In the days after the attacks of Sept. 11, law enforcement and national security agencies brought Congress a lengthy list of new surveillance powers they wanted. Most ended up quickly becoming law as part of the Patriot Act. But a request to ban strong computer codes, or encryption technology, was left out completely.
It was hardly the first time -- or the last -- that Congress shot down legislation to ban or regulate encryption. And that's likely why Apple (AAPL) has been fighting to shift its court battles with the FBI and federal prosecutors to the broader legislative arena in Congress. While presidents and the executive branch often side with law enforcers, courts have been less predictable -- and more importantly, Congress has continuously and repeatedly sided with tech companies.
On Tuesday, Apple's top lawyer faces off against FBI Director James Comey before the House Judiciary Committee. The hearing is likely to get a lot more attention than a similar one last April, or the dozens and dozens in various House and Senate committees on encryption over the past two decades. But the outcome will still likely be the same -- no new restrictions.
The reason is that laws to weaken encryption so the FBI can crack criminals' hidden data also put at risk the digital data and online transactions of hundreds of millions of ordinary citizens. And many industries -- from technology equipment and telecommunications carriers to banking and retailing -- deeply rely on strong encryption. That has created a formidable array of lobbyists and campaigners to make the case that strong encryption is a source of economic strength.
And as Tuesday's hearing unfolded, the FBI director faced hostile questioning from most of the members who spoke, a rare show of unity among Democrats and Republicans on a commitee that is usually deeply split on partisan issues.
In the case of deceased San Bernardino shooter Syed Rizwan Farook, the FBI is demanding that Apple write a special, new version of its software to remove several security features from an iPhone used by Farook. That would allow the FBI to guess Farook's passcode and unlock the phone.
The FBI said it only wanted the software for that one iPhone but Apple protested that the software, once created, could be requested again and again and eventually even mimicked by hackers. It was quickly revealed that federal prosecutors were seeking to have more iPhones unlocked and Manhattan District Attorney Cyrus Vance, who is also testifying at Tuesday's hearing, said he had 175 phones he wanted unlocked if the new software is created.
Managing the spread of encryption
Still, no one has yet come up with a scheme to give access to encrypted data just to law enforcers in a way that doesn't compromise security for all, says Chris Calabrese, vice president for policy at the Center for Democracy & Technology, a nonprofit advocacy group in Washington, D.C.
"Our economy runs on encryption," says Calabrese. "Anything that attacks that is really an attack on the entire Internet economy, which is really an attack on the entire American economy."
Apple's general counsel, Bruce Sewell, plans to make a similar point in his testimony on Tuesday.
"Every day, over a trillion transactions occur safely over the Internet as a result of encrypted communications," the Apple lawyer said in his opening remarks at the hearing. "These range from online banking and credit card transactions to the exchange of healthcare records, ideas that will change the world for the better, and communications between loved ones."
The current debate echoes numerous previous disputes over the spread of encryption, starting with the Clinton administration's 1993 plan for the Clipper Chip, an encryption system that could go in every phone or computer with a special backdoor "key" that the government could use to decode all communications. The scheme was quickly attacked by a wide variety of industries and civil liberties proponents and eventually dropped.
In 1994, Congress did pass the Communications Assistance for Law Enforcement Act (CALEA), which required telephone companies to assist in legal wiretapping by decoding communications. But lawmakers rejected requests to extend the decrypting obligation to other kinds of companies and other kinds of communications, going so far as to carve out an exemption barring the government from requiring backdoors in computer equipment.
On multiple occasions over the ensuing years, law enforcement agencies tried to convince lawmakers to modify CALEA to encompass smartphones, computers and other tools of communication in the Internet age. But each time, Congress refused to budge.
That lack of action on Monday helped Apple earn its first win in court battle against the FBI. Judge James Orenstein ruled that Apple could not be compelled to extract data from the iPhone of an admitted drug dealer, in part because Congress had added the exemption to CALEA in 1994 and then repeatedly declined to change its mind.
Noting that Congress had considered multiple times whether to "confer – or withhold – the kind of authority at issue here to compel private actors to assist the government in technologically complex investigations," Orenstein concluded that "what the government seeks here is to have the court give it authority that Congress chose not to confer."
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