Congress Must Resolve Encryption Issue, but Some FCBA Panelists Skeptical
Congress should pass legislation to help law enforcement gain access to locked devices and encrypted data during investigations without endangering other people's privacy and security, several panelists said at an FCBA event Thursday evening. They were mixed on whether lawmakers would be able to do that. "The really hard meta question is: Are we more comfortable with the problem being resolved on a case-by-case ad hoc by magistrate judges or by Congress?" asked University of Texas School of Law professor Stephen Vladeck, who was skeptical about Capitol Hill's efficacy.
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"I think it depends on what we mean by Congress," Vladeck said. "If we mean the 535 folks currently serving on the Hill right now, I’ll take the magistrate judge six days a week and twice on Sunday. If we mean a theoretical Congress that is institutionally responsible, I think that’s a much more interesting debate.”
Panelists discussed the fight between the government and Apple in two court cases in which DOJ tried to use the 227-year-old All Writs Act to force the company to help the FBI gain access to iPhones used by suspects. In the San Bernardino, California, mass shooting terrorism case, the bureau eventually abandoned its fight after it said it found a way to get into the iOS 9 phone used by one of the shooters (see 1603290059). The government sought Apple's help writing software to disable a feature that would have wiped out the phone's contents if the wrong passcode was entered 10 times. In a New York case, U.S. District Magistrate Judge James Orenstein in New York's Eastern District rejected the government's use of the All Writs Act to force Apple to help the FBI unlock the passcode on an iOS 7 iPhone seized in in a drug case (see 1604150078).
Civil liberties, technology and privacy advocates have said forcing companies to help the government -- such as providing a back door -- could introduce vulnerabilities that could be exploited by criminals and other governments and jeopardize consumer trust. Panelists said the San Bernardino case didn't deal with privacy because the shooter died and the phone was owned by the county, which was the shooter's employer. But Vladeck said the shooter owned the passcode so the question became whether ownership of the phone or the key matters in the case. Kellogg Huber attorney Sean Lev, who represented AT&T when it filed an amicus brief supporting Apple, said Apple owns the software that provided the functionality for the passcode.
Lev said Congress has "unique abilities" to investigate and understand the technology more than an individual magistrate. "There is some wisdom of the crowds … being able to do it rather than one magistrate judge and his or her couple of clerks informed only by advocates," he said. That means Congress has "institutional advantages" and also the ability to create a regime for applying consistent standards, whereas judges can deal only with the parties before them, said Lev, a former FCC general counsel.
Congress formed two working groups to deal with encryption. The House Judiciary and Commerce committees formed a joint eight-member bipartisan group in March (see 1603210061). Last week, the committees issued a joint statement saying meetings with academia, civil society groups, consultants, cryptographers, federal, state and local government entities, legal experts, private industry and others helped the working group identify common principles in seeking a solution. Another group of House and Senate lawmakers introduced legislation to create a 16-member blue ribbon panel that would have expertise in cryptography, civil liberties, law enforcement and technology to address the problem (see 1602290074).
Asked by moderator Wiley Rein attorney Megan Brown whether judges would be capable of handling such issues as technology outpaces laws, U.S. Attorney for the District of Maryland Rod Rosenstein said judges are trusted to deal with all sorts of complex issues in which they rely on expert testimony -- and technology is no different. Judges may be older for the most part and less familiar with modern technology, but "if fully briefed, I think they're capable of understanding the technical issues sufficiently," he said. The larger question is what the standard should be and if it's the All Writs Act, in which case judges should be capable of applying it, he said, but different judges might issue inconsistent answers.
Rosenstein said he would like to see Congress resolve the matter. It might be a standard that provides total privacy and devices are immune to government process or a standard that is similar to the All Writs Act. “I think if they can write it at a high enough level, then it won’t have to be rewritten every couple of years," he said.