The Apple-FBI Encryption Hearing Was Unexpectedly Hostile to the FBI Director

In an unexpectedly adversarial hearing on Tuesday, the members of the House Judiciary Committee grilled FBI Director James Comey on encryption backdoors, privacy, the All Writs Act, and even highly technical details about the iPhone 5c, for over an hour.

A couple of representatives were openly hostile to Comey, but most launched passive aggressive, loaded questions at the FBI director. Even though the representatives (both Democrats and Republicans) were mostly polite, the tone of the the questioning was a huge departure from how the House Judiciary Committee typically addresses Comey.

"I would be deeply disappointed if it turns out the government is found to be exploiting a national tragedy to pursue a change in the law," Rep. John Conyers (D-MI) told Comey.

The committee hearing—titled, "The Encryption Tightrope: Balancing Americans' Security and Privacy"—comes as Apple is battling the FBI over a court order compelling the company to circumvent its own encryption technology in order to get at the contents of an iPhone owned by one of the two now-dead perpetrators of a mass shooting in San Bernardino.

Yesterday, a magistrate judge in New York denied a similar order in an unrelated case, referencing both the San Bernardino case and other similar cases across the country. In that decision, Magistrate Judge Orenstein suggested that the government's interpretation of the All Writs Act, the statute the DOJ is using to try to compel Apple to write software that would override security measures it's designed into its phones, would undermine the separation of powers and "trample" on the US Constitution itself.

Orenstein concluded that the government shouldn't be able to get iPhone backdoors through magistrate judges—rather, the "debate … must take place among legislators."

The House Judiciary Committee apparently strongly agrees. From the start, the committee members indicated a hard disapproval of the FBI's actions in the San Bernardino case. The ranking member of the committee, Rep. Conyers noted that he has long opposed mandating backdoors, but that reasonable minds could disagree on the topic.

"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," he said. "Why has the government taken this step and forced this issue?"

He went on to speculate that the reason could be found in an email from "a senior lawyer in the intelligence community," obtained and published in part by the Washington Post in September 2015. The email said that the "the legislative environment [with respect to mandating backdoors] is very hostile today," but that "it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement."

"I'm deeply concerned by this cynical mindset," said Conyers, implying that the Department of Justice and the FBI might be exploiting the San Bernardino attacks in order to mandate backdoors.

The tone of the hearing didn't get much better for Comey from there. Rep. Goodlatte asked Comey point-blank about the All Writs Act, placing the hearing's focus squarely on Orenstein's New York case and the San Bernardino case. Comey avoided answering questions about the Orenstein opinion, saying that he hadn't yet read it (and to be fair, it is 50 pages long). He also dodged questions about the San Bernardino case, repeating a line he has used before about how the case is about that particular phone, rather than all phones. Over the course of the hearing, he would flip back and forth on whether the requested order would affect only one, or all phones.

The questions got more hostile. Rep. Conyers asked Comey if the San Bernardino case was an "end-run around this committee"—a loaded question that Comey of course denied.

Rep. Jerrold Nadler (D-NY) pressed Comey on the details of the San Bernardino investigation, getting the FBI Director to admit that the FBI had made a mistake in resetting the San Bernardino shooter's iCloud password. Nadler pointed out that the motion to compel Apple had come 50 days after the shooting. "Given the allegedly critical nature of this information, why did it take 50 days to go to court?" Comey's reply was vague, saying that over the 50 days, there had been "a lot of conversations."

Nadler then asked Comey if a mandate for backdoors would stop bad actors from using encryption technology. Comey was forced to reply with a point-blank "No."

After that, Rep. Darrell Issa (R-CA) opened his questioning by quoting the late Justice Antonin Scalia: "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." Issa's questioning was overtly hostile in tone, delving deep into the technical details of the iPhone 5c. Comey was at loss, admitting, "I have not answered the questions you have asked me today and I am not entirely sure I understand the questions."

Rep. Zoe Lofgren (D-CA) then said to Comey, "As I was hearing your opening statement talking about a world where everything is private, it may be the alternative is a world where nothing is private. Because once you have holes in encryption, the question is not if but when those holes will be exploited." She asked some loaded questions about whether China or other foreign government would be able to exploit US-mandated backdoors, and then, in a surprising move, referred to the iCloud hack in 2014, and then seemed to embrace the possibility that Apple would, in the future, encrypt iCloud accounts.

Not all of the questioning was adversarial to the FBI director, but the bulk of it was, with the committee's ranking member leading the (bipartisan) charge—a surprising direction for a committee that has been relatively deferential to Comey in the past. Perhaps it's the opinion polls, perhaps it's Apple lobbying behind the scenes, or perhaps the FBI's attempt to push the encryption debate through the courts, rather than Congress, that has really has raised the hackles of the House Judiciary Committee. Either way, something in the air is changing, and Congress is clapping back.