The divide between technology companies and law enforcement over the issue of encryption came to the fore at a congressional hearing on the issue on Tuesday (April 19).
During the hearing called by a House Energy and Commerce subcommittee a lawyer for Apple Inc said the company has been asked by Chinese authorities within the last two years to hand over its source code but refused, in response to U.S. law enforcement criticism of its stance on technology security.
The congressional testimony highlighted an issue at the heart of a heated disagreement between Apple and the FBI over unlocking encrypted data from an iPhone linked to last December’s San Bernardino, California shootings – how much private technology companies should cooperate with governments.
Law enforcement officials have attempted to portray Apple as possibly complicit in handing over information to China’s government for business reasons while refusing to cooperate with U.S. requests for access to private data in criminal cases.
New York’s police intelligence chief, Thomas Galati, told the committee that the inability to monitor new technologies was stymieing law enforcement efforts.
“In the past a phone or a wiretap, again, legally obtained from a judge would alert the police officer to drop-off locations, hideouts and target locations. Now we are literally in the dark and criminals know it too,” he said.
“What is even more alarming is that the position is not dictated by our elected officials, or our judiciary system or our laws. Instead it is created and controlled by corporations like Apple and Google who have taken it upon themselves to decide who can access critical information in criminal investigations,” he added.
On Tuesday, Apple and the FBI were making a second appearance in Congress since March to testify over law enforcement access to encrypted devices, a decades-old dispute between Silicon Valley and Washington that gained renewed life from the San Bernardino case.
The FBI’s executive assistant director of science and technology, Amy Hess, told the committee that a major challenge was sorting through the wealth of information available.
“Yes, it is true, we do receive more information today than we received in the past, but I would drawn the analogy to the fact that the haystack has gotten bigger but we’re still looking for the same needle,” she said.
Apple has previously denied the accusation that it cooperated with China and handed over the source code that underlies its products as a “smear” originating from the U.S. Department of Justice’s effort to force Apple to help unlock the iPhone 5c used by one of the two San Bernardino killers.
But Apples’s top lawyer, Brian Sewell said the company had refused to cooperate with the Chinese government.
“We have been asked by the Chinese government, we refused,” he said.
The Justice Department had argued in the San Bernardino case that it would be willing to demand Apple turn over source code, though at the time it only sought the company’s cooperation in writing new software that would disable the passcode protections on the phone.
Technology and security experts have said that if the U.S. government was able to obtain Apple’s source code with a conventional court order, other governments would demand equal rights to do the same thing.
After winning a court order in February, the Federal Bureau of Investigation dropped its case against Apple last month when it said it had found a third party entity to help investigators hack into the iPhone used by gunman Rizwan Farook.
Appple lawyer Sewell said that had the company cooperated by providing the source code it would have compromised their entire encryption process.
“There is no way that we know of to create that vulnerability, to create that access point, and more particularly to maintain it. This was the issue San Bernardino was not just give us an access point but maintain that access point in perpetuity so we can get in over and over and over again. That, for us, we have no way of doing that without undermining and endangering the entire encryption infrastructure,” he said.
While that standoff underscored national security concerns posed by advances in technology security, the growing use of strong default encryption on mobile devices and communications by criminal suspects is handicapping investigators’ ability to pursue routine cases, law enforcement officials told the hearing. Apple and other companies defend the technology as integral to the encryption infrastructure.
