a particular phone which means Apple must update the code to include the serial number ofthe target Each particularized version of the code will need to be signed by Apple That s where the risk arises Signing code is not technically hard But a process that happens relatively rarely when signing updates to the OS or firmware occur is very different from the process for an event that occurs routinely signing updates to accommodate frequent law-enforcement requests for access to the smartphones Everyday use of signing updates to unlock smartphones means the signing process must become routinized Though that doesn t sound like much of an issue it actually presents a serious problem I am concerned that routinizing the signing process will make it too easy to subvert Apple's process and download malware onto customers' devices My concern is not that the FBI will download rogue software updates onto unsuspecting customers there is a rigorous Wiretap warrant process to prevent government wiretaps from being abused Rather I am concerned that routinization will make it too easy for a sophisticated enemy whether organized crime or a nation attempting an Advanced Persistent Threat attack to mislead the Apple signing process A process that is used rarely such is now the case in signing updates is a process that can be carefully scrutinized each time it occurs the chance for malfeasance is low But make things routine and instead of several senior people being involved in the signing process a web form is used and a low-level employee is placed in charge of code signing Scrutiny diminishes No one pays a great deal of attention and it becomes easy for rogue requests to be slipped into the queue All it takes for things to go badly wrong is a bit of neglect in the process or the collaboration ofa rogue employee And ifthe FBI CIA and NSA can suffer from rogue employees then certainly Apple can as well A phone that an unfriendly government a criminal organization or a business competitor wants to examine receives a signed security update from Apple This enables the government criminal group or competitor to probe the smartphone and read its data when the 45 Matthew Panzarino In Employee Email Apple CEO 'l im Cook Calls for Commission on Interaction ofTechnology and Intelligence Gathering Techcrunch February 22 2016 123 smartphone is taken during a customs inspection a theft or a meeting in which all electronic devices are kept outside the room A different issue is that smartphone owners may begin to distrust the automatic update process One of the greatest improvements to consumer device security has been automatic security updates what we in the trade call a push instead of a pull Would people stop automatic updates if they were concerned that law enforcement were using the updates as a surreptitious technique to search their devices not for terrorist activity but say for tax fraud Using updates that appear to have been signed by the company to deliver malware or surveillance technologies is likely to undermine one of the few success stories of cybersecurity automatic updates to correct flaws How many people would stop automatic smartphone updates from Apple if they knew that the update could steal their bank account information How many people would stop using virus scanners on their PCs if they knew that these programs were sometimes used by law enforcement to spy on their users If this activity were to cause people to back away from using automatic updates for patching and the like the impact on security is likely to be disastrous security technologies in general protect data Within that obvious statement lies a conundrum for the FBI It would appear that in its effort to use all tools to conduct investigations the FBI has not fully considered the impact of its efforts on technologies that secure data the lifeblood of the information economy There are potentially severe adverse cybersecurity consequences of the FBI approach Apple has been carefully working to secure the data on customers' phones Most security experts consider to be the most secure platform the last things we should be doing is seeking to weaken it Were the District Court decision to be upheld it will seriously undermine industry efforts in security I don't doubt that Apple will continue to further engineering work to further secure the data on the smartphones '6 and other devices but the government's actions would give serious pause to other companies pursuing that direction International Impact of Forcing Apple to Unlock its Secured Phones There are also serious international consequences that would stem from Apple s developing code to unsecure its iPhone s operating system As I'm sure members of the committee are aware when members of the US government and businesspeople 4 6 Matt Apuzzo and Katie Benner Security 'Arms Race' as Apple Is Said to Harden iPhone New York Times February 25 2016 124 travel to certain countries they bring loaner devices with them phones and laptops that are wiped clean before they leave the US and wiped clean on return 47 That s the case even though the devices never have their network connections turned on at least by the owner Recommendations for security include such steps as removing batteries from a phone when at meetings in order to prevent a microphone being turned on remotely 48 and keeping the device with you at all times 49 Apple's efforts to secure the data on the iPhone should be viewed in this light There is another international aspect to the efforts to unsecure the phone United States support ofhuman rights is a cornerstone ofUS foreign policy It includes strong support for private and secure communications for such capabilities are a necessity for human rights workers in repressive nations There is no question that authoritarian governments in such countries as Russia and China will demand Apple deliver the same software that is it has been ordered to develop to handle Farook's work phone 50 Apple s ability to resist such demands is made much more difficult ifit has already created the code for US government use Securing the iPhone follows in US government tradition of developing secure communication and data storage solutions for private-sector use The US Naval Research Laboratories developed Tor The Onion Router an Internet-based tool for obscuring communications metadata thus hiding who is communicating with whom At first glance this might seem counterproductive after all criminals hide their tracks that way But Tor is also remarkably useful for the military obscuring that personnel in safe houses are communicating with US command for law- enforcement investigators obscuring that a participant in a child porn chat room is actually an investigator from fbi gov enabling human-rights workers and journalists working in repressive regimes a modicum ofsafety etc Tor functions most effectively in protecting users' identities if more users are on the system and if not all users are government employees Another project one that has resonances with the iPhone is a US Department of State Bureau of Democracy Human Rights and Labor supported program that 4 7 Nicole Perlroth Traveling Light in a Time of Digital Thievery New York Times February 20 2012 lbid 49 See for example North Dakota State University Cyber Security Tips for Traveling Abroad with Mobile Electronic Devices 50 And once developed for our government it is only a matter oftime before foreign governments demand the same tool United States District Court for the Central District of California In the Matter of the Search ofan Apple iPhone Seized During the Execution ofa Search Warrant ofa Black Lexus 18300 California License Plate 35KGD2 03 No ED15-0451M Order Compelling Apple to Assist Agents in Search February 16 2016 p 22 125 developed an information management tool Martus 51 Martus enables a group to create a searchable database say ofhuman rights violations and this database provides access only to members ofthe group that created the account 53 Given the threats to US businesspeople traveling overseas and the strong interest and support of the US government to secure communication and data storage tools for human-rights workers abroad the FBI stance makes no sense Ifthe FBI succeeds in having Apple develop software to unlock the phone the bureau will in effect have provided our enemies with tools to use against us But this is not the first time that the law enforcement has mistaken difficulties in conducting investigations with technology that must be changed to accommodate its needs That approach mistakes where actual solutions should lie We Have Been Down this Route Before and It is Dangerous Five years ago I testified to a House Judiciary Subcommittee the Subcommittee on Crime Terrorism and Homeland Security At the time FBI General Counsel Valerie Caproni expressed grave concern that due to being used for communications as opposed to for devices the FBI was going dark At the time the FBI sought to extend the Communications Assistancefor Law Enforcement Act CALEA to Internet or IP-based communications Now CALEA is a very problematic law Wiretapping is a way for an unauthorized third party to listen in to a communication By requiring that wiretapping capabilities be built into telephone switches the government created a security breach Indeed there are many ways for nefarious sorts to take advantage of the opening afforded by law enforcement The story ofthe ten-month wiretapping of the cellphones of one hundred senior members of the Greek government including the Prime Minister the heads ofthe ministries of national defense foreign affairs and justice is well known 53 Less well known is the fact that an IBM researcher found multiple security problems in a Cisco architecture for the equivalent type of switch for wiretapping IP-based communications 54 But much more disturbing than either of these stories is the fact that when the NSA tested CALEA-compiiant switches that had been submitted prior to 51 The Department of State supported deployment and training particularly in Uganda and Zambia where activists use Martus for contact lists testimonies and similar information 52 Martus 4 5 Strong Security Easy Configuration Enhanced Usability littps 0 on enhanced psabilityj Benetech does not hold the keys and could not the data if requested to 53 Vassilis Prevelakis and Diomidis Spinellis The Athens Affair Spectrum V01 44- No 7 Iuly 2007 pp 26 33 54 Tom Cross Exploiting Lawful Intercept to Wiretap the Internet Black Hat DC 2010 126 use in systems NSA found security problems in every single switch submitted for testing 55 CALEA did not apply to information services but in 2010 the FBI proposed that the law be extended to IP-based communications As the world knows the Internet is remarkably insecure Building wiretapping capabilities into switches and routers is a move that would make things substantively worse And it is unnecessary for there are other solutions that would provide law enforcement with the capabilities it needs without introducing new security aws Many Internet communications such as those using Google or Facebook services are available to the companies in the clear Thus these communications services while not falling precisely under the CALEA umbrella remain easy for law enforcement to access as indeed they have under court order Instead ofrequiring by law that communications systems be built wiretap capable it is possible to take advantage of the vulnerabilities of any large software system and these include phones and computers to install a remote wiretap 56 Called lawful hacking because it is legal done under a court order and hacking because it involves hacking into the devices is a method that has been successfully adopted by the FBI In fact it is an approach that has been used by the Bureau since at least 2001 57 The idea is simple and relied on by attackers all the time Using a wiretap warrant to probe a suspect s smartphone or other communications device you wish to wiretap and find a vulnerability on the device Unfortunately such vulnerabilities are easy to find Then law enforcement will need a second wiretap warrant to install the actual wiretap the wiretap is installed by taking advantage of the vulnerability to download onto the device 58 Now this is an ugly sounding business and indeed civil libertarians have expressed concern about a wiretap solution that involves breaking into peoples devices But the fact is that if law enforcement is to continue to wiretap it can do so either by 55 Private communication with Richard George Former Technical Director for Information Assurance National Security Agency Dec 1 2011 56 See Steven M Bellovin Matt Blaze Sandy Clark and Susan Landau Going Bright Wiretapping without Weakening Communications Infrastructure Security and Privacy Vol 1 1 No 1 Ianuary February 2013 pp 62-72 and also Steven M Bellovin Matt Blaze Sandy Clark and Susan Landau Lawful Hacking Using Existing Vulnerabilities for Wiretapping on the Internet Northwesternjoumal of l'echnology and Intellectual Property Vol 12 Issue 1 2014 57 In the 2001 case the FBI used software dubbed Magic Lantern to inject a virus into a remote computer and obtain the device's keys See B Sullivan Software Cracks Wall NBC News 20 Nov 2001 5 This is the process by which criminals and other attackers download malware to extract data of course they do so without wiretap warrants 127 taking advantage of vulnerabilities already present in the system to wiretap or by requiring all systems be made vulnerable the CALEA solution Eitheryoa encourage security solutions that protect everyone by taking advantage of the security problems that already exist in the system or you push everyone into less secure systems The former strengthens society s security while still enabling investigations the latter only serves to weaken us badly A lawful hacking approach to wiretap investigations means that law enforcement must work a little harder 59 Wiretapping investigations must be individually designed for each target sometimes the same solution may work against more than one target This is expensive but that is not necessarily a bad thing it means that we are not encouraging widespread wiretapping I know that this is a value the Judiciary Committee holds dear The lawful hacking approach to wiretapping provides a roadmap for the locked smartphone situation Solutions for Locked Phones FBI Investigatory Capabilities for the Twenty-first Century Wiretap and search are extremely important tools for law enforcement but and locking down devices are extremely important security solutions for our data-driven data-dependent society But instead of embracing such technologies as an important and crucial security advance law enforcement has largely seen such technologies as an impediment to lawfully authorized searches This is a twentieth-century approach to a twenty-first century problem but in that fact lies the possibility ofa solution In the late 19903 the NSA faced a similar crisis Seymour Hersh detailed the situation in the New Yorker The NSA whose Cold War research into code breaking and electronic eavesdropping spurred the American computer revolution has become a victim of the high-tech world it helped to create Senior military and civilian bureaucrats have failed to prepare fully for today s high- volume flow of E-mail and fibre-optic transmissions even as nations throughout Europe Asia and the Third World have begun exchanging diplomatic and national-security messages in unbreakable digital code 50 59 An NSA colleague once remarked to me that his agency had the right to break into certain systems but no one ever guaranteed the right that it would be easy to do so 6 Seymour Hersh The Intelligence Gap The New Yorker December 6 1999 128 As we all know the NSA adapted The FBI is where the NSA was in 1999 and it has been there for quite some time certainly since well before passage Given the types ofadversaries the US faces and the skills they have we should be strengthening and securing all forms of cyber including those in consumer hands That s exactly what Apple has done We should be praising Apple for this direction and at the same time we should help law enforcement to adopt a twenty-first century approach The Bureau has some expertise in this direction but it will need more much more both in numbers but also in the depth The FBI will need an investigative center with agents with a deep technical understanding of modern telecommunications technologies this means from the physical layer to the virtual one and all the pieces in between Since all phones are computers these days this center will need to have the same level of deep expertise in computer science In addition there will need to be teams of researchers who understand various types of fielded devices This will include not only where technology is and will be in six months but where it may be in two to five years This center will need to conduct research as to what new surveillance technologies will need to be developed as a result ofthe directions ofnew technologies I am talking deep expertise here and strong capabilities not light This expertise need not be in house The FBI could pursue a solution in which they develop some of their own expertise and closely manage contractors to do some of the work But however the Bureau pursues a solution it must develop modern state-of the-art capabilities for surveillance Such capabilities will not come cheap but the cost annually will be in the hundreds of millions not in the billions But given the alternatives insecure communications technologies that preserve law-enforcement s ability to search and wiretap at the cost of enabling others to do so as well the cost is something we not only can afford but must Developing such capabilities will involve deep change for the Bureau which remains agent based not technology based But just as the NSA had to change in the late 19905 so must the FBI In fact that change is long overdue As many in law enforcement have said many if not most crimes now have a cyber component The FBI must develop advanced capabilities for such investigations moving to a technology based investigation agency It is not there now Because of the complexity involved state and local law enforcement will not be able to develop their own solutions for some or perhaps many cases They will need to rely on outsiders either contractors or an effort put together by the FBI 129 It is neither the time nor place to exactly map out the full solution of how such a law- enforcement advanced technologies surveillance center will work That will take the expertise oflaw enforcement technical leaders and Congress to study and determine But I place this before you not only as a solution to the conundrum that Director Comey and District Attorney Vance present you but as the only solution that protects our security and enables law enforcement to do ltsjob in theface of advanced communications technologies What we as a nation and you as lawmakers need to do is enable the Bureau to develop that expertise and also to simultaneously determine the best way to develop structures to enable state and local law enforcement to take advantage of that expertise and other protections such as time delays as incorrect PINs are entered secure our systems and should never be undermined Instead the FBI must learn to investigate smarter you Congress can provide it with the resources and guidance to help it do so Bring FBI investigative capabilities into the twenty- first century That's what is needed here and not undermining the best security that any consumer device has to date For that s what Apple s is Summing Up Privacy is a deeply held human value it is what enables us to laugh to love to tell embarrassing stories about ourselves to take risks and expose ourselves and to be deeply human But while I care very deeply about privacy I think that the business of securing communications and devices is ultimately a security versus security story not a security versus privacy story We have become highly dependent on our devices for conducting all parts of our lives and this will only expand in the future But instead ofgoing forward for a moment I want to look back quite far back I want to end by noting what the preamble to the Constitution says We the People of the United States in Order to form a more perfect Union establish Justice insure domestic Tranquility provide for the common defence sic promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity do ordain and establish this Constitution for the United States of America Note that important phrase ensure the blessing of Liberty to ourselves and our Posterity In the wake of the terrorist attacks in San Bernardino it is easy to make a decision that argues in favor of short-term security by enabling this week s 130 investigation it is much harder to make the decision that provides for long-term safety But the preamble tells us to do so We have the option to press companies to develop as secure and private devices as they can or to press them to go the other way Let us make the right decision for our safety long-term security and humanity Thank you 131 Mr GOODLATTE Thank you Ms Landau Mr Vance welcome TESTIMONY OF CYRUS R VANCE JR DISTRICT ATTORNEY NEW YORK COUNTY Mr VANCE Thank you Good afternoon Chairman Goodlatte Ranking Member Conyers and Members of the House Judiciary Committee Thank you so much for allowing me to participate today I'm testifying as a district attorney but on behalf of the National District Attorneys Association And I'm very grateful for you giving us the opportunity to be here because much of the discussion in the prior panel and in the comments by the other speakers here has been about the Federal Government and about the issue of security and cybercrime in the Federal context But it's important I think for all of us to recognize that State and local law enforcement agencies handle 95 percent of the criminal cases each year around the country So we have a very deep interest in the subject matter of this hearing today and thank you for letting us participate Apple and Google's decision to engineer their mobile devices to in essence be warrant-proof has had a real effect on the traditional balance of public safety versus privacy under our Fourth Amendment jurisprudence And I agree with the comments I think of everyone here including the many Members of the House that we really need Congress to help solve this problem for us and it's why it's so important that you're undertaking this effort But I think in looking at this issue there are some basic facts from the State law perspective that really are very important in this debate but are not in dispute And number one as Tim Cook said in his open letter to his customers of Apple of February 16 of this year Smartphones led by iPhone have become an essential part of our lives Nothing could be more true We are all using our cell phones for every aspect of our lives Number two is that smartphones are also essential to criminals Our office investigates and prosecutes a huge variety of cases from homicide to sex crimes from international financial crime and including terrorism cases and criminals in each of those cases use smartphones to share information to plan and to commit crimes whether it's through text messages photographs or videos Number three criminals know that the iOS 8 operating system is warrant-proof Criminals understand that this new operating system provides them with the cloak of secrecy and they are ladies and gentlemen quite literally laughing at us And they are astounded that they have a means of communication totally secure from government reach And I don't ask you to take my word for it In one lawfully recorded phone conversation from Rikers Island in New York an inmate talking about the iOS 8 default device encryption called it and I'm quoting ''a gift from God '' Number four the encryption Apple provided on its mobile devices prior to iOS 8 that is before October 2014 was represented to be both secure for its customers and importantly was amenable to court-authorized searches We know this because Apple told us this Apple characterized its iOS 7 operating system as the ulti- 132 mate in privacy It touted its proven encryption methods and assured its users that iOS 7 could be used with confidence in any personal or corporate environment During the time when iOS 7 was the operating system Apple also acknowledged and I think importantly its responsibility to help again in Apple's own words ''police investigating robberies and other crimes searching for missing children trying to locate a patient with Alzheimer's disease or hoping to prevent a suicide '' So Apple's experience I believe with iOS 7 demonstrated that strong encryption and compliance with court orders are not mutually exclusive A default device encryption has had a profound impact on my office and others like it In November of 2015 my office published a white paper on public safety and encryption and at that time there were 111 iPhones from which we were locked out having obtained search warrants for those devices Now 21 2 months later when we submitted our written testimony for this Committee the number was 175 Today it is 205 which represents more than one out of four of the approximately 700 Apple devices that have been analyzed by our office's own cyber lab since the introduction of iOS 8 And of course that problem isn't just in Manhattan Prosecutors in Houston have been locked out of more than 100 iPhones last year 46 in Connecticut 36 in Chicago since January and those are just a few of the thousands of phones taken into evidence each year around the country So centuries of jurisprudence that have been talked about today have held that no item not a home a file cabinet a safe or even a smartphone is beyond the reach of a court-ordered search warrant But the warrant-proof encryption today gives two very large companies we believe functional control over the path to justice for victims of crime including who could be