FBI Director Says Battle With Apple Could Set Legal Precedent

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WASHINGTON — FBI Director James Comey said Thursday that the legal battle between the agency and Apple over unlocking a San Bernardino terrorist's phone could set legal precedent.

Comey's comments came during testimony before the House Intelligence Committee. He called the current situation the "hardest question I've seen in government."

The government, through a court order, is demanding Apple build what the company considers a security-suppressing "backdoor" into the iPhone. Apple is challenging the order, but the government argues that Apple must comply.

“I do think that whatever the judge's decision is in California — and I’m sure it will be appealed no matter how it ends up — will be instructive for other courts,” he said. “And there may well be other cases that involve the same kind of phone and the same operating system.”

Whether the government's demands in San Bernardino will extend to other cases and devices — or only to one iPhone — has shaped a sharp disagreement between the Justice Department and Apple. The government insists that the case involves a very narrow search request. In contrast, Apple argues that if it's forced to help the FBI break into the phone, many similar requests will follow, putting their customers at risk.

While the FBI continues its legal battle with Apple over the San Bernardino iPhone, Comey believes that the bigger debate over the popular adoption of encryption and American law enforcement should not be settled by a judge.

“I do think the larger question is not going to be answered in the courts — and shouldn’t be — because it’s really about who we want to be as a country, and how we want to govern ourselves.”

Apple, meanwhile, agrees that Congress should ultimately rule on any national encryption policy. But the company has argued that the government should withdraw its demands in San Bernardino as policy makers find a path forward.

The FBI director acknowledged his agency was in continuous negotiations with Apple leading up to the court proceeding. And Comey was quick to say that Apple has been “very helpful” in the San Bernardino case and in broader conversations on law enforcement and national encryption policy.

“I want to be sure that people understand, there are no demons in this dispute or the larger dispute. Apple’s been very cooperative,” he said.

“We just got to a place where they were not willing to offer the relief that the government was asking for.”

Later, when asked to define the limits of the All Writs Act, the law invoked by the Justice Department to compel Apple to help the FBI, Comey mostly deferred to the expertise of government lawyers — but he did provide his own answer.

“I think these are reasonable questions because judges on both coasts, and probably lots of other places, are going to have to interpret what is the meaning of the All Writs Act and what is 'reasonable assistance,'” he said.

Comey also addressed the concern posed by Apple and its allies that the existence of an encryption backdoor — a “master key” — poses a grave security risk if the technology were to fall into the wrong hands.

“The code that the judge has directed Apple to write works only on this one phone,” he said, rejecting Apple’s claim that the code the FBI wants written would hypothetically work on other iPhones. “And so the idea of it getting into the wild and working on my phone and your phone, at least the experts tell me, is not a real thing.”