FBI director James Comey on Tuesday testified before the U.S. House Judiciary Committee on the government's ongoing encryption battle with Apple—and, faced with an unexpectedly pro-privacy panel, found himself making increasingly dramatic arguments.
Asked about the potential repercussions of forcing Apple to write backdoor software that could unlock encrypted iPhones, Comey said, "Well, Apple's engineers have this in their head. What if they're kidnapped and forced to write software?"
The FBI is requesting that Apple help the agency unlock the iPhone of suspected San Bernardino shooter Syed Farook, an order which the tech company has resisted on the grounds that it threatens the privacy of its users and sets a dangerous precedent for government authority.
"They [Apple] sell phones, they don't sell civil liberties," Comey said Tuesday. "That's our business to worry about."
However, the committee did not seem to agree. The panel heard five hours of testimony from Comey as well as Apple general counsel Bruce Sewell, but the typically FBI-friendly panel sided strongly with the tech company's stance on privacy, with Rep. Zoe Lofgren (D-Calif.) at one point telling Comey that the government's order to unlock the iPhone was "a fool's errand."
Lawmakers from both sides of the aisle repeatedly said the FBI was attempting to undermine privacy in the name of national security and that its order constituted a serious overreach of authority. Ranking member Rep. John Conyers (D-Mich.) accused Comey of trying to undermine the panel itself, at one point asking, "Can you appreciate my frustration with what appears to be little more than an end-run around this committee?"
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"I am deeply concerned by this cynical mindset," Conyers said in his opening statement. "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.... 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."
In another exchange, Rep. Steve Chabot (R-Ohio) asked Comey if the case would set precedent for other similar cases. Comey answered, "Sure, potentially!"
Rep. Ted Poe (R-Texas) followed that up by asking Comey how many phones the government may want to break into.
"I don't know," the FBI director answered. "A lot."
Sewell, who testified after Comey, told the committee that Apple was indeed committed to public safety. The government's argument that Apple was only taking a stance on privacy as a public relations move "makes my blood boil," Sewell said. "To say that it's a marketing ploy, to say that it's about PR really diminishes a very serious conversation that should be about security of the American people."
He also argued that code is protected by the First Amendment, while forcing engineers to create software they do not want to make violates the 14th amendment, which protects against forced labor. "This is a compelled speech by the government for the purposes of the government which is absolutely a First Amendment problem, and it is speech that Apple does not want to make," Sewell said. "And it is conscription; forced labor."
Apple's argument was also bolstered by a ruling on Monday by a federal New York judge who found that the All Writs Act—the same law the FBI is citing in the San Bernadino case—did not justify the government's order.