prosecuted and importantly who may be exonerated So our point Mr Chairman is that we believe this line being drawn between public safety and privacy is extremely important It's affecting our lives It's affecting our constituents' lives And we believe that you should be drawing it and we ask you to address this problem quickly Time is not a luxury for State and local law enforcement crime victims or communities can afford Our laws require speedy trials Criminals have to be held accountable And victims are as we speak and we know in this audience asking for justice The prepared statement of Mr Vance follows 133 Written Testimony of New York County District Attorney Cyrus R Vance Jr Before the United States House of Representatives Committee on the Judiciary The Tightrope Balancing Americalts' Security and Privacy Wnshingtoml D C March I 20l6 Good afternoon Chairman Goodlatte Ranking Member Conyers and Members of the House Judiciary Committee Thank you for your attention to this issue and for the opportunity to testify today This Committee had invited the National District Attorney s Association to participate in today's hearing and my colleagues at the NDAA in turn asked me to serve as the organization s representative 1 am grateful for this opportunity to speak with you on a topic of Such importance and urgenCy to state and local law enforcement in recent weeks the debate has focused on the federal government s investigation into the heinous terrorist acts committed in San Bernardino California on December 2 2015 applaud our federal colleagues For their commitment to justice For the 14 people killed the 2 people injured and all of their Families Law enforcement agencies at all levels as well as crime vietims advocates and other concerned community leaders are watching this case with great interest 134 While the San Bemardino case is a federal case it is important to recognize that 95 percent of all criminal prosecutions in this country are handled at the state and local level and that Apple s switch to default device in the fall of 2014 severely harms many of these prosecutions And that is why 1 am here today as a representative of the thousands of local and state prosecutors around the country Smartphone has real-life consequences for public safety for crime victims and their families and for your constituents and mine In the absence of a uniform policy our nation will effectively delegate the crafting of national security and law enforcement policy to boardrooms in Silicon Valley That is important responsibilities of our government will be carried out by Apple Google l and other technology companies who will advance the best interests of their shareholders not necessarily the best interests of our nation For the reasons set forth below the line between personal privacy and public safety should be drawn by Congress not Silicon Valley 1 Smartphone Eneryption s Impact on Law Enforcement and Crime Victims2 The United States Constitution provides that local law enforcement agents may obtain access to places where criminals hide evidence 7 including their homes car trunks 1 Google through its parent company Alphabet has also announced that it will require default disk on its Android devices As Apple has been the public leader among technology companies in the question of default full disk I shall focus on it in these remarks even though many of the points may be applicable to Google and other technology companies 2 For background information on smartphone device see Report of the Manhattan District Attomey s Of ce on Smartphone and Public Safety Nov 2015 See also Testimony of New York County District Attomey Cyrus R Vance Jri Before the Senate Judiciary Committee July 8 2015 df and 135 storage facilities computers and digital networks 7 so long as the agents have a search warrant issued by a judge Carved into the bedrock of the Fourth Amendment is a balance between the privacy rights of individuals and the public safety rights of their communities iPhones are now the first consumer products in American history that are beyond the reach of Fourth Amendment warrants Like everyone else 1 value my privacy And I understand there is a fear arising out of mass security breaches collection of bulk data and warrantless surveillance But that is not the access state and local law enforcement seek or expect Police and prosecutors access to electronic data is grounded in and limited by the Fourth Amendment which authorizes only reasonable searches based on probable cause supported by a particularized search warrant and approved by a neutral judge I believe the high burden imposed by the Fourth Amendment not warrant- proof is our best protection from abuse 3 Cn'tics of law enforcement s position often point out that for centuries we have successfully conducted investigations without evidence obtained from smartphones and therefore we should be able to continue to investigate crime without such evidence But Apple itself explained why accessing evidence on smartphones is now so critical In an open letter to customers dated February 16 2016 Apple CEO Tim Cook stated that Smartphones led by iPhone have become an essential part of our lives People use them to store an incredible amount of personal information from our private conversations to Response of Cyrus R Vance r to the Berkman Center's Report Don t Panic Making Progress in the Going Dark Debate Feb 5 2016 panichetter CvrusVance Re Dontl anicpdt Apple itself states that less than 0067396 of customers have been affected by government information requests 163 com rivacit-f uestsf 136 our photos our music our notes our calendars and contacts our nancial information and health data even where we have been and where we are going 4 This is precisely why default device cripples even the most basic steps ofa criminal investigation In the past criminals kept evidence of their crimes in safes le cabinets and Closets Today criminals like the rest of us live their lives on smartphones and store evidence of their crimes on smartphones And when you consider that Apple s together with Android run 96 7 percent of smartphones worldwide it should be clear why investigating a case without access to this evidence is doing so with one hand tied behind our backs Opponents of our position also ask why law enforcement agencies cannot simply rely on data stored in the cloud First not all data on devices are backed up to the cloud Even data that can be backed up may not be because smartphone users are not required to set up a cloud account or back up to the cloud Even minimally sophisticated users who use their phones to perpetrate crimes know to avoid backing up their data to the cloud And even if a user chooses to use the cloud data on a device will not be backed up unless the device is connected to Wi-Fi 5 or for Android phones a cellular connection Additionally although it may be possible to recover at least some deleted data from an Apple device Apple states that once data has been deleted from an iCloud account Apple cannot provide it in response to a search warrant 4 Tim Cook Message to Our Customers Feb 16 2016 fl'wimv an ole comi customer-lette n 5' See Apple Security 9 0 or later Sept 2015 at p 42 137 Other opponents point to the availability of metadata which often can be obtained through service of a search warrant on a telecommunications carrier Metadata typically consists of the time at which a call was placed or a message sent the phone number of the caller or message-sender as well as the phone number of the recipient of the call or message and in the case of a phone call the duration of the call But metadata does not include the substance of a call or message Thus metadata while useful is extremely limited With it I can show that two people spoke before a criminal incident but I cannot show what they said and that information of course will be critical for proving their intent and the scope of their agreement For law enforcement to investigate prosecute and exonerate effectively the most substantive evidence should be reviewed and utilized Likewise iMessages the default messaging platform between Apple devices are transferred over Apple s servers rather than across telecommunications channels Thus telecommunications carriers are not privy to iMessages their content or their metadata Additionally Apple is not required by any regulation to retain that information Indeed Apple states that it does not retain the content of iMessages and does not provide iMessage data in response to court orders 6 The real-world effect of all of this is that Apple s policy frustrates the ability oflaw enforcement to prevent investigate and prosecute criminals including the very hackers that Apple claims it wants to protect users against It also impacts law enforcement s ability to exonerate those suspected of but not responsible for crimes 6 See Apple Security 9 0 or later Sept 2015 at p 39 Apple does not log messages or attachments and their contents are protected by end-to end so no one but the sender and receiver can access them Apple cannot the data 138 When Apple made the overnight switch to default device in September 2014 my Of ce began tracking the number of cases in which we recovered iPhones that we could not unlock and that we reasonably believed contained data pertinent to the case that we were investigating As of the November 2015 release of our Reporter and Public Safety we were locked out of 111 Apple devices running 108 8 or higher That number is now 175 comprising one quarter of the approximately 670 Apple devices received by our in house Cyber Lab during that same period As Apple users continue to migrate to the newer operating systems the percentage of devices that we are unable to access has increased signi cantly in fact in recent months approximately one out of every two Apple devices collected by my Of ce s Cyber Lab is inaccessible These numbers do not include Android devices or any devices that may have been processed by other district attorneys in New York City or by the New York City Police Department The 175 Apple devices from which my Of ce is locked out represent investigations into the attempted murder of three individuals the sexual abuse of a child sex traf cking child pornography assault robbery identity theft and all manner of other crimes My colleagues from jurisdictions around the country have been running into the same road blocks in their efforts to investigate and prosecute serious crimes For example last year in Texas Harris County District Attorney Devon Anderson s Of ce encountered more than 100 Apple devices from a variety of cases including human traf cking violent street crimes and sexual assaults In 2016 the problem continues with investigators unable to access eight to ten Apple devices every month Similarly in just the past two months in the Chicago area Cook County State Attorney Anita Alvarez s Cyber Lab has received 30 139 devices that they are unable to access The Connecticut Division of Scienti c Services has encountered 46 Apple devices across a variety of criminal cases including several matters involving child pornography As prosecutors we have the extraordinarily difficult task of explaining to crime victims or their surviving family members that we have hit an investigative road block or dead end in their case simply because Apple states that it will not comply with search warrants In this debate among law enforcement leaders intelligence of cials civil liberties proponents and technology companies one important voice has largely been left out that of crime victims and their loved ones Safe Horizon the nation leading victim assistance organization recently explained how signi cantly will hurt crime victims It is important to note the devastating impact that smartphone can have on victims of crime and abuses As a result of default device perpetrators of child abuse and sexual assault are far less likely to be held accountable for these and other crimes We recognize and respect a phone user 5 right to privacy However it is imperative that all evidence pertaining to criminal activity be available to law enforcement agencies with duly authorized search warrants We owe no less to survivors of child abuse human traf cking domestic violence and other violent crimes 7 ll Achieving a Balance Between Privacy and Security My Of ce 5 Report 7 drafted in consultation with technologists and law enforcement partners 7 proposed a solution that we believe is both technologically and politically feasible Keep the operating systems of smartphones but still answerable to search warrants issued by nerrtraljudges We do not want a backdoor for 7 Safe Horizon Safe Horizon on Apple s Opposition to Bl Accessing Smartphones Feb I 8 20 6 140 the government to access users information and we do not want a key held by the government We want Apple Google and other technology companies to maintain their ability to access data at rest on phones pursuant to a neutral judge s court order My Of ce has drafted and provided to members of Congress proposed federal legislation that requires designers of operating systems used on devices manufactured leased or sold in the United States to ensure that data on those devices pursuant to a search warrant are capable of being accessed in form Designers would not be responsible for or ensuring the government s ability to any data by a user unless the used was part of the operating system 3 design This solution represents the reasonable achievable middle ground in this debate Throughout our history the government has enacted statutory schemes to balance business concerns with law enforcement compliance particularly when those businesses products become an integral part of our lives Those businesses recognize that they have a corporate responsibility to help protect victims from crime being perpetrated through the use of their products One example is banks and nancial institutions As we learned more about how criminals were using banks to move money Congress enacted statutes related to money laundering fraud and document preservation Similarly when it became clear that criminals were using phone lines to perpetrate crimes Congress passed the Communications Assistance for Law Enforcement Act requiring telephone companies to provide an access point for wiretaps Indeed companies from every sector nance health care transportation energy manufacturing and telecommunications to name a few recognize and comply with the 141 obligation to respond to signed court orders arising out of criminal cases For example in 2014 Verizon received 287 559 United States law enforcement requests for data they received 149 810 requests in the rst half of 2015 8 Facebook received 29 707 United States law enforcement requests for data in 2014 for the first half of 2015 they received 17 577 requests g Now that smartphones have become as ubiquitous as landlines it is time for Congress to enact legislation ensuring that law enforcement can access evidence of crime stored on smartphones with ajudicial order Rather than accepting its corporate responsibility Apple touted in its marketing of 8 that Apple will not perform data extractions in response to government search warrants because the les to be extracted are protected by an key that is tied to the users passcode which Apple does not possess 10 In refusing to assist law enforcement Apple contends that doing so would leave their customers information open to hackers foreign dictatorships 11 and other bad actors Before I address that argument I want to emphasize that there is probably no local law enforcement of ce in the country 8 Verizon United States Report 9 Faeebook United States Law Enforcement Requests for Data lattes f tzestrequests ifs ill 1 This language was previously found at informatierrure HESEL 1 Many in the technology industry that if the US government seeks access to smartphone evidence the government will have little room to object to requests from repressive regimes See Open letter to Pres Barack Obarna May 19 2015 sg 3138ml This assertion ignores the fact that local law enforcement in the US seeks access to information only through a lawful judicial process If a foreign nation s government repressive or not wanted information from an American company it also would have to go through lawful processes in the U S either pursuant to a Mutual Legal Assistance Treaty MLAT or a letter rogatory 1f the foreign government used the MLAT process the executive branch of the federal government would decide whether in its discretion the foreign government s request was proper lf the foreign government used a letter rogatory a federal court would make that determination In either case the request could be refused if the information was sought for use in a proceeding that would violate human rights 142 that deals with more cybercrime and identity theft than mine so of course we understand the importance of We want smartphone makers to offer the same strong that Apple employed before 8 Those previous mobile operating systems allowed data to be accessed on a seized device with a valid court order and I am not aware of any documented security problems with those operating systems Apple has never explained why its prior systems lacked security or were vulnerable to hackers and thus needed to be changed Indeed Apple characterized its prior as the ultimate in privacy Apple s May 2012 guide to Security published before its switch to default device notes that Apple is committed to incorporating proven methods and creating modern mobile-centric privacy and security technologies to ensure that devices can be used with confidence in any personal or corporate environment 12 According to Apple 7 provides solid protection against viruses malware and other exploits that compromise the security of other platforms And yet under 7 Apple maintained the ability to help in their own words police investigating robberies and other crimes searching for missing children trying to locate a patient with Alzheimer s disease or hoping to prevent a suicide 13 Apple itself has demonstrated that strong and compliance with court orders are not incompatible 3 Apple Security May 2012 purity Mav 12 pdf 3 Apple Apple s Commitment to Customer Privacy June 2013 j w tvxya' lecom a alesmoomrnitment towcustomerw rivacvi lO 143 Furthermore it is not entirely clear what cybersecurity problem Apple s new is intended to solve lndivi duals phones were not being stolen and hacked into Prior to 8 to bypass the lock on a passcode protected phone Apple required both possession of the phone and ii its custom method to bypass the device We never held the key we have never wanted to hold the key and we have never heard about a key held by Apple being stolen Even if a hacker were able to learn Apple s process 7 which Apple guards closely 7 that hacker would also need to have the actual device to steal its data Likewise a thief who steals a person s locked smartphone would also need to know either the victim s passcode or Apple s highly guarded process to obtain the device s data There has been much discussion and concern about large-scale institutional data breaches involving Home Depot Target and other large companies These breaches are deeply disturbing of course but they have nothing to do with the level of on iPhones These two issues large-scale data breaches from servers and smartphone should not be conflated Apple s default device would do nothing to protect against large-scale institutional data breaches or the use of malware Apple and other proponents of device have portrayed the new policy as a response to the concerns raised by Edward Snowden ab out data collection by the National Security Agency But once again data collection has nothing to do with smartphone Smartphone would not have prevented the mass collection of phone-call data or the interception of telecommunications as revealed by Mr Snowden 4 Mr Cook stated in his February 16 2016 letter to customers that in the wrong hands any software it creates For the government would have the potential to unlock any iPhone in someone s physical possession Emphasis added ll 144 Likewise Apple has not explained how any software it may create for purposes of responding to search warrants software which Apple keeps in its sole possession would fall into the wrong hands In its refusal to assist the government Apple has not addressed the fact that it already can and frequently does bypass iPhone users passcodes For example Apple has the ability to access an Apple device remotely such as when it tracks the location of a device and erases its contents remotely Find My iPhone or when it sends software updates to the customer s iPhone Apple is able to do these things without knowing the particular device s passcode But Apple has never contended that the existing means for tracking and wiping devices remotely or pushing software updates may be exploited by bad actors Rather Apple maintains that its customers data is secure Furthermore Apple allows corporate administrators and other employers through mobile device management solutions to access organizationnowned and employeenowned devices remotely and to modify the devices 108 software settings and data According to Apple an MDM server can perform a wide variety of administrative commands including changing configuration settings automatically without user interaction locking or wiping a device remotely or clearing the passcode lock so users can reset forgotten ptvisswords 15 Apple has never explained why MDMs tools that Apple enables and promotes and which allow third parties to access a user s iPhone without a passcode do not compromise an iPhone user s security while any software Apple develops in order to comply with a search warrant may fall into the wrong hands I previously sought answers to a few of the questions raised in this testimony in letters sent to Apple and Google in April 2015 To date I have not received a response l5 See Apple Deployment Overview for Enterprise Enterprise Deployment Qverviewpdf 12 145 from either company Those letters are annexed to my Office s Report on Smartphone and Public Safety 111 Conclusion Apple s in uence can be felt in every corner of the globe In its scal quarter ended December 26 2015 alone Apple reported record pro ts of $18 4 billion 16 But Apple is not above the law 17 and its bottom line is not more important than the safety of Americans In Mr Cook s February 16 2016 letter he argues that the request for assistance in the San Bernardino case threatens the security of our customers Mr Cook and his colleagues at Apple have effectively decided that they know better than our elected representatives and professionals in law enforcement how best to keep Americans safe In the absence of laws that keep pace with technology we have enabled Apple and other technology companies to upset the balance between privacy and public safety established by centuries of jurisprudence Technology companies should not be able to dictate who can access key evidence in criminal investigations No device or company no matter how popular should be able to exempt itself from court obligations unilaterally And they should not be able to write their own laws 1 do not believe Americans would want to cede this vast authority to private enterprise That authority should rest with the people s elected officials I urge Congress to enact a national solution Thank you for the opportunity to participate in this critically important discussion 1 Apple Apple Reports Record First Quarter Results Jan 26 2016 r hyww apple cems piy 1i rarw'E 0 6 01f2fiApple Re ports-Remrd-Firstmijuarte r-Results html 7 Notably in testimony before the US Senate Judiciary Committee in 2013 Mr Cook told lawmakers We not only comply with the laws but we comply with the spirit of the laws ht decomi arf dfl'tirncooko Jeninastatement adf l3 146 Mr GOODLATTE Thank you Mr Vance We'll now proceed with questioning of the witnesses under the 5minute rule and I'll begin by recognizing myself Mr Sewell Director Comey created a dichotomy between this being a technology problem or a business model problem and said that Apple was addressing this as a business model problem Is that a fair contrast or is this something else Mr SEWELL It's by no means a fair contrast Mr Chairman I've heard this raised before It was raised in New York It's been raised in San Bernardino and every time I hear this my blood boils This is not a marketing issue That's a way of demeaning the other side of the argument We don't put up billboards that talk about our security We don't take out ads that market our encryption We're doing this because we think that protecting the security and the privacy of hundreds of millions of iPhone users is the right thing to do That's the reason that we're doing this And to say that it's a marketing ploy or that it's somehow about PR really really diminishes what should be a very serious conversation involving this Congress the stakeholders the American people Just with respect to the New York case Judge Orenstein last night took on this issue head-on and he said in footnote 14 on page 40 he said I reject the government's claim I find Apple's activities and the position that they are taking conscientious and not with respect to PR or marketing Mr GOODLATTE Director Comey and Mr Vance seem to suggest that the security provided by encryption on prior devices is fine but advancing encryption technology is a problem What do you think about that Mr SEWELL So it's important to understand that we haven't started on a path of changing our technology We haven't suddenly come to the notion that encryption security and privacy are important At Apple this began back in 2009 with our encryption of FaceTime and iMessage We've been on a path from generation to generation as the software and the hardware allow us to provide greater security and greater safety and privacy to our customers What happened between iOS 7 and iOS 8 was that we were able to transform the encryption algorithm that is used within the software and