Terrorist's locked iPhone adds urgency to encryption debate in Congress

WASHINGTON — Attempts by the FBI to force Apple to unlock the iPhone of a dead terrorist from December's mass shooting in San Bernardino, Calif. brought new urgency Wednesday to the debate between privacy advocates and security hawks and could spark a renewed push for action by Congress.

Sen. Ron Wyden, D-Ore., a strong privacy rights advocate, said he expects what he called "dangerous" efforts in Congress this spring to force U.S. tech companies to build backdoors into encrypted cellphones and other devices used by millions of Americans.

Latest: San Bernardino iPhone battle rages

"People have been asking me, 'Ron, what's wrong with making Apple unlock one iPhone?' " Wyden said. "But Apple is not being asked to build a key that would unlock one iPhone. They are being asked to build a key that would unlock millions of iPhones. And that's dangerous. Because when you do that, you don't just give the keys to the good guys. The bad guys get them too."

The San Bernardino attacks have given federal law enforcement officials their strongest ammunition yet against encryption that has become so strong that only users can open their smartphones and other electronic devices. The encryption debate had been a bit theoretical until now since federal officials had been unable to give members of Congress a specific example of a case in which encrypted communications — designed to protect users' privacy — hampered an actual investigation.

"Sadly, we now have that case that highlights all the issues," said Ron Hosko, former chief of the FBI’s Criminal Division. "Here we are two months after San Bernardino, with 14 people dead, and we’re still trying to close the loop."

Apple CEO Tim Cook said late Tuesday that the company would oppose a federal judge's ruling ordering the technology giant to help FBI investigators break into an iPhone belonging to terrorist Syed Rizwan Farook, who shot and killed 14 people and wounded more than 20 others in the Dec. 2 attack that he carried out with his wife. The couple was killed in a shootout with police.

FBI agents investigating the attack have been unable to unlock Farook's encrypted phone to see who he had contact with before the attack. Cook said the FBI wants Apple to make a new version of the iPhone operating system, circumventing several important security features, and install it on Farook's iPhone.

"In the wrong hands, this software — which does not exist today — would have the potential to unlock any iPhone in someone’s physical possession," Cook said in a written statement posted on the company's website.

The Justice Department expressed disappointment with Apple’s opposition to the court order.

“It is unfortunate that Apple continues to refuse to assist the department in obtaining access to the phone of one of the terrorists involved in a major terror attack on U.S. soil," the department said in a written statement Wednesday.

According to court papers, the assistance the government is seeking—chiefly to disable the phone’s auto-erase function to preserve whatever data exists--would only apply to Farook’s phone and could not be transferred for use on any other device.

"They (investigators) are not asking Apple to redesign its product or to create a new backdoor to one of their products," said White House spokesman Josh Earnest.

Robert Cattanach, a former Justice Department trial attorney whose private practice includes cyber law, said the magistrate's decision represented "only step one'' in what promises to be a long fight that is destined for review at least by the 9th Circuit Court of Appeals.

"I would not bet on the government," he said. "Win, lose or draw, this will likely play out on the floor of Congress in the end."

Congress has so far been hesitant to pass legislation that would force U.S. tech companies to build backdoors into encrypted cellphones and other devices. One of the key arguments against it, critics said, is that there are more than 600 companies and groups selling encrypted products, and two-thirds of them are located outside the U.S., beyond the reach of congressional legislation.

"I strongly support providing law enforcement the tools they need to track terrorists and to prevent terrorists plots," said Senate Homeland Security Chairman Ron Johnson, R-Wis. "However, I’m worried that using the judiciary to require Apple to build a ‘master key’ that doesn’t currently exist could open a technological Pandora’s box with unforeseen effects. This is a slippery slope and not just about this individual case."

Senate Intelligence Committee Chairman Richard Burr, R-N.C., and Vice Chairman Dianne Feinstein, D-Calif., are looking to offer a bill this year that would require companies to comply with court orders to give the government access to encrypted information.

"I understand there are privacy concerns, but in this (San Bernardino) case the phone is owned by the county—which has consented to a search—and there is a valid search warrant," Feinstein said Wednesday. "It’s not unreasonable for Apple to provide technical assistance when ordered by the court.”

Burr said "court orders are not optional and Apple should comply."

A separate proposal by House Homeland Security Chairman Michael McCaul, R-Texas, and Sen. Mark Warner, D-Va., would create a commission of tech executives, law enforcement officials and encryption experts to try to find a solution that would protect privacy and catch criminals.

Rep. Justin Amash, R-Mich., a vocal privacy rights advocate, said he supports Apple.

"Thank you, Tim Cook, for defending our rights," Amash said via Twitter. "I will do everything I can to support your efforts to protect the public."

A privacy law expert also said Apple is taking an important stand on behalf of its users’ privacy, and should be applauded.

"In our digital world, we increasingly need to rely on the services provided by intermediaries like Apple to live our lives, and their decisions on our behalf directly affect our civil liberties, including our right to privacy," said Neil Richards, professor of law at Washington University in St. Louis.

The issue was already becoming fodder for candidates on the presidential campaign trail Wednesday.

Republican presidential frontrunner Donald Trump said he agrees with the court order to force Apple to unlock the iPhone.

"We have to open it up and we have to use our heads," Trump said on Fox and Friends. "We have to use common sense."

Apple's CEO Tim Cook says firm will oppose iPhone court order

Senate Judiciary Chairman Chuck Grassley, R-Iowa, said Congress members need to work together to find constructive solutions to the challenges that encryption — or "going dark" — presents.

"Whether it’s a terrorism case handled by the FBI or a murder case handled by state or local police, it’s critical that we find a way that allows law enforcement to maintain its ability to execute lawful, court-authorized investigative techniques, such as warrants and wiretaps,” Grassley said.

In New York City, Manhattan District Attorney Cyrus Vance Jr. said Wednesday that approximately 155 criminal cases being prosecuted by his office involved a legal standoff over access to the suspects’ smartphones. Those cases range from domestic violence to murder, he said.

"This is having a measurable impact on how law enforcement does its job," Vance said.

An attorney for the American Civil Liberties Union called the government's attempt to force Apple's help "unprecedented, unwise and unlawful."

"The Constitution does not permit the government to force companies to hack into their customers’ devices," said ACLU staff attorney Alex Abdo.

Contributing: Kevin McCoy, Gregory Korte