Comey: FBI not setting policy with Apple case

FBI Director James Comey on Thursday insisted the FBI is not seeking authority to unlock iPhones beyond the one used in the San Bernardino terrorist attack.

“I’ve been very keen to keep the bureau out of the policy making business,” he said during a rare open House Intelligence Committee hearing.

Comey maintained that the FBI’s request only applies to one phone in one case.

“The FBI focuses on case and then case and then case,” he said. “The San Bernardino litigation is not about us trying to send a message or establish some precedent, it really isn’t. It’s about trying to be competent in investigating something that is an active investigation.”

{mosads}Apple defied a court order last week directing it to help the FBI unlock an iPhone used by one of the two shooters in the deadly attack that left 14 people dead.

Apple — backed by numerous congressional Democrats — believes complying with the court order could set a precedent that gives the FBI broader power to force companies to give investigators access to encrypted devices.

Several Democrats, including Intelligence ranking member Adam Schiff (D-Calif.) and Rep. Jim Himes (D-Conn.), pressed Comey at the hearing on his assertion that the FBI request only applies to the one case.

Himes, the top Democrat on the House Subcommittee on the National Security Agency and Cybersecurity, directly asked Comey what powers the FBI thought it did or did not have in cases involving secure devices.

The Apple court order compels the company to write new software that would disable a failsafe that triggers the phone to wipe its own memory if an incorrect password is inputted 10 times in a row. The change would allow the FBI to access the device.

“My question is, where does this authority end?” Himes asked.

“For example, is it the position of the FBI that it has the authority to compel the inclusion of code into a new device? Can you paint a very bright line for us with respect to where you think that authority ends that might reassure those people who say, ‘Where does it end?’”

Comey hedged in response.

“I don’t think I can by virtue of expertise, or should, by virtue of my role,” he said. “I really do think the Department of Justice, the lawyers who are representing the government in this case, are best situated to do that.

“I’m really not somebody qualified to offer you a good answer to that one,” he added.

Himes tried a different approach.

“Ok, so it’s not at this point in time a belief of the FBI that the authority could go beyond what it has requests in this particular case?”

“Yeah, I actually have not thought of it,” Comey replied, while acknowledging the decision in this case would inform future court cases.

It will be up to the court system to determine the limits of the FBI’s power in these instances, Comey added.

Many lawmakers on both sides of the aisle have said they would rather see Congress, not the courts, set these powers.

Himes said Congress will “shirk” its “constitutional duty” if it doesn’t weigh in.

But it’s unclear how Congress would do that.

Sens. Richard Burr (R-N.C.) and Dianne Feinstein (D-Calif.) — the Intelligence committee’s leaders — are working on a bill that would force companies to comply with court orders like the one Apple rebuffed.

But their efforts haven’t gained much backing on Capitol Hill.

House Homeland Security Committee Chairman Michael McCaul (R-Texas) and Sen. Mark Warner (D-Va.) will introduce next week a potential compromise bill that would establish a national commission exploring how police can get at encrypted data without endangering Americans’ privacy.

“I predict it gets a lot of momentum,” McCaul said on Wednesday. “I do believe the administration will be supportive.”