the hardware of the phone to provide a more secure solution Mr GOODLATTE We are moving to end-to-end encryption on many devices and apps not just Apple iPhones Why is that happening Mr SEWELL I think it's a combination of things From our perspective at Apple it's because we see ourselves as being in an arms race in an arms race with criminals cyberterrorists hackers We're trying to provide a safe and secure place for the users of our devices to be assured that their information cannot be accessed cannot be hacked or stolen So from our perspective end-to-end encryption move is an effort to improve the safety and security of our phones From the terrorist's perspective I think it's an effort to communicate in ways that cannot be detected but the terrorists 147 are doing this independently of the issues that we're discussing here today Mr GOODLATTE Now if the FBI succeeds in getting the order that is in dispute that Apple has appealed to a final resolution however long that takes and they then get Apple to develop this device that will allow the 10 times and your--by the way all of us here we can't turn that off so---- Mr SEWELL Well we could show you how to do that Mr GOODLATTE Well but inside our firewall here we can't do that So we understand the reason but that creates a separate vulnerability does it not for people whose device falls in someone else's hands they could willfully try 10 times and erase what hasn't been backed up on the device But be that as it may if they were to get you to develop that code and to apply it and then to crack the four-digit code to get into the device once they get in there they could find all kinds of other restrictions that Apple has no control over right with regard to apps that are on the phone with regard to various other communications features that the consumer may have chosen to put on there Is that correct Mr SEWELL That's absolutely right Mr Chairman One of the most pernicious apps that we see in the terrorist space is something called Telegraph Telegraph is an app that can reside on any phone It has nothing to do with Apple It can be loaded either over the Internet or it could be loaded outside of the country And this is a method of providing absolutely uncrackable communications If what happens here is that Apple is forced to write a new operating system to degrade the safety and security in phones belonging to tens or hundreds of millions of innocent people it will weaken our safety and security but it will not affect the terrorists in the least Mr GOODLATTE Thank you very much My time has expired The gentleman from Michigan Mr Conyers is recognized for 5 minutes Mr CONYERS Thank you Mr Chairman And welcome to the witnesses Let me start off with Professor Landau Director Comey has just testified that until the invention of the smartphone there was no closet no room or basement in America that the FBI couldn't enter Did encryption exist before the invention of the iPhone Ms LANDAU Encryption has existed--for centuries And in particular there have been fights over encryption and the use of encryption in the 1970's about publication in the 1980's about whether NIST or the NSA would control the development of encryption for nonnational security agencies in the 1990's about whether there would be export controls on devices with strong encryption The White House changed those rules in 2000 We expected to see widespread use of strong encryption on devices and on applications and the technologists' response to Apple is What took you guys so long How in the face of all the cybersecurity problems that we've had did it take industry so very long to do this 148 Well as our technical expert let me ask you this Is there any functional difference between asking Apple to break its own encryption and what the FBI has demanded in California Ms LANDAU I'm sorry Asking Apple to break--I don't quite understand the question Mr CONYERS All right Ms LANDAU What Apple is being asked to do is to subvert the security controls and go around So it's not breaking the encryption but it's subverting its own security controls Mr CONYERS Right Ms LANDAU And is there any functional difference between that and---- Mr CONYERS And what the FBI has demanded in California Ms LANDAU What it's demanded in California is that Apple subvert its own security controls Mr CONYERS Uh-huh Let me ask Mr Bruce Sewell the same question What is the functional difference between ordering Apple to break its encryption and ordering Apple to bypass its security so the FBI can break the encryption Mr SEWELL Thank you Ranking Member Functionally there is no difference What we're talking about is an operating system in which the passcode is an inherent and integrated part of the encryption algorithm If you can get access to the passcode it will affect the decryption process itself What we're being asked to do in California is to develop a tool a tool which does not exist at this time that would facilitate and enable the FBI in a very simple process to obtain access to the passcode That passcode is the cryptographic key So essentially we are throwing open the doors and we are allowing the very act of decryption to take place Mr CONYERS I was hoping you'd go in that direction Let me ask you this There has been a suggestion that Apple is working against law enforcement and that you no longer respond to legal process when investigators need your assistance Is that accurate Mr SEWELL It's absolutely false As I said in my opening statement we care deeply about the same motivations that motivate law enforcement The relationship with law enforcement falls within my shop at Apple The people that we have who assist law enforcement every day are part of my team and I'm incredibly proud of the work they do We have dedicated individuals who are available around the clock to participate instantly when we get a call As we've discussed a little bit earlier in Director Comey's testimony---- Mr CONYERS I want to squeeze in one more question before my time runs out Mr SEWELL All right I'll try to be very quick We do everything we can to assist law enforcement and we have a dedicated team of people who are available 24 7 to do that Mr CONYERS Why is Apple taking this stand What exactly is at stake in the San Bernardino case Mr SEWELL This is not about the San Bernardino case This is about the safety and security of every iPhone that is in use today And I'd like to address one thing that Director Comey raised This is--there's no distinction between a 5C and a 6 in this con- 149 text The tool that we're being asked to create will work on any iPhone that is in use today It is extensible it is common the principles are the same So the notion that this is somehow only about opening one lock or that there's some category of locks that can't be opened with the tool that they are asking us to create is a misnomer It's something that we needed to clarify Mr CONYERS Thank you for your responses Mr GOODLATTE The Chair recognizes the gentleman from Wisconsin Mr Sensenbrenner for 5 minutes Mr SENSENBRENNER Thank you very much Mr Sewell I think you know that I have been one of the privacy hawks on this Committee And the whole debate over the USA FREEDOM Act was whether the NSA should go to court and get some type of an order or a warrant specifically naming the person or persons whose data is requested And here the FBI you know has done that Now in your prepared testimony you said the questions about encryption should be decided by Congress rather than through a warrant based on a 220-year-old statute I point out that the Bill of Rights is about the same age Now the FBI's attempting to enforce a lawful court order Apple has every right to challenge that order as you have done But why is Congress and not the courts the best venue to decide this issue Mr SEWELL Congressman I think that ultimately Congress must decide this issue So I'm completely in support of the position that you're articulating I think we find ourselves in an odd situation in a court in California because the FBI chose to pursue in an ex parte fashion a warrant that would compel Apple to do something We view that not as an extension of the debate not as a way to resolve this issue we view that as a way to cut off the debate If the court were to grant the relief that the FBI is seeking we would be forced to do the very thing which we think is at issue and should be decided by the American people We'd be forced to create the tool Mr SENSENBRENNER Okay Now what's your proposed legislative response Do you have a bill for us to consider Mr SEWELL I do not have a bill for you to consider Mr SENSENBRENNER Okay Thank you That answers that Now the FBI has provided some fairly specific policy proposals to ensure that law enforcement can access encrypted data with a warrant What policy proposal would Apple support You don't like what the FBI said What's your specific response Mr SEWELL 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 But what I think we need to do is to give this an appropriate and fair hearing at this body which exists to convene and deliberate and decide issues of legislative importance We think that the problem here is we need to get the right stakeholders in the room This is not a security-versus-privacy issue This is a security-versus-security issue and that balance should be struck we think by the Congress Mr SENSENBRENNER Well you know let me make this observation you know having dealt with the fallout of the Snowden revelations and the drafting and garnering support of USA FREEDOM 150 Act I can tell you I don't think you're going to like what comes out of Congress Mr SEWELL Congress we will follow the law that comes out of this process We certainly understand Mr SENSENBRENNER Okay Well the thing is I don't understand You don't like what's being done with the lawfully-issued warrant And most warrants are issued on an ex parte basis where law enforcement submits an affidavit before a magistrate or a judge and the judge determines whether the allegations of the affidavit are sufficient for the warrant to issue Now you're operating in a vacuum You've told us what you don't like You said that Congress ought to debate and pass legislation You haven't told us one thing about what you do like What are we going to hear what you do like so that Apple has a positive solution to what you are complaining about You said it's Congress' job to do it Now we won't shirk from that This hearing you know is a part of this debate The FBI has provided some policy suggestions on that You haven't said what Apple will support So all you've been doing is saying no no no no Now our job in Congress honestly you know as we did with the FREEDOM Act and as we are doing with the Electronic Communications Privacy Act update is to balance our belief that there should be privacy for people who are not guilty or suspected of terrorist activity and that there should be judicial process which there has been in this case And you know I guess that while your position is because you don't have anything positive you know is to simply leave us to our own devices Well we'll be very happy to do that but I can guarantee you you aren't going to like the result I yield back Mr SEWELL Congressman I do think we have said what we stand for and what we believe is the positive place Mr SENSENBRENNER No You know the thing is you've asked Congress to do something and I asked you what Congress should do You said we have nothing Then I said the FBI has provided specific policy proposals to ensure law enforcement is able to get this information Now here we're talking about the iPhone of a dead terrorist that was not owned by the terrorist but was owned by San Bernardino County Now you know the thing is is that I don't have a government iPhone I have my own iPhone which I use extensively But the terrorist had you know a government iPhone which belonged to the government I think the government San Bernardino County specifically would like to get to the bottom of this and you're resisting it I said my peace Mr GOODLATTE Time of the gentleman has expired The gentleman from New York Mr Nadler is recognized for 5 minutes Mr NADLER Thank you Mr Chairman Let me begin by welcoming my constituent and the great district attorney of New York County Cy Vance by saying that I appreciate his enlightenment of the district attorney's views of this dilemma that we all face 151 Let me also suggest in answer to Mr Sensenbrenner's questions that I assume that Apple may have legislative suggestions for us after the courts come out with their determinations and Apple decides they like the determinations or they don't like the determinations at which point Apple and a lot of other people in institutions I assume will decide on specific legislative proposals And it may very well be that this Congress will wait to see what the courts do but we will see Let me begin my questions District Attorney Vance Director Comey suggested earlier today that the relief sought by the FBI is limited to this one device running this particular operating software in this one case Now I gather that you've mentioned you have over 200 phones faced with a similar problem---- Mr VANCE Yes Mr NADLER continuing That you don't really think that this case will be limited to the one device that obviously it's going to set a precedent maybe not the only precedent for a large class of devices including the ones that you're interested in Mr VANCE There may well be an overlap between action in Federal court where the FBI is in litigation and in State court I do believe that what we should be seeking collectively is not a phoneby-phone-by-phone solution to accessing devices and the contents when there's probable cause we should be creating a framework in which there are standards that are required to--for a court to authorize access to a device and that it's not based upon litigation as to whether you can get into a West Coast phone or an East Coast phone Mr NADLER Well I assume that eventually either the courts will set one standard or Congress will have to consider it Mr VANCE Right Yes Mr NADLER Professor Landau several of your colleagues recently published the results of a survey of over--and this is similar to a question I asked Director Comey Several of your colleagues recently published results of a survey of over 600 encryption products that are available online More than 400 of these products are open sourced and made or owned by foreign entities If Congress would have passed a law or for that matter if the courts were to impose a requirement that forcing U S companies to provide--forcing U S companies to provide law enforcement with access to encrypted systems would that law stop bad actors from using encryption from open sources or foreign sources Ms LANDAU Absolutely not Absolutely not And what Apple's product does is it makes encryption easy by default And so it means as I said the secretary to the Chair of the Federal Reserve the HVAC employee the chief of staff in your office--of course your office should be protected anyway but the regular person using a phone has the phone secured If Congress were to pass a law prohibiting use of encryption on Apple phones or however--you know you wouldn't say it just for Apple what it would do is it would weaken us but not change it for the bad guys Mr NADLER And if someone purchased a phone from a foreign company it could have the encryption that we prohibited an American company from creating 152 Ms LANDAU That's--if someone purchased a foreign phone somebody can just download the app from abroad They don't have to buy a foreign phone They can just download the app from anywhere Mr NADLER And let's assume that Congress decided to prohibit purchase of foreign encryption systems Is there any practical way we can enforce that Ms LANDAU No I mean you would have to start inspecting so much as it comes over the Internet that it becomes an intrusive---- Mr NADLER So what you're saying is that we are really debating something that's undoable Ms LANDAU That's right And we were there 20 years ago which the open-source issue was part of the reason for the U S Government's change in export controls which is part of what enabled---- Mr NADLER Okay Let me ask two very quick questions before my time runs outs Mr Sewell the Eastern District Court yesterday in its ruling that has been referred to cited no limiting principle to the legal theory behind the FBI's request as a reason to deny the order Is there a limiting principle in the San Bernardino case Mr SEWELL Absolutely none Congressman Mr NADLER None So it can be expanded indefinitely And finally Mr Sewell your brief Apple's brief to the court lays out several constitutional concerns There's computer code speech as protected under the First Amendment What are the First and Fifth Amendment--well let me just ask what are the First and Fifth Amendment questions does this case raise We've been talking about statute but let's ask about First and Fifth Amendment questions Mr SEWELL Right Good question Congressman And bear in mind that what we're being asked to do is write a brand new computer code write a new operating system The law with respect to the applicability of computer code to speech I think is well established So this is a compelled speech by the government for the purpose of the government Mr NADLER Which is a First Amendment problem Mr SEWELL Which is absolutely a First Amendment problem And bear in mind this is a speech which Apple does not want to make This is our position On the Fifth Amendment the issue is conscription The issue is forced activity forced labor Mr NADLER Does anybody else on the panel want to comment on that question If not thank you My time is expired Mr Chairman Mr GOODLATTE The gentleman from California Mr Issa is recognized for 5 minutes Mr ISSA Thank you Mr Chairman And I'll pick up where you left off on forced labor Do you know of any place in our history in which except in time of war when things are commandeered and people are told to do that or when police are in hot pursuit do you know a time in which people were forced to apply their inventive genius against their will 153 Mr SEWELL Congressman I'm not aware of it The steel cases during the war were the ones that were most applicable Mr ISSA Sure And I certainly understand a different time and a different set of circumstances Now I want to do two things So Ms Landau I'm going to come to you first Your expertise is encryption You were probably very young but you remember 20 years ago the argument Wasn't it the FBI and then the late Mike Oxley and others that were championing that if we allowed more than 256-bit encryption then the FBI couldn't easily decode it and that would be the ruin of their investigations Ms LANDAU Right And what you get instead is over the last 20 years the NSA has increasingly supported the secure technologies for private sector communications infrastructure including the 256-bit algorithm Mr ISSA Okay I'm going to ask a quick question and it's old technology because I'm very good with analog world But this happens to be a January 29 2015 patent that's already in the record and it's a patent on basically self-destructing the contents inside if someone tries to forcibly open it Now the funny thing is I was looking for the old patents going back decades and decades because the military and others have used these They've had acids and even more punitive if you will responses inside when we wanted to secure it It's not a new technology but there's a new twist on it Aren't we in a sense the equivalent of saying well you can make something that destroys the documents but then you have to tell us how to defeat it Ms LANDAU That's exactly right Mr ISSA Okay And I'm looking and saying there's no history in that but we've had plain safes for a very very long time This isn't new Do you know of any shredder company that has been told that they have to show you how to reassemble what they've shredded Ms LANDAU I don't study shredding companies but I'd be very surprised if there were Mr ISSA Mr Vance have you ever ordered a shredding company to put the paper back together use their inventive genius---- Mr VANCE Of course I haven't Congressman but--but---- Mr ISSA So you're asking in this case for somebody to create a product for your service And I want to focus on that and I'll get to you I promise But Mr Sewell I'm going to look at you as the representative of the one of the great technology companies in our country Apple gets its great technology people I assume from Stanford and MIT and other great universities right Mr SEWELL We do yes indeed Mr ISSA And you don't get all the graduates right Mr SEWELL No we don't We wish we did Mr ISSA So when I was talking to the Director and saying well if you take--and it's a hypothetical My level of knowledge is way less than any of your folks and probably any of the FBI's But if you take this hard drive solid-state hard drive you pull it apart-- and he even used the word ''mirroring '' Obviously he had some 154 discussion at some point--and you make as many images as you want then you have a true original but even if the self-destruct occurs that original you throw it away you take another one So that part of what he's asking you to do they can do themselves by pulling the chip out and having it imaged if you will in all likelihood We're not saying for sure But he hadn't checked it So that's a possibility Is that right Mr SEWELL I believe so We don't know what the condition of the phone is and we don't know what the condition of the RAM is but yes Mr ISSA Sure And of course we're not really talking about one phone We know that We're talking about thousands of phones And as I understand the technology used in your chip is you have burnable traces in your chip So randomly or in some way when you're producing each chip you burn traces which create the encryption algorithm and it's internal So the chip has its algorithm separate from the software But that chip when interfacing with an image if you keep giving it new images that's the part that changes So isn't it at least conceivable that as to that phone and perhaps the 175 in New York and others that the FBI or the NSA could in fact come up with an elegant brute force attack that would work on your phones and also would work on hundreds of other types of phones around the world and that that technology with if you will those brilliant young minds from Stanford MIT and Kent State my alma mater you know could in fact produce something that would not be available to the public they would have control over and they would be able to make it more universal than just trying to go through your source code which I understand--is it correct-- they've never asked for Is that right Mr SEWELL We've never been asked for our source code Mr ISSA Okay Mr Chairman if anyone else wants to opine on it I would appreciate they be able to Mr GOODLATTE Chair thanks the gentleman and recognizes the gentlewoman from California Ms Lofgren for 5 minutes Ms LOFGREN Well thank you very much I think this hearing is very helpful And just to get it on the record Mr Sewell I mean you're not objecting--let me step back If you have something and you are served with a warrant you give that something up Is that correct Mr SEWELL That's absolutely correct yes Congresswoman Ms LOFGREN So the issue here is you don't have it you've got no way to get it and therefore you can't give it right Mr SEWELL That's correct Ms LOFGREN Now if it were possible to do something that would get just this one thing without opening the door to everybody else's stuff would you have a problem with that Mr SEWELL Let me---- Ms LOFGREN Let me rephrase that because you're in court Mr SEWELL Sure Ms LOFGREN That would be a different issue than breaking encryption generally wouldn't it be Mr SEWELL The best analogy that I can come up with and I've been struggling with how do we create the right kind of analogy 155 for this situation If Apple had a box somewhere that we could guarantee we could assure 100 percent certainty that anything that was put in that box was not susceptible to thievery to attack to corruption if we had such a place in the world we wouldn't be here today---- Ms LOFGREN Right Mr SEWELL continuing Because what we would have done is gone to our customers and we would have said give us your passwords We can absolutely 100 percent protect them And then if you lose your phone if you need our help we can just give you the passcode Ms LOFGREN But you didn't do that because you can't guarantee that which is why you encrypted this phone Mr SEWELL Exactly right And now the bizarre situation is that essentially the FBI is saying We all realize it's silly that everybody would give you your password but instead we want you to build a tool that will get those passwords and we're telling you you can put that tool in this box that doesn't exist Ms LOFGREN So let me ask you this Is it possible theoretically to create code that would preclude you from creating a system that would allow you to defeat the 10-try erase function Mr SEWELL We could write a program that would suppress that protective measure Ms LOFGREN So that you couldn't do what it is you're being asked to do Mr SEWELL Right We're being asked to do three things but it is capable--we are capable of doing those three things The issue is what's the consequence of doing those Ms LOFGREN Right But the question is also I mean this hearing caused me to go in and turn on the 10-erase function which I neglected to do before the hearing thank you very much But you know as you go forward people are insecure about what's safe Mr SEWELL Absolutely Ms LOFGREN And you know for example you don't have--and I think for good reason--what's in iCloud is not encrypted Is it possible to encrypt the data in iCloud Mr SEWELL Yes actually in the iOS 8 and 9 generation we have encrypted the iCloud data It's encrypted in a different way than it was before and we think in a more secure way Ms LOFGREN Right But you can still provide access to that