Congress Seems Pretty Angry About The FBI's Belief That The Courts Can Force Apple To Help It Get Into iPhones

Congressional hearings involving law enforcement and intelligence folks tend to be fawning affairs, with most of Congress willing to accept whatever these guys have to say. Sure, you'll always have a few people critical of certain aspects, but generally speaking, Congress is especially friendly to the FBI, NSA, CIA, etc. So it must have come as a bit of a shock to FBI Director James Comey that during a long House Judiciary Committee hearing yesterday, they seemed pretty pissed off at Comey's belief that the courts should force Apple to help him open up encrypted iPhones.

One judiciary member questioned how the FBI managed to mess up so badly during the San Bernardino investigation and reset the shooter’s password, which is what kicked this whole controversy and court case in motion in the first place. And if the case was such an emergency, why did they wait 50 days to go to court? Another member questioned what happens when China inevitably asks for the same extraordinary powers the FBI is demanding now. Others questioned whether the FBI had really used all the resources available to break into the phone without Apple’s help. For example, why hasn’t the FBI attempted to get the NSA’s help to get into the phone, since hacking is their job? [....] More than anything, though, the members of Congress expressed anger that the FBI director didn’t follow through earlier on his stated intention to engage in a debate in Congress and the public about the proper role for encryption in society. Instead, he decided to circumvent that debate altogether and quietly go to court to get a judge to do what the legislative branch has so far refused to do.

In some cases, they directly called out Comey for appearing to use the San Bernardino tragedy for political purposes:

“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. [....]

“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.

To be fair, contrary to what some articles are saying, this is not the first time Congress has been skeptical about the FBI's view on the encryption wars. A little less than a year ago, a hearing set up by a different committee, the House Oversight Committee included some similar points with Congressional reps being quite skeptical of the claims by law enforcement about the need for encryption backdoors. However, the drumbeat from Congress appears to be getting louder -- and that's a good thing. Of course, some of the annoyance from Congress appears to just be about who gets to decide what happens here. That is, some of the anger seemed to be over the DOJ's decision to rush to the judicial branch, rather than let the legislative branch figure out what it wants to do. However, there's definitely a clear (and, amazingly, bipartisan) group of folks in Congress who recognize that the FBI's arguments about how it "needs" this information is a bunch of hogwash.