Mr SEWELL It is encrypted in a different way---- Ms LOFGREN But you could change that if you wished Mr SEWELL Yes Ms LOFGREN Now let me ask you this Dr Landau Now you were involved with that paper that was published I think last year Ms LANDAU Keys under Doormats Ms LOFGREN Thank you That was an excellent paper And I think for anybody who has--it's dense I had to read some pages two and three times to understand it But for anybody--and actu- 156 ally I've asked unanimous consent Mr Chairman to put that paper in the record from the cryptographers Mr GOODLATTE Without objection it will be made a part of the record Ms LOFGREN If you just go to the questions at the end you see that this is a fool's errand We'll never be able to do what is being asked of us by the FBI It's a practical matter it's just not achievable But I'm interested in your take on you know Director Comey said you know they don't want the master key They just want this one bypass on security Isn't that exactly the same Ms LANDAU It's wrong and it's just as Mr Sewell said once they've built that software that software works for other phones Of course it has to have the serial number of the particular phone so Apple has to sign--you know has to take the software put in a new serial number sign it so the new phone accepts it And that's where all the security risks comes in because it becomes a routine process and as I mentioned during my remarks routine processes get subverted Ms LOFGREN I'll ask the final question Mr Sewell it was asked earlier by my colleague Mr Richmond about whether these other countries have better security than we do If I take my phone my iPhone with the current operating system to Russia or China can they break into it Mr SEWELL With respect to the phone itself we believe the encryption we provided in iOS 8 makes that effectively impossible With respect to the things that are going on at the Internet level there are very sophisticated techniques that can be used by malicious actors who have access to the Internet itself There are ways to fool the Internet into thinking that something is what it isn't And so I think there is a vulnerability still in that regard But on the phone what we've tried to do is to remove that possibility with iOS 8 and 9 Ms LOFGREN Thank you very much all of you for your testimony Mr GOODLATTE The Chair thanks the gentlewoman and recognizes the gentleman from Texas Mr Poe for 5 minutes Mr POE Thank the Chairman Thank you all for being here Fascinating important discussion on this issue of as you say security insecurity As you know I'm a former prosecutor and former judge and dealt with warrants for 30 years either requesting them or signing them And this particular case I think we're really talking about two cases now We're talking not just about the San Bernardino case but the New York case as well Different facts different issues Fourth Amendment we have discussed--Fourth Amendment doesn't really apply too much to this situation because the possession of the item is lawful in the possession of government I do think it's ironic however we're talking about privacy United States is supposed to lead on the issue I think on the issue of pri Note The material referred to is not printed in this hearing record but is on file with the Committee Also see Lofgren Submission at http docs house gov Committee Calendar ByEvent aspx EventID 104573 157 vacy We're the only one that has a Fourth Amendment But we see that other countries seem to have more concern about privacy in their technology than maybe we do I find that somewhat ironic Let me ask you a couple questions You discuss the idea of constitutional right right of privacy But in one of your testimonies and I think it was Mr Nadler from New York he and I have a language barrier problem so I'm not sure I understood his question You mentioned the First Amendment and the Fifth Amendment Is that correct Mr SEWELL I did that's correct Mr POE Briefly explain how you see this as a First Amendment issue as well as a Fifth Amendment issue We don't need to talk about the Fourth Amendment We've discussed that Mr SEWELL The Fifth Amendment issue derives from the fact that we're being asked to write code and code is speech and Supreme Court has held that that speech is protectable So we're being asked to speak by the government That speech is not speech that we want to make And the First Amendment provides us with protections against being compelled to speak by the government So that would be the First Amendment argument in a nutshell The Fifth Amendment provides us with protection from conscription protection from being forced into labor at the government's will except under the most extraordinary of circumstances which I discussed with Congressman Issa But that's the Fifth Amendment issue Mr POE All right Thank you What this request the results of the request how would that affect Apple worldwide in other countries Mr SEWELL Well there are a number of parts of that question Congressman so thank you The way that this would affect Apple is that it would affect our customers It would affect everyone who owns an iPhone and it would create a risk for everyone who owns a phone that their data could be compromised that their security could be compromised With respect to the international question I agree with you I think America should be leading on this issue And I think that the world is watching what happens right now in our government and what happens even today with respect to this particular debate Our ability to maintain a consistent position around the world our ability to say that we will not compromise the safety and security of any of our users anywhere in the world is substantially weakened if we are forced to make that compromise here in our own country So I urge this Congress and I urge the government generally to understand that to take a leadership role give us the strong support that we need to resist any effort by other governments to weaken security and privacy Mr POE One of the questions that was asked was talking about what is your solution and I actually agree with Mr Nadler I know this is going to bother him a little bit that there may be after all this litigation and there may be a solution that we haven't thought of yet but would not one option be Congress taking the position that prohibits the backdoor key security system the Viper system as I call it from---- Mr ISSA Thank you Mr Poe 158 Mr POE I said that earlier but you stepped out The Viper system from being imposed required prohibit that from government requiring that type of system in specific technology like an iPhone Mr SEWELL I think that is certainly one possibility yes sir Mr POE Prohibit the key Let me ask you something else If courts rule that you're required to develop the technology develop the software would that software be able to be used on all those other hundreds of phones that are out there that the government lawfully has in their possession but they can't get into Mr SEWELL Absolutely There's nothing that would preclude it from being used on any iPhone that is in use today Mr POE And my last question would other countries then if U S takes the position thou shalt give government the key what will other countries like China require or request or demand of Apple Mr SEWELL So to date we have not had demands like that from any other country The only place that we're having this debate is in our own country But as I said before I think if we are ordered to do this it will be a hot minute before we get those requests from other places Mr POE All right Thank you Mr Chairman I yield back Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentleman from Georgia Mr Johnson for 5 minutes Mr JOHNSON Thank you and thank the witnesses for being here Mr Vance what's the difference between a company being ordered to use its best efforts--I think the language is--let's see-- reasonable--an order--a court order requiring reasonable technical assistance What's the difference between a court order requiring reasonable technical assistance to accomplish the bypassing or disabling of the auto-erase function versus a civil subpoena or a court order pursuant to a subpoena a motion to compel the delivery of information under that person's custody and control Is there a difference Mr VANCE I'm not sure Congressman there is a difference They're both court orders that are directing an end result One may be in a civil context one in a criminal context But I would say that in this discussion it's very much a part of our history in America that when companies produce items or objects or commerce becomes ubiquitous in a particular area that the company has to have the realization that part of a group of people who are using its products are using it to commit criminal purposes Take a look at the banking system currency transaction reports So once it became obvious that criminals were moving cash through the banks the response was you have to create and file transaction reports when cash is moved When two companies like these two hugely successful and important companies own 96 7 percent of the world's smartphone market and we know that criminals--we know that criminals are using the devices to commit crimes--we've heard some of those stories--I don't think that it is new in American history or in the con- 159 text of business ethics or oversight for companies to have to adapt to the realities of the product they've created Mr JOHNSON Because they are the only ones that can--a bank that received the cash would be the only entity in a position to submit a currency transaction with the court Mr VANCE It would be the only one required to If someone else had information about it they could submit it but it would be the only one who had firsthand knowledge Mr JOHNSON Okay Now Ms Landau is it your opinion that the government should not have the ability to compel Apple to use its best efforts to accomplish a technical feat Is that your opinion Ms LANDAU So there are two answers to that If you're asking me a lawyer question then I'm not a lawyer and I'll dodge but if you're asking me as a technologist then I would say that it is a security mistake It's a security mistake because that code---- Mr JOHNSON Because what Apple would do would inherently cause an insecurity in their system Ms LANDAU That's right And it will be the target of organized crime and nation states because it will be very valuable for somebody who puts a phone down as they go through Customs for somebody who goes to a business meeting and they're not allowed to bring their phone in because it's a meeting under nondisclosure and the phone is sitting outside for a few hours All sorts of situations The phone will become very interesting And if there's code that can actually get into the phone and get the data that code is going to be the target of nation states---- Mr JOHNSON So once Apple creates the code then it makes it susceptible to being stolen and misused Ms LANDAU That's right Mr JOHNSON So therefore Apple should not be required to comply with the court order Ms LANDAU I'm not answering the legal question I'm answering the security question The security question it makes a real mistake Mr JOHNSON Yeah Okay And Mr Sewell you would agree with that Mr SEWELL I would agree that if we're forced to create this tool that it reduces the safety and security not within our systems Congressman but with our users Mr JOHNSON Let me ask you a question What about the security and the safety of those whose liberty can be taken and lives can be taken due to an ongoing security situation which the FBI is seeking to get access to information about Is there an interest in the public security that we're talking about here Mr SEWELL Congressman that's what---- Mr GOODLATTE The time of the gentleman has expired but Mr Sewell may answer the question Mr SEWELL That's what makes this such a hard issue because we're balancing two different but very similar issues private security the security of people who use iPhones the location of your children the ability to prevent your children from being kidnapped or harmed versus the security that's inherent in being able to solve crimes 160 So it's about how do we balance these security needs how do we develop the best security for the United States If you read the statements by General--any of the encryption specialists today we'll say that de-featuring or debilitating encryption makes our society less safe overall And so that's what we're balancing Is it the right thing to make our society overall less safe in order to solve crime That's the issue that we're wrestling with Mr JOHNSON Thank you I yield back Mr GOODLATTE The Chair recognizes the gentleman from South Carolina Mr Gowdy for 5 minutes Mr GOWDY Thank you Mr Chairman Now Mr Sewell you just mentioned a balancing Can you give me a fact pattern where Apple would consent to the magistrate judge's order in California Mr SEWELL Congressman we will follow the law If we're ordered to do this---- Mr GOWDY No I'm asking for a fact pattern You mentioned balancing I want you to imagine a fact pattern where you balance the interest in favor of what the Bureau is asking you to do as opposed to your current position Give me a fact pattern Mr SEWELL Congressman what I said was we have to balance what is the best security for the country Not balance when we should give law enforcement what they're asking but balance what's the best security for the country Mr GOWDY I thought that's what we were balancing is public safety versus privacy You also mentioned the First and Fifth Amendment Can you give me a fact pattern where Apple would consent to the order of the magistrate judge Mr SEWELL Congressman what I said was privacy security personal safety Mr GOWDY Perhaps I'm being ambiguous in my asking of the question Can you give me a fact pattern where you would agree to do what the Bureau is asking you to do in California whether it be nuclear weaponry whether it be a terrorist plot Can you imagine a fact pattern where you would do what the Bureau is asking Mr SEWELL Where we would create a tool that doesn't exist---- Mr GOWDY Yes Mr SEWELL continuing In order to reduce the security and safety of our users Mr GOWDY Yes Mr SEWELL I'm not aware of such a fact pattern Mr GOWDY So there is no balancing to be done You have already concluded that you're not going to do it Mr SEWELL No I've said that we will follow the law If a balance that is struck if there is an order for us to comply with we---- Mr GOWDY There is an order Mr SEWELL That order is being challenged at the moment as we speak There's an order in New York that says---- Mr GOWDY I'm glad you mentioned the order in New York That's a drug case You would agree with me the analysis in drug cases is very different from the analysis in national security cases 161 And even if you didn't agree with that you would agree that in footnote 41 the magistrate judge in New York invited this conversation about a legislative remedy which brings me back to Chairman Sensenbrenner's question Where is your proposed legislative remedy Mr SEWELL We don't have legislation to propose today Congressman What we've suggested---- Mr GOWDY Well then how will we know whether or not you think it strikes the right balance if you don't tell us what you think Mr SEWELL Congressman where we get to the point where it's appropriate for us to propose legislation not just Apple but the other stakeholders that are engaged in this process I'm sure there will be legislation for Congress to consider Mr GOWDY Well let the record reflect I'm asking you for it now I would like you to tell us what legislative remedy you could agree with Mr SEWELL I don't have an answer for you today No one's had an answer for you today Mr GOWDY Can you give me one I don't know whether Apple has a lobbyist I suspect that you may have a government relations department possibly Can you submit legislation to Chairman Sensenbrenner's question that you could wholeheartedly support and lobby for that resolves this conundrum between you and the Bureau Mr SEWELL It is my firm belief that such legislation can be drafted I do not have language for you today Mr GOWDY Well but see Mr Sewell we draft it and then your army of government relations folks opposes it So I'm just trying to save us time The judge in New York talked about a lengthy conversation Sometimes circumstances are exigent where we don't have time for a lengthy conversation So why don't we just save the lobbying and the opposing of whatever Cedric Richmond or Hakeem or Luis and I come up with Why don't you propose it Tell us what you could agree to Mr SEWELL Congressman we're willing to and we've offered to engage in that process Mr GOWDY The legislative process or the debate process Mr SEWELL Both of course Mr GOWDY Will you submit legislation to us that you could live with and agree with Mr SEWELL If after we have the debate to determine what the right balance is then I think that's a natural outcome Mr GOWDY Well how long is the debate going to last Mr SEWELL I can't anticipate that Congressman Mr GOWDY Well let me ask you this You mentioned the First Amendment which I found interesting Are you familiar with voice exemplars Mr SEWELL I'm sorry Is that a case Congressman Mr GOWDY No Voice exemplars are ordered by courts and judges for witnesses or defendants to actually have to speak So a witness can see whether or not that was the voice that they heard during a robbery for instance Because you mentioned you have a First Amendment right to not speak What about those who have 162 been immunized and still refuse to cooperate with a grand jury and they are held in contempt and imprisoned So there are lines of cases where you can be forced to speak Mr SEWELL Congressman we've made an argument a constitutional argument If the courts determine that that argument isn't firm then we will lose the argument Mr GOWDY I'm just asking you whether or not you agree that there are exceptions Mr SEWELL You've given me two examples that I've not heard of before Mr GOWDY All right How about back to the Fifth Amendment because I'm out of time Really quickly the Fifth Amendment you say you're being conscripted to do something But there's also a line of cases where folks are conscripted to perform surgical procedures or cavity searches or other things I won't go into in mixed company where they are looking for contraband So that's a nurse or a doctor or an anesthesiologist that is conscripted by the government you would agree Mr SEWELL I'm not familiar with these cases But this is what the court will decide Mr GOWDY Here's what I'll do I'm out of time I'll get you the cases I'm relying on if you'll help me with the legislative remedy Deal Mr SEWELL I look forward to the cases Mr GOWDY Deal Thank you Mr GOODLATTE Time of the gentleman has expired The Chair recognizes the gentleman from Florida Mr Deutch for 5 minutes Mr DEUTCH Thank you Mr Chairman I would start by saying this is really hard I'm not looking to Apple to write the legislation to balance these very difficult issues between privacy and public safety I don't expect you to do it I expect us to grapple with it And that's what we're trying to do here today And I had raised the point earlier but it's a perfect lead-in to the questions I want to ask that this focus on surgical procedures that we can force--that the government can force a surgical procedure to be done sounds like it's somehow equivalent Certainly if we can do that then we can require that a company create a way into its phone Except as I said earlier with Director Comey that surgical procedure is going to be done by the person that the government says should do it And there is no one from around the world who from their remote location is going to be able to figure out how to conduct surgery on that individual Yet in this case and this is why this is so hard for me in this case there are people all over America and around the world who would be trying to figure out how to utilize whatever it is that's created here if this is where this goes to access the phone And Director Comey earlier--Mr Sewell Director Comey said it's a three step--he believes it's a three-step process that they're asking Can you just speak to that process Mr SEWELL I absolutely can Thank you Congressman 163 First I agree with you that this is not a problem which--there are people that are trying to break into these systems There are people who are trying to steal this information if it existed And their capabilities are increasing every day So this is not a threat which is static This is a threat which is increasing The three parts that we're being asked to develop are first a method to suppress the data deletion after 10 failed attempts The second thing that we're being asked to suppress is the time delay between successive attempts Both of these are specifically tailored to deal with the situation where your phone is stolen or some bad person is trying to break into it and it's specifically designed to defeat the brute force attack The third piece is interesting because the third piece is the government asking for us to rewrite the code that controls the touch screen and allow them to put a probe into the phone and to bypass the need to enter numeric digits through the touch screen The only reason that that makes sense Congressman is if you anticipate that this is going to be technology used on other phones and other phones that likely have more complicated passcodes Mr DEUTCH Right So that's the question and Mr Sewell it's a question for you and Mr Vance it's a question for you This is one where if I believed--if I understand that what's being asked of you is to create this weigh-in to this one phone then I want you to do it I do And I can get past a lot of these privacy issues if I believe that it's once in and then this can then be disposed of destroyed and that will be the end of it The question is is that the case And when you create it for this one is it something that can be used on other phones Director Comey I don't think was clear about that so I'd ask you that question and Mr Vance I'd ask you the same question Mr VANCE If I can refer to actually the Doctor's own paper You need the phone physically at Cupertino to open it And I refer you to her---- Mr DEUTCH I don't have much time I'm not sure that I understand what that means I just want to know--cutting to the chase I just want to understand if this is created is it something that not just could be used by you in the pursuit of justice but by the criminal cyber terrorist hackers and really dangerous people who are looking to do bad things every day of the year going forward Mr VANCE Congressman my point is simply that if this code is created and you are looking at the risk to other devices other Apple phones in the world those phones are going to have to come to Cupertino to be opened This is---- Mr DEUTCH Well let me ask Mr Sewell then I only have a couple seconds left Mr SEWELL That is incorrect Mr DEUTCH Well the question is even if that's correct I'd like you to speak to it Is it true that the hackers of the world that there will be those who try to find a way to get around having to take the phone to Cupertino in order to conduct whatever operation is necessary to break in Mr SEWELL Unquestionably Congressman and that's exactly the risk and the danger that we foresee 164 With respect to the comment that Mr Vance just made in fact the request that we got from the government in this case was that we should take this tool and piece--put it on a hard drive and send the hard drive to the FBI The FBI would then load that hard drive into a computer hook the phone up to the computer and they would perform the entire operation So that this whole tool is transportable on a hard drive So this is a very real possibility Mr DEUTCH So should we be concerned Mr Vance I mean look I want to get into this phone but shouldn't we be concerned if that's accurate that there's something that's being created that's transported on a hard drive that winds up on another computer that there is at least the risk that that gets stolen and then--and suddenly there is--that not just a bad person and these terrorists that we desperately want to get and get this information but suddenly all the rest of us who are trying to protect ourselves from the bad people and are trying to protect our kids from these bad people are potentially at risk too Mr VANCE Congressman I respectfully disagree with the colleague from Apple but I will confess that his knowledge of the company is great Apple has created a technology which is default disk encryption It didn't exist before It exists now Apple is now claiming a right of privacy about a technology that it just created That right of privacy didn't exist before Apple created the technology number one Number two I can't answer how likely it is that if the Federal Government is given a source code to get through the front door of the phone that is at risk of going viral I think it may be overstated to suggest that But I can tell you this If there's an incremental risk that providing the source code creates a vulnerability what is that risk Don't tell us just millions of phones might be affected tell us--I think they can do better than just giving us broad generalizations without specifics But I can tell you this The consequence the other side of the weight the consequence is in cases all over the country right now in my jurisdiction your jurisdiction everywhere families like the Mills family are not getting justice And the direct consequence of this disk encryption is that innocent victims all over the country are not getting their cases solved prosecutors are not doing the job that they have been elected and sworn to do and there is a significant consequence to default disk encryption that I think needs to be balanced against a speculative claim of increased insecurity Ms LANDAU I'd like to just add a couple of comments This is not about a new right of privacy it's about a new form of security And if we think about how the phones are used and increasingly how the phones are used I certainly have two-factor authentication I use through my phone but there are ways of using the phones as the original authentication device And if you make the phone itself insecure which is what is being asked for by law enforcement you preclude that and that is the best way to prevent stealing of log-in credentials the use of the phone as authenticator 165 In terms of the risk of the disk and so on it's not the risk of the disk going out because the disk is tied to a particular phone The risk is that somebody will come into Apple and provide a rogue certificate that you know they're from law enforcement or wherever and will get the ability to decrypt a phone that should not be decrypted whether it's the Chinese Government or an organized crime group or whatever That's the risk we're facing Mr VANCE May I Congressman with the Chairman's permission Mr DEUTCH My time is up The Chairman has been very generous Mr GOODLATTE Well beyond the time but briefly Mr VANCE The professor has not answered what about the people the residents the citizens the victims whose cases are being put on the side and not addressed why we have an academic discussion an important one---- Mr GOODLATTE Well it's an important academic discussion because before these phones existed the evidence that you're talking about didn't exist in the form that you have had access to Now the technology is moving to a new generation and we're going to have to figure out a different way to help law enforcement But I don't think we say we're not going to ignore these vulnerabilities that exist in order to not change the fact that law enforcement is going to have to change the way it investigates and gathers evidence The time of the gentleman has expired The Chair recognizes the gentleman from Illinois Mr Gutierrez Mr GUTIERREZ Thank you Mr Chairman First of all I'd like to ask through the Chair if Congressman Lofgren has a need for any time I'd like to yield to her first Ms LOFGREN Well I thank you very much You know I don't know you Mr Vance I'm sure you're a great prosecutor I do know Mr Sewell He's a great general counsel But the person who really knows technology on the panel is Dr Landau And I'm interested in your comments about the vulnerabilities that would be created by complying with the magistrate's order And some have suggested that it's speculative and you know academic and the like but is that what your take on this is Ms LANDAU Absolutely not Ms LOFGREN The theory--I mean we're moving to a world where everything is going to be digital and you could keep track of you know my--when I'm walking around the house I'm in my temperature opening the refrigerator driving my car And if that all is open to a legitimate warrant--I'm not downplaying the problem the prosecutors have but this is evidence you currently don't have access to--how vulnerable is our country going to be That's the question for you Ms LANDAU Extremely vulnerable David Sanger's article in today's New York Times about the Ukraine power grid says that they got in as I mentioned earlier through the log-in credentials It's based on a DHS memorandum that talks about locking down various systems I served for a number of years on NIST Information Security and Advisory--Security and Privacy Advisory Board and we used to 166 talk to people from the power grid and they would say oh it's okay We're not--our systems aren't connected to the Internet Well they were fully connected We are--whether you're talking about the power grid the water supply whatever--we're connected in all sorts of the disastrously unsafe ways And as I mentioned earlier the best way to get at those systems is through log-in credentials Phones are going to provide the best way to secure ourselves And so this is not just about personal safety of the data that all of you have on your phone and it's not just about the location of where your family is and it's not just about the business credentials but it's really about the as you say Congressman Lofgren it's really about the way we are going to secure ourselves in the future And what law enforcement is asking for is going to preclude those strong security solutions It also is very much a 20th century way of looking at a 21st century problem And I didn't get a chance to answer Congressman Gowdy but the FBI although it has excellent people it hasn't put in the investment So Director Comey said--we talked to everyone who will talk to us but I was at a meeting--I briefed at FCC a couple of years ago and some senior people from DOJ were there And I said well you know NSA has scale X and scale Y and DOJ said they won't share it with the FBI except in exceptional circumstances they keep it for themselves We're in this situation where I think law enforcement needs to really develop those skills up by themselves And you ask about what it is this Committee can do it's thinking about the right way for law enforcement to develop those capabilities the right level of funding The funding is well below what it should be but they also don't have the skills Mr GUTIERREZ Thank you So I'm happy I yielded the time to you I always know it's one of the smartest things I do is work with Congressman Lofgren in this Committee But I just want to share with you look I understand the competing interests here But I think Mr Sewell you should understand that I love your products You know I used to think you know house then a car now I think technology Between what they charge me for the Internet all the stuff I buy just to get information every day it's--but don't worry I can afford it I'm not going into the poorhouse because of it So I'm excited about all of the new things that I get to and how it improves my life And so I'm thankful to men and women in technology for doing that But a lot of times in this place there's adversarial positions taken and I would hope simply that we would look for a way in which we put the safety interests of the American people I understand that you think that if we find a back door that that causes all kinds of insecurity But in this Committee I'm going to work with Congressman Lofgren but I'm also going to work with Trey Gowdy We're going to work--a lot of times bipartisanship in this place is many times promoted but very rarely rewarded in 167 this place because everybody says oh you should take one position or another I'm going to take a position for the American people While you might dispute I kind of look at apple as an American company I look at Toyota as a Japanese company BMW as a German I look at you as an American company and so that's the way I see you You can dispute that you may look at yourself as an international entity but I always looked at you as the pride When I take this phone as a member of the Intelligence Committee and I take this phone to China the Intelligence Community of the United States of America the first thing before I get off that plane they take it away from me So there are bad actors out there already intervening with your products or I don't think the fine people of the Intelligence Community would take away one of the things that I need the most in my life So having said that I hope we might find a way so that we could balance the security needs and the safety needs of the people of the United States and their rights to privacy I think it's essential and important And I want to thank you guys for coming and talking to us and let's try to figure it out all together Thanks Mr SEWELL Thank you Congressman And I absolutely--I agree with what you said And I think that--I am proud to work for Apple And I think Apple embodies so many of the most valuable characteristics that make up America make America a great place We stand for innovation we stand for entrepreneurship we stand for empathy we stand for all boats rise And so I am very proud And we are an American company and we're very very proud of that The point about security outside the United States is exactly the point that drives us We are on the path to try to create the very best most secure and most private phones that we can That's a path that will probably never end because the people that we're competing with the bad guys not just in the United States but all over the world are on an equally aggressive path to defeat everything that we've put into the phone So we will continue from generation to generation to improve the technology to provide our users with a safer experience Mr GUTIERREZ Thank you Mr Sewell Thank you Mr Chairman Mr GOODLATTE The gentleman from Louisiana Mr Richmond is recognized for 5 minutes Mr RICHMOND And I'm happy to follow Luis because I guess we're going to start--I'll start where he left off And I think about a 9-year-old girl who asked you know why can't they open the phone so we can see who killed my mother because I was there and heard it happen So let me start with this If the FBI developed the ability to brute force open a phone would you have a position on that Mr SEWELL Without involving Apple without having Apple---- Mr RICHMOND Yes Mr SEWELL - complicit in that I don't think we have a position to object or not object to that I think if the FBI has a method to brute force a phone we have no ability to stop them Mr RICHMOND But are you okay with it 168 Mr SEWELL Well I think that privacy and security are vitally important national interests I think that if you weaken the encryption on the phone then you compromise those vitally important interests Mr RICHMOND Well I'm not asking you about the encryption If they could brute force open a phone do you have a problem with that I think that's just an easy question Mr SEWELL Then I'm sorry Perhaps I'm misunderstanding If the FBI had the ability to brute force a phone I would suggest that that's a security vulnerability in the phone So I would have a problem with it yes Mr RICHMOND Let me ask you another question because I see you're a lawyer I'm a lawyer and I would feel awful if I didn't ask this Brittney Mills---- Ms LANDAU I--can I just say something for a second Mr RICHMOND In a second Let me get through this question Brittney Mills had a 5S phone operating on an 8 2 iOS Does Apple any employee subcontractor subsidiary or anyone that you know of possess the knowledge or the ability to open that phone Or unlock that phone Mr SEWELL We don't And I'm glad that you asked about the Mills case because I think it's instructive about the way that we do work together cooperatively I know that we met with members of your staff---- Mr RICHMOND Look and I'm not suggesting that you all don't but I just want to--I want to know does anybody have the ability to unlock the phone first And if you tell me no then I get a no in public on the record and I feel a lot better about what I'm doing Mr SEWELL Congressman let me be clear We have not said that we cannot create the tool that the FBI has asked us to create Mr RICHMOND Right And I'm not asking about creating anything I'm saying does it exist now Do you know anybody--or does anyone have the ability to do it right now Mr SEWELL Short of creating something new no Mr RICHMOND Now--and I--oh I'm sorry Ms Landau I promised to let you answer Ms LANDAU I just wanted to add that in security we have an arms race People build good products somebody finds a vulnerability It could be the FBI it could be--now the FBI may not tell anybody about the vulnerability but we have this arms race where as soon as somebody finds a problem the next role of technology comes out and that's the way we do things Mr RICHMOND So what would be your feeling if the FBI developed a technology that they can plug something into the iPhone---- Ms LANDAU I think that the FBI should be developing the skills and capabilities to do those kinds of investigations I think it's absolutely crucial And I think that they have some expertise but it's not at the level that they ought to have And I think we're having this conversation exactly because they are--they are really using techniques from--they're using a mind-set from long ago from 20 years ago rather than the present Mr RICHMOND So they're antiquated Mr GOODLATTE Would the gentleman yield 169 Mr RICHMOND Sure Mr GOODLATTE I just want to clarify Both Mr Sewell and Ms Landau did not say subject to an authorized court-ordered warrant Ms LANDAU Well I certainly---- Mr GOODLATTE And you're not suggesting they develop this technology and then do what they think is best They've got to do it subject to a warrant Ms LANDAU Of course Thank you Mr RICHMOND And I'm glad you cleared that up because I want to make sure that everybody understands what I'm saying I don't think any of this should happen without a court order Now you know maybe I watch too many movies and maybe I listen to Trey Gowdy too much Some people would suggest if I listen to him at all that's too much But in the instance that there's a terrorist that has put the location of a nuclear bomb on the phone and he dies how long would it take Apple to develop the technology to tell us where that nuclear bomb was or would Apple not be able to develop that technology to tell us in a short period of time Mr SEWELL The first thing we would do is to try to look at all of the data that surrounds that phone There is an enormous change in the landscape over the last 25 years with respect to what law enforcement has access to So when we have an emergency situation like that whether it be a lost child or the airplane--when the Malaysia airline went down within 1 hour of that plane being declared missing we had Apple operators cooperating with telephone providers all over the world with the airlines and with local law--well the FBI to try to find a ping to try to find some way that we could locate where that plane was So the very first thing that we would do in the situation is to bring to bear all of the emergency procedures that we have available at Apple to try to find them Mr RICHMOND Thank you Mr Chairman can I just clarify because I don't want anyone to leave out of here thinking that Apple has not been cooperative with our district attorney in the effort to access the data and in fact they came up with new suggestions but my questions are just about the government's ability to just brute open a phone at any point with a court order So I don't want to suggest that Apple has not been working diligently with my DA who's also been working diligently So thank you Mr Chairman I yield back Mr SEWELL I appreciate that Mr Congressman Mr GOODLATTE The Chair thanks the gentleman and recognizes the gentlewoman from Washington State Ms DelBene Ms DELBENE Thank you for being here and enduring this for a while It's very very important In the earlier part of the hearing Director Comey said that it is not a company's job to worry about public safety and I think that that is--would be very concerning for a company to send that message given that we have technologies that impact people's everyday lives in so many ways And I assume you agree with that Mr Sewell Mr SEWELL I absolutely do I do not subscribe to the position articulated by Director Comey 170 Ms LANDAU I've worked for two Silicon Valley companies Sun Microsystems and Google and that's certainly not what I saw at either one of them Ms DELBENE In the Brooklyn case decided yesterday Judge Orenstein stated in his opinion that the world of the Internet of things all of the connected devices and sensors that we see coming forward the government's arguments would lead quickly to a world of virtually limitless surveillance and intrusions on personal privacy So I'd like to explore the issue of encryption and securing the Internet of things a little bit We often talk about security by design when it comes to the Internet of things And I'm sure we can all imagine the horror stories of insecure Internet of things types of devices like appliances being hacked that could cause a fire or spying through baby monitors hacking into a car or tampering with a home security system So I'm wondering--Dr Landau I'm wondering if you could comment on what this means in the encryption context and whether directives we've heard from the FTC for example to adopt security by design in the interests of protecting consumers from malicious actors is inherently incompatible with what you might call insecurity by design should that be mandated by the courts Ms LANDAU Well here you're in a situation where the companies often want to collect the data So for example if you're using smart meters the company wants the data the electric company wants the data to be able to tell your dishwasher no don't turn on at 4 in the afternoon when air conditioning requirements are high in Silicon Valley right now turn it on at 8 at night or 2 a m And so in fact it actually wants the individualized data And if it has the individualized data then it can certainly share it with law enforcement under court order The security by design is often in the Internet of things securing data on the device and securing the transmission of the data elsewhere The issue in the Apple phone is that the data stays on the device and that's the conflict that we're having For the Internet of things it's most useful if the data goes off the device to somewhere else where it can be used in a certain way Ms DELBENE And Mr Sewell could companies open themselves up to liability if vulnerabilities through law enforcement end up being exploited by a bad actor Mr SEWELL I think that's absolutely true Somewhat ironically I suppose we have the FTC at this point actively policing the way in which technology companies deal with these issues and we can be liable under the--Section 5 or under the authority of the FTC if we fail to close a known vulnerability Ms DELBENE And Ms Landau you talked about the issue of security versus security and that this really is a debate about security versus security Could you explain a little bit more why And are national security and cybersecurity incompatible in your opinion Ms LANDAU So what we really have here over the last 20 years as I mentioned earlier is you see the NSA and Snowden revelations aside we don't have time for me to describe all of the subtle 171 points there but you really see the NSA working to secure private sector telecommunications infrastructure many many examples We have moved to a world of electronic devices you talk about the Internet of things that leak all sorts of data And in order to protect ourselves whether ourselves our health data our bank data the locations of our children and so on we need encryption and so on But if you think more broadly about the risks that our nation faces and the risks of people coming in and attacking the power grid people coming in and stealing data from whatever company and stealing patented information and so on you see a massive national security risk And you've been hearing it from General Keith Alexander we've been hearing it from Hayden we've been hearing it from Mike McConnell we've been hearing it from Chertoff all the people who have been involved on the DHS and NSA side The only thing that can secure that is security everywhere and the move that Apple makes to secure the phones is one of the many steps we need in that direction Ms DELBENE Thank you My time's expired I yield back Mr Chair Mr MARINO presiding Thank you I now am going to recognize myself for some questions So welcome to everyone We'd like to start with Mr Sewell I'm sorry Mr Sewell pronouncing that name correctly Mr SEWELL You are Mr MARINO All right I have some questions for you concerning China In 2014 you moved your--what's referred to as your Chinese cloud to China Is that correct Mr SEWELL That is correct Mr MARINO Okay And can you tell me whose data is stored in that Chinese cloud Is it just people in China Is my data stored in that cloud as well Mr SEWELL Your data is not stored in that cloud Mr MARINO Is it strictly limited to Chinese people Mr SEWELL There are a number of things that are in the cloud so I should probably be clear about what's there Mr MARINO Okay Mr SEWELL With respect to personal data no personal data is there unless the individual's data--the individual himself has registered as having a Chinese address and having a Chinese access point In addition we have other data which has to do with film content movies books iTunes music The reason we do that is because of something called latency If you're streaming across the Internet and you have to bring the data from the United States to China there's a lag time there's a latency piece whereas if we move that data closer to China either Hong Kong or mainland China then we can provide a much better service to our customers Mr MARINO Okay Can you tell me what was the cost in a ballpark figure in the time to make the move to--for the United States to move Chinese information over to China in their cloud Mr SEWELL Sorry Did you say in time Mr MARINO Yeah Cost and time Mr SEWELL So the time--the cost is building the facilities I don't have a number for that It's certainly not something that I 172 am aware of although of course the company has that information In terms of the time once--once the server exists once there is a receptacle for the data in theory it's instantaneous Mr MARINO Okay You may or may not know but I was a prosecutor for a while both at the State and Federal level And we prosecutors are focused on a case and the crime concerned and we want going to get our hands on anything we can to see that justice is served but on the other side of this too we're talking about privacy issues And I'm very concerned about to what extent if for some reason you were to change your mind about working with the FBI or the court ordered that what does that mean to our privacy Mr SEWELL I think it means that we have put our privacy at risk The tool that we're being asked to prepare is something which could be used to defeat both the safety and the privacy aspects of---- Mr MARINO Let me get this clear because there are many rumors flying around And you've probably answered this a couple times and I apologize I've had to run and do something else Are you saying that there is no method that exists now that you could unlock that phone and let the FBI know what is in there Mr SEWELL Short of creating the tool that they have asked us---- Mr Marino Right Mr SEWELL continuing We are not aware of such a method no Mr MARINO Now you talk about the cost is an unreasonable burden and the time involved That's why I asked you what did it cost to move the cloud what was the time And you're the expert I'm not Mr SEWELL Congressman to be fair we haven't claimed that the time that it would take to create the tool is the undue burden Our claim is that the undue burden is to compromise the safety and security of all of our customers Mr MARINO So it's your position that if you do what the FBI wants to one phone could you elaborate on that in the 33 seconds I have left as to why that would be an undue burden keeping in mind that I'm very critical about our privacy Mr SEWELL Congressman the answer is very simple We don't believe this is a one-phone issue We don't believe that it can be contained to one phone or that it would be contained to one phone Mr MARINO Okay I see that my time has just about run out so I'm going to yield back And who's next Mr Jeffries Congressman Jeffries is next Mr JEFFRIES I thank my good friend from Pennsylvania for yielding I want to thank all of the witnesses for your presence here today It's been a very informative discussion In particular I want to thank DA Vance for your presence and certainly for the many progressive and innovative programs that you have in Manhattan proving that you can be both tough and fair as a prosecutor and that has not gone unnoticed Let me start with Mr Sewell There's an extensive record of cooperation that Apple has with law enforcement in the San Bernardino case Isn't that fair to say 173 Mr SEWELL That's correct For over 75 days we've been working with the FBI to try to get to more information to try to help solve this crime Mr JEFFRIES I think it's useful to put some of this on the record On December 5 the Apple emergency 24 7 call center received a call concerning the San Bernardino shooting Is that right Mr SEWELL That's right In fact the call came in to us at 2 47 a m On a Saturday morning We have a hotline that exists we have people who are manning that hotline Mr JEFFRIES And you responded with two document productions that day correct Mr SEWELL By 2 48 that morning we were working on the case and we responded by giving the FBI all of the information that we could immediately pull from our sources and then we continued to respond to subpoenas and to work directly with the FBI on a daily basis Mr JEFFRIES Right In fact the next day I think Apple received a search warrant for information relating to at least three email accounts Is that right Mr SEWELL That's correct Mr JEFFRIES You complied with that request Mr SEWELL We did comply with that and subsequent requests Mr JEFFRIES And so I think also on January 22 you received another search warrant for iCloud information related to the iPhone that was in possession of the male terrorist Is that right Mr SEWELL That's right And it's important that in the intervening stage we had actually sent engineers to work directly with FBI technicians in Washington D C and in Cupertino and we provided a set of alternatives or options that we thought should be tried by the FBI to see if there might be some possibility that we could get into this phone without having to do the tool that we're now being asked to create Mr JEFFRIES So the issue here is not really about cooperation as I understand it Apple has clearly cooperated in an extensive fashion as it relates to all of the information that you possess The question I think that we all on the Judiciary Committee and beyond have to consider is the notion of you being asked as a private company to create anti-encryption technology that currently does not exist and could jeopardize the privacy and security of presumably hundreds of millions of iPhone users throughout the country and the world Is that right Mr SEWELL We're being asked to create a method to hack our own phones Mr JEFFRIES Now Mr Vance are you familiar with the Arizona v Hicks Supreme Court case from the late 1980's Mr VANCE If you give me the facts I'm sure I have read it Mr JEFFRIES Okay The Supreme Court held that police conducted an unconstitutional search of evidence that was not in plain view It was a decision that was written by Justice Antonin Scalia And the most important point that I want you to reflect upon is he stated in authoring the majority opinion that ''There is nothing new about the realization that the Constitution sometimes insulates the criminality of the few in order to protect the privacy of us all '' 174 Do you agree that embedded in the fabric of our Constitution the Fourth Amendment and beyond is the notion that we value the privacy rights of Americans so deeply that at times it is something that will trump law enforcement convenience Mr VANCE Congressman I do sincerely believe that What concerns me about the picture we are seeing from the State perspective is that Apple has decided that it's going to strike that balance now with no access by law enforcement for full disk-encrypted devices even with a warrant So they have created their own balance They now have decided what the rules are and that changes radically the balance that existed previously and it was done unilaterally So this Committee---- Mr JEFFRIES Well I think--if I can---- Mr VANCE Yeah Mr JEFFRIES continuing Just interject I mean I think that that is a balance that ultimately the Congress is going to have to work out and also the Article III court systems certainly beyond an individual magistrate who is not even appointed for lifetime tenure is going to have to work itself through the court system a district court judge maybe the Ninth Circuit ultimately the Supreme Court and so the company exercising its right in an adversarial system to have all facts being aired on both sides of the debate is very consistent in my view with American democracy and jurisprudence There is just one last question that I wanted to ask as my time is expiring because you raised an interesting point earlier in your testimony about an individual who is a suspected criminal who claimed that the encryption technology was a gift from God But I also noted I think in your testimony that this individual communicated that in an intercepted phone conversation that presumably your office or others were wiretapping Is that right Mr VANCE No it's not right All phone calls from prison out of Rikers---- Mr JEFFRIES Right Mr VANCE continuing Are recorded Mr JEFFRIES Right Mr VANCE There's a sign when you pick up the phone if you are in Rikers Island that this is happening So there's a tape and ultimately that tape was subpoenaed and it's from that tape that that conversation was transcribed Mr JEFFRIES And if I could just in conclusion I appreciate the Chair's indulgence I think that illustrates the point presumably that it's fair to say that in most instances bad actors will make a mistake and at the same time that he is heralding the availability of encryption technology to shield his activity from law enforcement surveillance and engagement he is ignoring a plain-view sign that these conversations are being recorded and subjecting himself to unfettered government surveillance And I think that I have faith in your ability in the FBI's ability ultimately to outsmart the criminals and the bad actors without jeopardizing the privacy and the security of the American people Mr VANCE And in that case our challenge is because of our inability to access the phone our inability to investigate further any evidence of sex trafficking is not made available to us 175 So yes he did something that was not smart but the greater harm is the inability in my opinion of being able to get to the true facts which in fact are extremely important as a matter of public safety to get access to Mr JEFFRIES My time is expired I thank you Mr MARINO I thank the gentleman from New York And the Chair recognizes now the gentleman from Rhode Island Congressman Cicilline Mr CICILLINE Thank you Mr Chairman And thank you to our witnesses for your testimony and for this very important discussion I think we all recognize there are few absolutes in the law and so balancing occurs all the time There are risks in developing this software that have been articulated very well during this hearing and indeed there are risks associated with an inability to access critical information So I think we are living in a world there are risks in both ways forward and I guess my first question is Many people who agree that Apple or any other company should not be required and there's no authorization to require them to produce a product that doesn't exist or to develop an intellectual property that doesn't exist many people who think that that's correct wonder whether Apple has considered in limited circumstances and maybe a standard you would set internally if it in fact is a situation that would prevent immediate death or serious bodily injury coupled with a consent of the person or lack of objection--in this case the person is deceased--where there is no privacy claim asserted in some very narrow category whether there is a set of protocols you might voluntarily adopt to provide that information or that software with then instruction that it be immediately destroyed it be done in a SCIF in a secure safe I mean is that practical something like that Should that be part of this discussion that we keep hoping that the industry and the Justice Department will have in trying to develop something or is that fraught with so many problems that it's---- Mr SEWELL Thank you for the question Congressman We have and spend a lot of time thinking about how we can assist our customers in the event that they have a problem if they have lost a phone if they have--they're in a situation where they're trying to recover data We have a number of mechanisms to do that and we will continue to improve those mechanisms as we move forward It's very important to us that we try to think about the consequences of the devices that we create In this particular case the passcode unlock is not something that we think lends itself to a small usage The problem with this particular issue is that once you take that step once you create the mechanism to unlock the phone then you have created a back door and we cannot think of a way to create a back door that can only be used beneficially and not be used by bad people Mr CICILLINE So you have in fact sort of already contemplated other ways in which you could make this information available in this case that would not have those sorts of broader implications Mr SEWELL And we have provided information in this case We have provided logs We have provided iCloud backup We've provided all the things that we have that are available at our disposal 176 Mr CICILLINE Thank you Ms Landau you say in your written testimony the--in your written testimony the point is that solutions to accessing the data already exist with the forensic analysis community We did ask Director Comey and we probably limited our question too narrowly because we asked about the intelligence communities of the United States It sounds like you're suggesting that there may be capabilities outside the United States Government that the Justice Department or the FBI could contract with that are capable of doing what it is they're asking a court to order Apple to do Ms LANDAU That's right So I noticed that when Director Comey answered the question he said We talked to everyone who will talk with us And I as I mentioned earlier I don't know if you were here at that point I had a conversation with some senior DOJ people a few years ago about using NSA tools in law enforcement cases and they said NSA is very loathe to share because of course when you share a tool it can get into a court case and then the tool is exposed And so I don't know in the ''we talked with everyone who will talk with us'' how much NSA revealed about what they know and what they can do so that's the first place I would ask Now I phrased that incorrectly That's the first place that I suspect has some tools for exactly this problem But yes there were discussions last week in Silicon Valley There have been discussions I've had with colleagues where people believe as Congressman Issa portrayed various potential solutions that there are ways to break into the phone There is of course a risk that the data might be destroyed but I have described both in my testimony--written and verbal testimony the FBI has not tried to develop this level of expertise and they should Mr CICILLINE So it seems as if you know we are contemplating whether or not Congress should take some action to either grant this authority and then figure out what is the appropriate standard and test et cetera It sounds as if you think that is problematic and that in fact the real answer is a substantial increased investment in the intelligence capability the law enforcement capability to sort of keep pace with the advances that companies like Apple are making that that's really the best protection in terms of both law enforcement and the long-term security of the United States Ms LANDAU That's right I don't think actually there needs to be more authority but there needs to be a completely different view of how it's done There probably needs to be some authority in terms of how do you handle it for State and local because State and local will not have the resources and so there has to be some sort of sharing of tools And that's a jurisdictional issue and also just a--you know what an issue between bureaucracies that will have to be worked out and that will have to be worked out through law and policy But in terms of creating new authority the FBI already has that authority but it uses it at a much lower level and I'm sure it's funded at a much lower level They need to move from the situa- 177 tion they're in to dealing with 21st century technologies in the appropriate way Mr CICILLINE Thank you I thank you Mr Chairman I yield back Mr MARINO You bet The Chair recognizes Ms Lofgren from California Ms LOFGREN Could I ask just one quick question Mr Sewell because I forgot when it was my turn And we had asked Mr Comey somebody asked Mr Comey about the changing of the password apparently the county did it at the request of the FBI What did that do Can you explain what happened Mr SEWELL Certainly One of the methods that we might enable the phone in San Bernardino to do what's called an auto backup That is the issue that the FBI is struggling with is to find data between a certain timeframe the time of the last backup and the time of the horrific incident in San Bernardino If the phone would backup that evidence that information would become available to the FBI The way that we can back these phones up in an automatic way is we connect them to a known WiFi source a source that the phone has already connected to before and recognizes If you plug the phone in and you connect it to a known WiFi source it will in certain circumstances auto backup and so the very information that the FBI is seeking would have been available and we could have pulled it down from the cloud By changing the password--this is different than passcode--but by changing the password it was no longer possible for that phone to auto backup Ms LOFGREN Thank you and thank you Mr Chairman for letting me get that information out Mr MARINO Mr Sewell I have one more question for you Does China--does the Chinese Government have access to the cloud or is there any indication that they have tried to hack the cloud in China to get information on the Chinese people Mr SEWELL Let me be clear about the question The Chinese undoubtedly have the ability to access their own cloud Mr MARINO Yes Mr SEWELL But with respect to the U S cloud we believe that--again I'm struggling because of the words The cloud is a synonym for the Internet Mr MARINO Yes Mr SEWELL So of course Chinese people have access to the Internet Are we aware of a Chinese hack through Apple No But beyond that I can't say Mr MARINO You answered my question Thank you This concludes today's hearing I want to thank the panel very much for being here Without objection all Members will have 5 legislative days to submit additional written questions for the witnesses or additional materials for the record The hearing is adjourned Whereupon at 6 p m the Committee was adjourned APPENDIX MATERIAL SUBMITTED FOR THE HEARING RECORD 179 180 Material submitted by the Honorable Bob Goodlatte a Representative in Congress from the State of Virginia and Chairman Committee on the Judiciary 181 CALEA of course covered only communications systems not devices like iPhones But the question raised by the Apple case is essentially about the duties that tech companies not covered by CALEA including den ce makers should have to facilitate law enforcement s access to their products pursuant to a valid court order it is not about whether they may offer in the first place This distinction is vital because the two issues differ fundamentally Whether American companies may offer and Americans may use is according to current technological consensus a binary yes no question either the user holds the key necessary to communications secure EZEE or there is a master key that can open those communications no Whether that master key is held by a service provider the government or some other third party is immaterial With the key in another party s hands the user simply no longer has access to a fully secure system But the Apple case presents no choice so stark There has always been a range of possible ways to configure device security Unlike other security design decisions work on a sliding scale which means the needs of law enforcement for example can generally be accommodated to some degree without fundamentally undermining the purpose of a security mechanism Determining the right approach to device security thus involves difficult tradeoffs among competing values legitimate access by law enforcement user security convenience for users costs of compliance the courts interest in achiev ngl the ends and so on We take no position here on how the precise question in the Apple case should be resolved either under the All Writs Act AWA or in future legislation We simply note that reasonable minds can differ on the Apple case and other cases involving facilitation of law enforcement access to data if only still in its form both on law and on policy while still agreeing that the the right to use should be reaffirmed in American law Second contrary to its depiction in much media coverage the Al wa is not a reactionary throwback but rather a core part of the American legal system that assures the rights of plaintiffs to obtain justice and due process And crucially the AWA vindicates the court s right and ability to exercise its jurisdiction it is not in the first instance about the government s or other plaintiffs power per so For example US citizens detained without trial at Guantanamo asked Article Ill courts to use the Act in their attempts to obtain judicial review of their petitions for writs of lichens corpus While there is nothing inherently wrong with the and indeed much to celebrate about it that does not mean the Act could not be misused here Without further direction from Congress courts applying the balancing of equities might well set too low a bar for the government to second guess specific security features This risk may present a good reason for legislation but if Congress does decide to legislate it should create a statutory alternative to the AWA rather than tinkering with what is otherwise a fundamental protection ofjudicial powers embodied in the AWA a key part of Judiciary Act of 1789 indeed if there is a problem with the AWAs application in matters of security design it is not the Act itself which requires a weighing of equities but that courts might not weigh the right equities or weight them properly Thus even if one sides entirely with Apple the Act and the caselaw interpreting the Act offer an excellent model for legislation Speci cally such statutes can avoid the problem inherent in overly prescriptive technologically speci c legislation because technological change will inevitably upset whatever balance Congress attempts to codify in statute The Electronic 3 United States v New York Telephone Co 434 118 159 173 1977 182 Communications Privacy Act 0f1986 for cxamplc has failed to protect Amcricans privacy simply because the plummeting cost of digital storage made it common to store documents in the cloud which ECPA failed to foresee and thus failed to protect We look forward to contributing to a measured consideration of these difficult questions In the balance hang both our liberties and our security both national anti personal Respectfully TechFreedom 0 International Center or Law 81 Economics 0 Niskanen Center 183 Material submitted by the Honorable Doug Collins a Representative in Congress from the State of Georgia and Member Committee on the Judiciary 184 the crown jewel of my business handing it over to consulta nts risks theft or loss and certainly means any security features will also be exposed That is why I'm urging Congress to step in and look at real solutions that can work for law enforcement the tech industry and Americans From Taylor Pea ke Wyatt Co Founder and President MotionMobs 185 305 15th Street NW Suite- Washington D C 20005 ec Telephone 202 650 5100 Fax 202 550 5113 n M a mud Economy technetorg I @TechNetUpdate March I 20 I 6 The Honorable Bob Goodlatte The Honorable John Chairman Ranking Member House Judiciary Committee House Judiciary Committee Dear Chai nnau Goodlattc and Ranking Member Conyers TechNet the bipartisan network of innovation economy and senior executives thanks you for holding today 's healing The Tightrope Balancing Americans Privacy and Security Today's hearing has been driven in no small part by the US goveniment s decision to take the unprecedented step of trying to force a leading American technology company Apple to provide access to the contents of an iPhonc Expanding the All Writs Act to date used exclusively to require administrative support to the government into a tool to require a private technology company to create new software and in effect undermine its resistingI security systems sets a disturbing precedent For obtaining access to iPhones and other American devices It would also open the door to govemments from around the world seeking the very same type of access This would be a major step in the wrong direction and given the ubiquity of availablc mobile applications would provide limited useful data to govemment investigators Dur smartphoncs and the other devices that we depend on are essential parts of our lives They hold our most personal including our health and nancial data This information needs to be protected from those who would seek to compromiso our privacy and security At Teclith we hat-c great respect for the job that the FBI and other law enforcement agencies do We fully understand that our nation faces grave threats and that we must be vigilant in protecting our homeland The challenge in this case is that creating a precedent that could force companies to eliminate securin features from their products is counterproductive for both our nation's security and economic leadership From a security perspective once a vulnerability is established it could be exploited by others who do not share the FBI's good intentions The result common transactions will become easy prey for bad actors and customers around the world could lose faith in the trustworthiness of American products and choose altematives that don 't have the same vulnerabilities However the attention this particular case has drawn can have a positive outcome if we use it to begin a national dialogue to chart a way forward on the complicated set of legal and technical issues now before this esteemed committee At chhNet we hope that today's hearing will some as a catalyst for such a dialogue Sincerely Linda Moore President E CEO Techth 186 Questions for the Record submitted to the Honorable James B Comey Director Federal Bureau of Investigation Note The Committee did not receive a response to the questions submitted to this witness at the time this hearing record was finalized and submitted for printing on August 5 2016 187 The Honorable James B Comey March 3 I 2016 Page 2 Questions for the record from Chairman Bob Goodlatte 1 When seeking a solution to the San Bernardino terrorist s phone did you consult with the NSA or any other agency to determine whether there was a way to override the auto erasc feature a TWhat other entities did you seek assistance from in trying to nd a work-around Now that you have reportedly found a solution do you believe it represents an exploit that will soon be patched by Apple a Are you sharing the solution with state and locals is Are you using the solution on other iPhones in your possession Will it work on phones other than just the iPhone 5c c How likely will it be that this solution will continue to work What entity helped the FBI develop a solution It was reported that an Israeli company assisted Why was it that a foreign company was able to nd a solution but the FBI or other American-based companies couldn't I a Are you concerned that an exploit was developed by a company from a nation which has historically been known to have a sophisticated intelligence apparatus If a company in a foreign nation developed this exploit do you believe other countries also have developed similar exploits What is the risk that an adversary nation has developed a similar exploit r Are you going to share with Apple the solution you have found that enables FBI to access stored content that was previously blocked due to the auto-erase function and passcodc key There has been quite a bit of debate about the government's reliance on the All Writs Act to compel Apple to bypass the auto-erase functions on the phone It has been characterized as an antiquated statute dating back to l 39 that was never intended to empower the courts to require a third party to develop new technology Has the FBI relied on the Act in the past to gain access to iPhones or other similar devices Is the Act limited to circumstances in which Congress has already imposed a statutory duty on a third party to provide assistance If the US government is allowed to access devices what s to stop other govemments from making similar demands of American tech companies or prevent cyber hackers and criminals from getting their hands on this technology 188 The Ionorable James B Comcy March 31 2016 Page 3 6 Some have argued that law enforcement does not need access to end-to-end technology since they can already accoss a wide variety of non-content metadata from providers and obtain content stored in the cloud Why is it necessary that law enforcement such as the FBI also gain access to devices or apps Why can't the FBI simply compel a user to turn over their passcode to unlock an iPhonc or other device Would you say that a phone that is unlocked with a ngerprint or other biometric feature could be unlocked without the assistance of the manufacturer or provider If so does that mean that only numeric passeodes are considered testimonial for purpoScs of the 5th Amendment privilege against sclf incrimination but biometric authentication is not similarly protected Do you have a sense from FBI engineers or or from your discussions with others in the intelligence community whether there are any adequate long term solutions that will both respect consumer privacy and offer law enforcement access to communications when necessary to protect public safety Do you believe that there are any privacy considerations in the San Bernardino case considering the user of the phone is now dead and the owner of the phone the former employer has consented Considering we are analyzing the larger issue are you aware whether any of' the information that was the subject of the 0PM breach was 189 Response to Questions for the Record from Bruce Sewell Senior Vice President and General Counsel Apple Inc 190 Answer Apple retains the key to iCloud content Please see the response to Question immediately below If the iCloud is safe despite the fact that Apple can access it why can't the same be true for iPhones Answer Securing data that exists on servers in Apple's facilities is a very different challenge from securing data that exists on an iPhone or iPad in the possession of our customers These devices are physically lost and stolen In addition customers use iCloud in different ways from how they use their devices so in designing our products we take those differences into account This is a question that we continually address as we strive to make our products both as secure and as usable as possible 6 Why did Apple change its operating system with the 8 version in such a way that the keys on the device are safeguarded by the passcode designated by the user Presumably it was to ensure that the phones cannot be hacked Answer Apple is always striving to provide the best security possible for customers while at the same time providing the highest level of usability We take important steps to improve the security of our devices and services with every release Since we know that customers lose devices or have them stolen it was essential to protect the data on the device to the greatest extent possible How many phones operating on the 7 or an earlier operating system were backed Answer Apple does not have data tracking that type of information How did Apple operating on the 7 or an earlier operating system Was this done remotely or in-house Answer In the past using an in-house process Apple was able to extract data that was not protected by passcode-protected This applies to iPhones running 7 and earlier operating systems Was the technology you possessed to these phones ever compromised Answer The process Apple used to extract data from locked iPhones running 7 or earlier operating systems was not to our knowledge compromised 191 7 In one ofits motions Apple argues that once the unlocking process is created it provides an avenue for criminals and foreign agents to access millions of iPhones How would this happen Answer A special operating system created to weaken the security of one iPhone is applicable to all other iPhones We continue to believe that creating and maintaining a persistent vulnerability would put all of our customers data in harm's way 8 Is it possible that there is content or other information on an iPhone such as the one at issue in the San Bernardino investigation that is only on the phone and nowhere else - it's not in the cloud it doesn't reside with a telecommunications provider it's only on the phone Answer Yes Why should that information be walled off from the rule of law Why should it be more protected than the papers or effects in someone's home Answer We do not believe the information resides outside the rule of law We believe US laws can and should be interpreted and applied in recognition of the fact that ifan system is undermined then it is undermined for everyone who uses that system Doesn't the type of employed on the 8 and later operating systems render a search warrant useless to search the phone Answer Apple shares law enforcement's goal of creating a safer world and therefore continues to provide law enforcement all the data we have Apple does not have the technical ability to extract data from a locked iPhone running 8 or later 9 in its motion Apple repeatedly argues that Congress - and not the courts - should resolve this issue 15 it Apple's position that were Congress to enact a new law requiring unlocking or assistance that Apple would comply with it Answer Apple does and will comply with the law 10 If Congress enacts specific legislation to require device manufacturers and app designers to or unlock their technologies isn't this incentive for foreign manufacturers to market products with stronger than U S products And couldn't this drive U S consumers to those foreign products thus creating an even greater barrier for U S law enforcement Answer Yes 192 11 Historically how many All Writs Act orders has Apple complied with for an Apple device Answer Apple has complied with hundreds ofAll Writs Act orders to extract data 11 a Why is Apple now challenging an All Writs order in this case Answer Please see the response to Question 11 b immediately below 11 b Why is Apple also challenging an All Writs order in the Eastern District of New York for a phone that is using the 7 operating system Had Apple previously complied with All Writs orders for phones using the 7 or earlier operating system If so what has changed that has caused Apple to reject this law as a legitimate means to for the government to obtain assistance with a search warrant Answer Yes Apple had previously complied with All Writs orders for phones using 7 or earlier operating systems in the case you reference it was the Magistrate Iudge not Apple who questioned whether the All Writs Act provides the government with sufficient legal authority to access data stored on a device The judge sought briefing and subsequently ruled that the All Writs Act does not provide such authority 12 The iPhone at issue in the San Bernardino case did not belong to Mr Farook correct Answer Yes it belonged to his employer the San Bernardino County Government 12 a In fact it belonged to his employer - the San Bernardino County government - and therefore Farook had no reasonable expectation of privacy in the phone The county has consented to unlocking the phone Why at least in this instance is that not sufficient for Apple Answer As discussed Apple does not have the technical capability to unlock the phone The government asked Apple to create a brand new operating system that would weaken the security design and protections of all iPhones so that the government could then unlock this particular phone Apple does not believe that the All Writs Act on which the government based its order grants the government such authority N0 court has ever authorized what the government sought 193 12 b Doesn't this raise larger questions about the use ofiPhones for business purposes if the employee holds the key to unlocking the device and not the employer Even outside the context of a governmental request can an employer come to Apple to have them override the auto-erase functions Answer Employers cannot come to Apple to override device protections such as auto erase Employers may elect to use or even require use of Mobile Device Management software which allows them to remove a device passcode Opting a phone into MDM requires the user ofthe device to unlock the device and enter the passcode a second time before installation of the software occurs If MDM is not installed it does not after the fact give the employer Apple or anyone else the ability to inspect or access data previously stored locally on the device 13 What ifany accommodation is made for employers who own phones that have been distributed to their employees for business-only purposes Answer As we stated above employers may use MDM software in connection with which would allow them to reset a device's password Employers may also register their ownership ofa phone to allow them to request Apple disable on its servers the Activation Lock theft protection for an employer-owned device 14 Is there any instance ofnational security terrorist attack or major gang-related violence affecting our communities where you would offer your assistance in unlocking a single iPhone In other words if you were presented with a ticking time-bomb scenario would you offer to produce the necessary software work- around giving law enforcement access Answer Under any scenario even a ticking time-bomb Apple does not currently have the capability to extract data from a device that is protected by that is keyed to a user passcode We work hard every day to assist law enforcement because we share their goal of creating a safer world Apple has a team of dedicated professionals that are on ca1124 hours a day 365 days a year Not a day goes by where someone on this team is not working with law enforcement We know from our interactions with law enforcement officials that the information we provide is extremely useful in helping to prevent and solve crimes 15 Is Apple acquiescing to requests for access from the governments of other countries as a condition of doing business there China Russia How does Apple comply with requests from foreign governments for access to content Answer Apple has not built a back door for any of our products Apple has never shown any government any Apple source code beyond that which is 194 available on our website or through open source We comply with lawful requests from governments around the world where we do business whenever we are able to provide responsive information as we do in the United States As our content is stored in the United States we require MLAT or Letters Rogatory to provide content in response to requests from third countries 15 a It was recently reported that Blackberry had considered pulling out of Pakistan because the country requires back doors If Apple is doing business in a country like Pakistan that requires communications to have backdoor access can we not presume that you are acquiescing to those countries' demands Answer Apple has not built a back door for any of our products Apple has never shown any government any Apple source code beyond that which is available on our website or through open source 16 Are there any privacy considerations in this case considering the user of the phone is now dead and the owner of the phone the former employer has consented Answer Apple opposition to the order in the San Bernardino case was in response to the government's attempt to vastly expand the scope of its authority under the All Writs Act The privacy considerations are clear for all users had the government prevailed in forcing Apple to weaken security for all iPhones the private information that millions of users store on their devices would be at greater risk of theft from criminals hackers and others Those subject to law enforcement inquiries represent far less than one-tenth of one percent of our hundreds of millions of users But all of our users would be made more vulnerable if we were forced to build software to degrade security for any reason 17 Does the auto-erase functions exist on iPhones operating on 108 7 operating systems or earlier Answer The auto-erase function exists on 108 7 and earlier operating systems 18 What percentage of Apple phones are being backed by China Other foreign governments Answer Apple does not have data tracking that type ofinformation 19 Following up on Iudge Orenstein's holding in the Eastern District ofNew York what evidence do you have that Congress had specifically excluded under CALEA the 195 products that are currently manufactured by your company such as iPhones and iPads Answer CALEA's requirements apply to telecommunications carriers which are entities engaged in the transmission or switching of wire or electronic communications as a common carrier for hire 4-7 U S C Apple s role as manufacturer ofthe iPhone and as software developer oinS does not fall within this definition In addition in at least some contexts Apple is a provider of information services expressly excluded from the definition oftelecommunications carrier Id Under CALEA information services means the offering of a capability for generating acquiring storing transforming processing retrieving utilizing or making available information via telecommunications and includes a service that permits a customer to retrieve stored information from or file information for storage in information storage facilities - electronic publishing and electronic messaging services Id 1001 6 Apple is substantially engaged in developing and offering products that provide such capabilities For example Apple's iTunes service allows customers to purchase store and access music movies television shows games and apps via an Internet connected Apple device such as an iPhone or iPad iTunes thus constitutes an information service under CALEA by providing a capability for acquiring storing and retrieving information via telecommunications Id Similarly iMessage allows Apple customers connected over the Internet to communicate by messages sent and received via their iPhone iPad Mac and iPod touch devices and iCloud enables Apple s customers to store photos calendars contacts and other information in the cloud so that they can be accessed by any ofthe customers' devices Congress intended CALEA to cover telecommunications carriers but exempt information service providers because the functions they provide are information services In the Matter of Commc'ns Assistance for Law Enforcement Broadband Access and Servs 19 F C C Rcd 15676 15706 2004 Here Apple provides substantial information services and even where it is not providing information services as when it manufactures devices and installs operating systems it is still not a telecommunications carrier 196 Questions for the record from Representative Randy Forbes 1 Has Apple made any changes or modifications to its products that would make it easier for the Chinese government to get access to user communications Answer No Apple has not built a back door for any of our products Apple has never shown any government any Apple source code beyond that which is available on our website or through open source 2 Did Apple's decision to move iCloud data for Chinese-registered users to China result in making more data available to the Chinese government Answer No Users iCloud data stored in China is and the keys remain in the U S where they are subject to ECPA The data Apple moved to China was moved to improve customer usability by reducing network latency 3 Will the tool that the FBI has asked you to build in San Bernardino work for other iPhone What about for newer phones Answer Had we built the new operating system as requested we believe it would have worked for any iPhone 5c and with some modification for all devices 4 If Apple discovered that the government had a good way to successfully brute- force attack the phone would Apple try to shut down whatever that method was Answer Whenever we learn ofa vulnerability in our products that makes the private information of our users less secure we fix it To do anything else would be irresponsible If we deliberately left that vulnerability unaddressed we would be helping cyber-attackers in their constant and ever more sophisticated efforts to steal information 197 Questions for the record from Representative Blake Farenthold and Representative Suzan DelBene 1 Has Apple made any changes or modifications to its products that would make it easier for the Chinese government to get access to user communications Answer No Apple has not built a back door for any of our products Apple has never shown any government any Apple source code beyond that which is available on our website or through open source 2 Did Apple's decision to move iCloud data for Chinese-registered users to China result in making more data available to the Chinese government Answer No Users' iCloud data stored in China is and the keys remain in the U S where they are subject to ECPA The data Apple moved to China was moved to improve customer usability by reducing network latency 3 Will the tool that the FBI has asked you to build in San Bernardino work for other iPhone What about for newer phones Answer Had we built the new operating system as requested we believe it would have worked for any iPhone 5c and with some modification for all 108 devices 4- ls data stored in iCloud and was it also before the launch of i038 Answer Yes with the exception of email data stored in iCloud is and those protections predate 8 5 If Apple discovered that the government had a good way to successfully brute- force attack the phone would Apple try to shut down whatever that method was Answer Whenever we learn of a vulnerability in our products that makes the private information of our users less secure we fix it Ifwe deliberately left that vulnerability unaddressed we would be helping cyber-attackers in their constant and ever more sophisticated efforts to steal information 6 Can you explain in more detail the arguments you are making in the San Bernardino matter Answer Our argument in that specific case was that the All Writs Act first enacted in 1789 and on which the government based its entire case simply does not allow the government to force Apple to create an entirely new 198 operating system to be loaded on to an iPhone for the purpose of weakening security measures No court has ever authorized What the government sought and no law supports such sweeping authority This was a novel effort to dramatically expand the scope of the All Writs Act In addition the government s assertion that the California case was only about one phone was false If the government had prevailed in the case we know that law enforcement agencies across the country and arguably the world would have sought the same outcome In addition once an operating system for one phone is created it would remain a persistent vulnerability for criminals and hackers to use to attack all other iPhones 10 199 Questions for the record from Representative Doug Collins 1 This debate has focused on Apple but it is important to remember this issue affects not only Apple but software and technology companies-large and small- across the country including back home in Georgia The President of MotionMobs an app development company in Georgia states the problem clearly While the FBI's request is undoubtedly burdensome for Apple it is also precedent setting And for a small company like MotionMobs the kind of burden posed by the 5 request could lead to bankruptcy The FBI request also poses intellectual property concerns It is critical that we take these points into account Mr Sewell I understand this is an important issue for you but I'm equally concerned about the smaller companies who don't have your resources The Justice Department claims that any software company should be able to make changes to their code to allow access to law enforcement Is that your understanding as well Answer The burden of creating and maintaining reductions in security is one of the critical aspects of this ongoing conversation Certainly had the court accepted the government s views on the scope ofthe All Writs Act then the government could force any company regardless of size to bear the burden of creating new software tools to facilitate access The inevitable outcome would be one ofless innovation and increased litigation with increased risk to law-abiding customers of any U S company's products And if they make the change can defense attorneys force them to appear to explain the changes or require outside consultants to review their code Answer In the case you describe we believe that defense attorneys would have the legal right to both examine the methods used to defeat the security in the code and to force company personnel to appear in court This courtroom engagement alone represents a significant expense of resources for any business but it would likely be particularly onerous for small entities that may not have in-house legal resources on which to rely Does that create IP protection risks Security risks Answer Yes the potential security vulnerabilities created by the government s proposed approach would pose huge risks to consumers by making their health information banking records location and other information more accessible to criminals There are also risks to intellectual property specifically Businesses rely on products implementing technical measures such as to ensure the integrity and security of the data they hold and transmit This data often includes protected intellectual ll 200 property and other sensitive information about consumers and businesses across every sector of the economy including the government itself A requirement that those security measures be disclosed to defense attorneys and any outside consultants hired by the defense or the courts represent additional vectors for a security breach Similarly the sharing of code to validate the origin of the data presents real conundrums for companies that rely on trade secrets rather than patents for IP protection By disclosing the very specific methodologies used to collect analyze and refine the data software companies could theoretically put the entire value of their product up for scrutiny by an endless stream of defense and court consultants 12 201 Response to Questions for the Record from Susan Landau Ph D Professor of Cybersecurity Policy Worcester Polytechnic Institute 202 Were the FBI to share the vulnerability information with Apple there would be a window of opportunity before the vulnerability was actually patched During that time the FBI could continue to use the vulnerability on other phones 3 Would you say that the work-around solution that FBI has founds is safe in the hands of the It appears that the FBI has not learned the details ofhow the vulnerability works so yes it is the Bureau can t reveal information it doesn't know The fact that the vulnerability exists however means that others including signals intelligence organizations of nation states and organized crime will look for it and with time undoubtedly find it This could occur through discovery or through theft or purchase 4 Why does it matter whether the FBI possesses the internal capabilities to a device or communication or the provider possesses it Wouldn t it be equally vulnerable to cyber hackers and criminals or enemy nations By requesting that Apple develop third-party access to a secured device the FBI was effectively asking to create a weakness in the security system protecting iPhone 5cs As we learned during the House ludiciary Committee testimony on March 1 had this capability been developed it would have been frequently used by law enforcement agents around the country Such routine use would substantively increase the risk that the iPhone security system would be subverted through rogue requests submitted to Apple Note that I am not suggesting that law enforcement would be submitting rogue requests My concern is that other groups including organized crime and other nations would subvert the necessarily routine process needed to service the thousands of requests that would come in annually The capabilities Apple would have to develop would have increased the risk of insider attack as well as theft ofthe code from the company Were Apple to have developed such software all iPhone 5cs would have been at risk and perhaps other iPhones as well that depends on platform-specific architecture In addition were Apple to have developed the software to a device or communication that capability would be demanded by law enforcement of other nations including those that fail to respect the rule oflaw 5 What recourse does an employer have to get information from either a phone it owns but is used by an employee or a phone owned by an employee for work purposes especially if all the employee has to do is not backup the phone Mobile Device Management systems can be implemented on work phones used by an employee and personal phones used by an employee for work related tasks Many vendors support MDM and many enterprises configure it but it is not automatic it must be deliberately configured Use of an MDM arrangement is 203 elective on the part ofthe employer but not all employers implement the system sufficiently well for it to work completely There are many types of MDMs offered by a variety of providers and they function differently Furthermore contracts between the employer and user can change and even a single provider's MDM arrangement can change in the future Thus it is impossible to give a definitive answer to this question A partial answer is supplied by the fact that MDMs typically enable the phone's owner to wipe the phone which means that a non-compliant employee an employee who is not backing up their phone risks losing all the data on their phone including personal information stored on the device This provides a strong incentive for backing up the phone according to the employer's requirements 6 You have discussed how the Apple iPhone uses hardware embedded on a physical chip One recent story on Google also suggested that it is reviewing hardware-based stored on individual chips In layman s terms can you explain the difference between hardware and software For the purpose of this question hardware means the in an isolated piece ofhardware typically a chip The process and all its data are kept within what NSA calls a boundary that prevents a compromise ofthe surrounding computer environment particularly the operating system from extracting data from the processor by any means other than those the processor provides The reason that hardware is viewed as potentially more secure than a software solution is that you can reprogram software but swapping out the hardware is more difficult And in hardware solutions part ofthe key resides in hardware meaning it cannot be retrieved by software 7 In your testimony you suggested that a locked phone can simply be brought into a Wi-Fi network and as long as the passcode and iTunes password match and the phone is charging then the contents of the phone will to the iCloud Then law enforcement can simply issue a search warrant for the what's in the cloud a Why is the cloud so much more optimal a place for law enforcement to seek communications and associated data Data on the iCloud is by Apple which holds the key While users could data before saving it in the iCloud there is no default option to do so and no way to do it for standard applications This means that Apple has the capability to access the data in form and thus so can law enforcement under court order 204 b Is it so much more secure than the phone that it can be both and accessible at the same time As a security measure the iCloud data is However as noted the iCloud keys are held by Apple This means that the data is accessible to Apple in form If so why isn t the technology used to run the cloud sufficient to protect the device There is a lot ofinformation on phones that is not and should not be shared The usual issue of concern is personal information photos private communications etc But from a security vantage point the most important information on a phone is authentication information Phones are being used to authenticate users to their online accounts of various sorts email financial etc Such authentication information should not leave the device except when authenticating the user to the account Any requirement that all data on the phones be shared with a cloud provider would eliminate the ability of phones to serve as secure authenticators c What about a remote-erase command Wouldn t that kick in as soon as the phone is connected to Wi-Fi and charging That command could be disabled on the iCloud end on a per-user basis This isn't that hard since it is already possible to do so on a per-phone option 8 If the forensics community already possesses solutions to accessing the data on an iPhone doesn t that mean that even the end-to-end can be circumvented Yes there are many ways that the end-to-end can be circumvented One way can be because the actual system providing end-to-end has a security flaw that thus enables wiretapping clear text after all A second way is if wiretapping capability is downloaded on the phone Even though the conversation itselfis end-to-end it is available at the phone in form Thus a wiretap on the phone can capture the communications content Finally if one has physical possession ofthe device it is possible to download a wiretap onto the phone It is possible to download a wiretap onto a device through security flaws in either other applications on the phone or the phone s operating system see my paper with Steven Bellovin Matt Blaze and Sandy Clark Lawful Hacking Using Existing Vulnerabilities for Wiretapping on the Internet http 1209 context n3tip The key issue is that all complex systems even ones architected to 205 be secure contain vulnerabilities As we all know hackers not Apple ultimately enabled the unlocking of Farook's phone And if that's the case then why should the government look to hackers instead of Apple to unlock the phone Hackers and Apple have very different motivations Hackers who sell vulnerabilities are interested in prolonging the use of a vulnerability while Apple's interest is in patching the security flaw as quickly as possible We want to encourage that behavior in Apple rather than encouraging the company to make poorly secured devices which would leave the phone open to criminal hackers and spies 9 If Congress enacts speci c legislation to require device manufacturers and app designers to and unlock their technologies isn't this incentive for foreign manufacturers to market products with stronger than U S products And couldn t this drive U S consumers to those foreign products thus creating an even greater barrier for U S law enforcement Yes and this is a strong argument that such legislation would harm U S manufacturers It would also decrease the ability of U S law enforcement to get the information This aspect ofthe problem is a replay of the situation in the 1990s and is part ofthe reason for the loosened export controls that came into play in 2000 Note that it will be impossible to regulate software deployment - we are not going to have US Customs check which apps are on a phone as people enter the United States We could regulate hardware by requiring that hardware enable third- party access But one there is no simple solution from a technical vantage point see some of the problems with split keys in response to question 11 And more importantly weakening hardware security through requiring an access point means that smartphones cannot be trusted as secure authenticators This would severely limit strong security solutions including those used by the USfederaigovernment 10 Even though the FBI has now been successful in bypassing the auto-erase functions of Farook s iPhone that does not mean that all of the information stored on the phone will automatically become available to them correct apps on the phone will still have to be separately accessed It depends on how the apps have been designed and whether logging into the phone also logs into the app or whether a separate login is needed for the application 11 The Director of the SA has called for the use of split keys as a potential solution Could you describe in layman s terms what is meant by split keys and whether such an option is workable in your opinion 206 There are many versions of split keys but basically they are solutions in which the key is split in a number of parts say n and some portion of them m where can be smaller than n are needed to recover the information examples are Zor 3 split keys out ofa possible 3 2 3 or 4 out ofa possible 2 3 4 or 5 out ofpossible 5 etc There are serious problems with such a solution A solution with few keyholders a half dozen governments and as many companies suffers from the trust issue why should one government trust a system in which other governments but not themselves hold the keys But if there are many keyholders hundreds of governments thousands of companies it becomes impossible to secure the keys In other words the split-key solution sounds good in theory but collapses as soon as one begins to examine the details of how it would actually work in practice 12 Is it possible for a bad actor to modify or gain access to keys Yes There are many examples of this The most recent and very serious one was a compromise of the Juniper VPN which was done by replacing a parameter that generates random key bits This vulnerability allowed attackers to monitor VPN traffic See 0n the Juniper backdoor by Matt Green 5 12 on-i uniper-backdoorhtmi for details on the attack 13 You have been critical of solutions that involved updating CALEA because doing so you argue would only serve to increase security vulnerabilities If we rely solely on the FBI's ability to create ad hoc solutions to surveillance or access problems are we not also ensuring that law enforcement is always playing catch-up with criminals and national security threats when time is of the essence As we understand all too well our society has become remarkably dependent on an insecure electronic communications infrastructure for both the control of critical infrastructure and for conducting business The latter means not just selling items on eBay but managing a globalized industrial manufacturing base just-in-time inventory remote work etc This is the context for the Apple FBI iPhone case and for the larger discussion of investigations involving secured electronic communications and devices Thus the answer to the question is both yes and no The FBI needs to develop an investigative center with agents with a deep technical understanding of modern telecommunications technologies which will include capabilities ofunderstanding not only where technology is and will be in six months but where it may be in two to five years Sometimes the FBI will be ahead of criminals and national-security threats but as the NSA well knows it cannot always be ahead Sometimes it will 207 have to play catch up One of the important advantages ofour highly interconnected electronic world is that even ifplaying catch up in texts or opening devices the FBI will have a wealth ofother electronic trails to follow as well a If the FBI can t stay ahead of technology how do you suggest state and locals have the capability to do so State and local investigators already lack the technical expertise to investigate the multiple different types of cellphones and this will only get worse with time and increasing complexity Given the myriad number of communications technologies and the rapid rate of their innovation it makes sense to fund a central source for solutions and to develop a policy that determines the criteria for sharing those solutions It will not be possible to develop solutions for all devices and all applications but making choices about which cases to pursue and what resources to devote to them has always been part oflaw enforcement's task Congress should consider what the appropriate policy mechanism is for determining when to share electronic surveillance technologies such decisions should not be made by the organization that actually does the work 14 To pose a hypothetical What if terrorists are currently planning a 9 11- like attack and storing their plans on phones If any of the those phones were to be captured either before or after an attack do you believe that the manufacturer of those phones should ever have a legal duty to provide the government access to content and metadata stored on the phones This hypothetical needs to take into account the various risks facing the US So the issue is whether it is possible to provide such a capability without simultaneously creating serious holes that others can exploit Up until now the capabilities for serious cyberattacks have been limited to nations that have motivations not to attack the US in this way But the situation is changing and increasingly other nations have developed greater capabilities for cyberattack With that change the need to prevent creating serious holes that others can exploit increases 15 Isn't preventing the United States government from lawfully accessing communications pursuant to a court order or search warrant based on probable cause fundamentally different than turning over the same information to hostile regimes or those foreign governments that do not respect the rule of law 208 Yes but this phrasing of the question doesn't adequately capture the issues faced by phone manufacturers While U S government access pursuant to a court order is different legally from requirements by hostile regimes or foreign governments that do not respect the rule oflaw to turn over the same information its practical consequences are the same It is much easier for a vendor to say no to a totalitarian government if the vendor isn t capable of complying than if they have the capability but do not want to exercise it on that government's behalf 209 Response to Questions for the Record from Cyrus R Vance Jr District Attorney New York County 210 Question 4 How many cases on average do you experience per year where or locked phones prevent your of ce tram accessing necessary investigative information that is likely to yield evidentiary value in solving a crime What is your oldest case that is now being blocked due to an inability to access content on locked iPhones Response to Question 4 We have been working on this issue since September ofEUl 4 when Apple and Google adopted default device for smartphones We released a report on Smaitplione and Public Safety in November ot last year As of that paper s release we had I Apple devices that were completely inaccessible The number ofinaccessible phones has risen to approximately 250' devices out of a total of 853 phones seized by my Of ce s Cyber Lab between October 2014 and April 2016 Note that these 250 devices are only those obtained by my Of ce's Cyber Lab in Manhattan it does not include the number of inaccessible devices seized by the New York City Police Department or by the District Attorney's Df cos of the four other boroughs in New York City These 250 devices arise from a wide variety ofcases including murder sex crimes child abuse and complex nancial crimes uestion 5 What is the effect if Congress were to make a determination that under no circumstances can the government require access or even the mere option to use its own technology to devices that are previously secured with a passcode or Response to Question 5 The impact would be felt largely at the state and local level where 95 percent of criminal prosecutions are handled evely year Because many individuals -- including criminals -- now live a large part oftheir lives on smartphones much critical evidence of' crime resides on smartphones including messages photos videos calendars and address books Without smartphone evidence certain cases will have to be dismissed because prosecutors will not be able to proceed to trial due to a lack ot suf cient evidence In some cases victims will be waiting for a measure of closure that may never come and defendants will be free to reof t'end In other cases prosecutors may be able to obtain a plea to a lesser charge than the top count charged because without the smartphone evidence prosecutors will not be able to make the case for the top charge it is not our position that default device makes it impossible to bring any charges against any defendants it does pose a substantial impediment to investigating thoroughly and completely Plainly said it affects the process of investigation exoneration and prosecrition 211 Question 6 In your discussions with other DAs around the country concerning their challenges faced by have you noticed whether there is any particular crime that seems to he hindered more by than others For instance are you noticing gangs using over those exploiting children or vice-versa Response to Question 6 Affected cases run the gamut from violent ori mes such as homicide to cybercri me and identity the This is a breakdown of crime categories concsponding to inaccessible Apple devices received by the Manhattan District Attorney s Of ce s Cyber Lab from October 20M to March 2016 Warrant Proof Devices by Crime Type Elli-21 E l-l 'uh u'i in a series of op-eds and in congressional testimony we have told a number of stories From across the country like that of Brittney Mills in Baton Rouge and Ray Owens in Evanston whose killers remain on the loose Question Apple has argued publicly that it does not have capability to assist the government with 8 However in the Eastern District of New York Apple is currently contesting an order issued under the All Writs Act to assist law enforcement with a cell phone that has 7 which Apple has the capability to do 11' Apple is no longer willing to assist law enforcement when it has the capability to do so how cooperative can they possibly be when discussing 8 NUS 9 or future operating systems 212 Response to Question 7 This is why our office supports legislative action to require their cooperation when compelled by a mud to do so Question 8 You have pointed out that Apple and Google software runs nearly percent of the world s smartphones These are American-based companies Have you encountered phones with software other than that of Apple and Google that happened to be and if so do you have any recourse to unlocking or those phones Response to Question 3 No all phones in cases eurrentiy being proseCuted by my Office are running on either the or Android operating systems Question 9 Are you participating in the FBI-run National Domestic Communications Assistance Center s the NDCAC reviewing any technological solutions to assist law enforcement in gaining access to communications Res nose to uestion 1r'esto both questions Question is it realistic for state and locals to stay in front of technological solutions developed by companies such as Apple in order to remain able to lawfully access necessary communications Response to Question ID No we simply do not have the resources There is a deeply worrisome inversely proportional relationship The volume of devices are at the highest level for state and local enforcement agencies where resources are at the lowest level Question I I Do you ever obtain technical assistance from the FBI in accessing communications on phones or computers that you have seized Are there ever any legal or resource restrictions in preventing you from receiving the necessary technical assistance front 213 the FBI particularly any that Congress might be able to solve with legislation or additional funding for the Bureau Res onse to uestion II The Manhattan District Attorney s Office has its own High Technical Assistance Unit and performs a wide variety of forensics across multiple device types for our investigations and cases We have received and continue to receive technical assistance from the Federal Bureau of Investigation We are not aware of any restrictions imposed by New York law that would prevent the from sharing data with us although there may be such restrictions imposed by federal law and the costs of such sharing may depending on the circumstances be Substantial Furthermore if the FBI were to provide technical assistance to us and we were to rely on that assistance in a proceeding FBI agents might be called upon to testify about the techniques or methods This might be costly to the FBI and law enforcement generally Question 12 In your law enforcement career how would you rank this issue of ill terms of complicating investigations Response to Question l2 Apple's introduction of a product that is beyond the reach of a search warrant into the stream of commerce and marketing that product as warrant-proof is entirely unprecedented One of the largest companies in the world intentionally and explicitly frustrating its own ability to comply with court orders is entirely unprecedented Question 13 What are some of the solutions that you are proposing and do you foresee challenges in implementing them Response to Question l3 We believe federal legislation is the only viable solution State and local law enforcement does not have the resources ofthe FBI and cannot afford to litigate these case by case and rely on expensive lawful hacking solutions My Office in consultation with technologists and law enforcement partners has proposed a solution that we believe is both technologically and politically feasible Keep the operating systems of but still answerable to locally issued search warrants - just as they were until very recently This can be achieved by a federal statute providing that any smartphone made or sold in the United States must be able to be unlocked not by the government but by the designer ofthe phone s operating system when the company is served with a valid search warrant U1 214 Our solution as set forth in our November 20 5 ReporL is that these companies make their sniartphones amenable to search warrants We want Apple to offer the same strong enoryption that it employed without any documented security problems before 8 Previous mobile operating systems allowed the company to access data on a seized device with a valid court order Apple has never explained why the prior systems lacked security or were vulnerable to hackers and thus needed to he changed Question When censidering strong without a key versus strong with a key is it really an eitheri'or proposition Response to Question l4 Neither our proposed solution nor any pending legislation we support proposes a government-held key Question 15 Director Conley has said that the FBI is engaging the private sector in discussions about how to best deal with the going dark problem Are you having similar discussions with tech companies How are those discussions going Which major service providers are constructively working with you on this issue Which ones are not Response to Question l5 Neither our Office nor any state or local law enforcement agency of which we are aware received any prior warning about Apple s policy change We read it on the companys website which stated Unlike our competitors1 Apple cannot bypass your passcode and therefore cannot access this data So it s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running On March If EDI 5i 1 along with two members of my Of cei two representatives From the United States Secret Service and two representatives from the Alabama Office of Prosecution Services participated in separate meetings with senior Apple and Google executives at their respective headquarters in California to discuss this more On March 3 l1 and April 11 2015 I sent letters to Apple and Google respectively setting forth questions that arose from our meetings with them 1 have attached a copy of both my letters Copies of the letters were also attached as exhibits to my written testimony before your Committee I had hoped that the letters would foster a dialogue but neither company has responded 215 Question l6 Are you aware of providers acquiescing to requests for access from the governments of other countries as a condition of doing business there Resgonse to Question to No Howeven Apple s Reports on Government Information Requests - which are released every six months show that it has complied with orders from foreign governments and law enforcement agencies t is our understanding that if a foreign nation s government wanted information from an American company it also would have to go through lawful processes in the U S either pursuant to a Mutual Legal Assistance Treaty or a letter rogatory If the Foreign government used the MLAT process the executive branch of the Federal government would decide whetherr in its discretion the Foreign government s request was proper If the foreign government used a letter rogatory a federal court would make that In either case the request could be refused ifthc information was sought for use in a proceeding that would violate human rights Question Don t your investigators use How do you reconcile the need for your investigators to have access to the strongest of with the need for the general public to have access to the some strong Response to Question IT We want Apple to offer the same strong that it employed without any documented security problems before 8 Previous mobile operating systems allowed the company to access data on a seized device with a valid court order Apple has never explained why the prior systems lacked seemity or were vulnerable to hackers and thus needed to be changed Question Under what circumstances can the government compel a person to provide access to their cell phone Is there a difference between whether a person uses a passcode such as a four digit number or biometrics such as a ngerprint to lock their cell phone Response to Question IS Case law holds almost universally that a defendant cannot be compelled by a grand jury Subpoena or order of the court to provide the government with her or his passcode 4 216 because such compulsion would violate the defendant s Fifth Amendment right against self-incrimination ' There are two potential exceptions to this rule m it is an open question whether instead of' being compelled to provide the government with a passcode the defendant might be compelled to unlock her or his phone using the passcode There have been no cases considering this precise question and although a court might conclude that it is no different from the situation in which a defendant is compelled to provide the government with the passcode it might also determine that the situations are somewhat different 2 Second it'the existence of evidence on the phone is a foregone conclusion then the defendant may have no Fifth Amendment privilege with respect to the contents of the phone and thus may be compelled to provide the government with the passeode 3 it would be dif cult in most circumstances however for the government to establish with the requisite degree of certainty the existence of evidence in a phone that would clear the foregone conclusion hurdle 4 in any event even if the government could lawfully compel a defendant to disclose lter or his passcode or to open her or his phone using the passcode there is a substantial The Fifth Amendment provides that person shall be compelled in any criminal case to be a witness against himself US Const amend V The amendments prohibition against self- incrimjnalion has been incorporated so that it applies to slate criminal proceedings as well as federal See lira-Hugh tr Hogan 37% US I i Erwin Ir 380 ISIS 965 The cases addressing the question whether a defendant magi- be compelled to provide her or his passcodc to the govenuttent and holding that such compulsion would violate the Fifth Amendment include in re ii-anti Jurjt'h'tthimenrr lets-inn ll F 3d 13 15 1346 Cir 20 LS IJ Kim's-finer 823 F Supp 2d 665 6'68 ED Mich 2ttltijn15'l-I Hint-ire No 5-269 Sept 23 20 t5 slip op 5114 5 urination-salts v Bean Va Cir 267' Circuit Ct ofthc City of Virginia Beach Oct 23 2014 1 Professor Orin Kerr has suggested that because it is or nut in many cases be a feregone conclusion that a person knows the to her or his own sniarlphone it would not violate the Fifth Amendment to compel a phone owner to use her or his passcodc to open the phone See Kerr Apple's Dangerous Game The ll nshingion Post September I9 thttos w wit w ashi netonoostcoitt uew stvoloklt-consoinact i tt'ofltl I MW I citing In re Bottcher WL 424713 D VI Feb 2009 This may be correct although it has not been tested in any case Rancher suggests that it the content of the smart phone is known a foregone conclusion requiring the passcodc may not implicate the Filth Amendment it does not say that a person's knowledge of her or his passcodc would satisfy the foregone conclusion requirement 3' See 2 People v Hat-rich 395 NY 2007' in re Disc-cs ice-urn 670 F 3d 335 1346 1 Cir Hill In re Bone-her 2009 WL 424718 at In re Prices-it 84 F Supde I232 D Colo Professor Kerr has also explored the argument that compelling a pinson to provide or his password ma not violate the Fifth Amendment because the provision of the password may not be incrimjimting as that tennis by the Supreme Court in cases such as Hemmer v ELK 34l U S 951 and Hitcher v 251 425 US 391 See Kerr Revised Approach to the Fifth Amendment and Obtaining Passcodes Elite lins'hnigmn Post September 25 NH it wasluigl onpost liftl Ji'E Sr'n vl't' iscd tt fth Professor Kerr's analysis new be right although it does not appear Ital an courts have adopted it and therefore there are still questions about the application ofllte Fiflh Amendment to efforts to compel persons to provide their passcodes to the government 8 217 likelihood that any defendant who faces potentially serious criminal charges would simply refuse to with the subpoena or order and go into contempt 5 In sum in almost all cases it will be legally impossible to compel a defendant to provide his or her passcode or to use the passeode to open her or his phone In those few cases in which it might be legally possible to compel the defendant to provide the information it would be impossible as a practical matter to compel a recalcitrant defendant facing serious charges to do so Question 19 When the government takes possession of an iPhone as evidence what can the government do to get into the phone for evidential-y purposes What are the limitations What about an Android phone Response to Question 19 The applicable law enforcement agency may search the device pursuant to a judicially- authorized warrant after establishing probable cause and subject to the on the device This applies to all types ofdevices Question 20 After a serious criminal incident how does law enforcement access a device or app to determine a suspect's contacts with other suspected criminals or eo-conspirators 0r determine if another crime is imminent What privacy or security interests exist in that situation Response to Question 20 As in response to Question 19 in order to examine such evidence the applicable law enforcement agency may search the device pursuant to a judicially-authori zed warrant after establishing probable cause and subject to the on the device This probable cause standard has long been recognized by our courts and legislature as the striking the correct balance between privacy and security 5 N'ee cuss In re ll'et'cs F 2d 2d Cir 1933 9 This document is from the holdings of The National Security Archive Suite 701 Gelman Library The George Washington University 2130 H Street NW Washington D C 20037 Phone 202 994-7000 Fax 202 994-7005 nsarchiv@gwu edu