USA Freedom Act author spars with Apple over FBI case

The author of last year’s surveillance reform legislation on Tuesday warned a senior Apple executive, “you aren’t gonna like the result” if Congress settles the debate over when law enforcement should have access to secure devices.

Apple last month defied an FBI court order asking for assistance in unlocking an iPhone used by one of the San Bernardino, Calif., shooters. Since then, the company has has insisted that Congress, not the courts, should determine what power law enforcement has to force companies to help bypass security measures.

{mosads}The House Judiciary Committee on Tuesday heard testimony from both FBI Director James Comey and Apple General Counsel Bruce Sewell on their standoff, which is currently playing out in federal court.

Rep. Jim Sensenbrenner (R-Wis.) — who sponsored the recent spying powers overhaul bill, the USA Freedom Act — chided Apple for rebuffing the order without providing its own alternative solution.

“You haven’t said what Apple will support,” he told Sewell. “All you’ve been doing is saying no, no, no, no.”

Sensenbrenner was backed up by other Republican colleagues, including Rep. Trey Gowdy (R-S.C.).

“See Mr. Sewell, we draft [a legislative solution] and then your army of government relations folks opposes it,” he said. “So I’m just trying to save us time.”

The FBI has requested that Apple create software to disable a failsafe feature that wipes the phone’s memory when an incorrect password is inputted 10 times in a row. Such a change would allow the FBI to hack into the phone in under half an hour, Comey told lawmakers on Tuesday.

But Apple claims creating such software “would be too dangerous,” Sewell said, since it could be used to crack all other iPhones. Complying would also give the FBI a precedent to ask for greater assistance in similar cases around the country, he added.

“Should the FBI be allowed to stop Apple or any company from offering the American people the safest and most secure products it can make?” Sewell asked.

But Sensenbrenner — who chairs the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security — went after the company’s stance.

“You’re operating in a vacuum,” he said. “You haven’t told us one thing about what you do like.”

In a series of short exchanges, Sensenbrenner peppered Sewell with questions about what Congress should do.

“What’s your proposed legislative response? Do you have a bill for us to consider?” he asked

“I do not have a bill for you,” Sewell replied.

“Ok, thank you, that answers that,” Sensenbrenner said, cutting in.

“What policy proposal would Apple support?” he continued.

“What we’re asking for, congressman, is a debate on this,” Sewell said.

But Sensenbrenner predicted Apple would be unhappy with whatever Congress decides to do.

“I guess that what your position is, because you don’t have anything positive, you know, is to simply leave us to our own devices,” he said. “Well we’d be very happy to do that, but I can guarantee you, you aren’t gonna like the result.”

Gowdy doubled down on this approach minutes later.

“Where is your proposed legislative remedy?” he asked. “How will we know whether or not it strikes the right balance if you don’t tell us what you thinking?”

Gowdy predicted that Apple would simply use its lobbying arm to draw out debate and kill any legislation.

Sewell insisted the company would be happy to help draft a bill, but said it should be a collaborative process. Apple has said it would be willing to participate in a proposed national commission to study how law enforcement can get at secure data without violating Americans’ privacy rights.

“Sometimes circumstances are exigent where we don’t have time for a lengthy conversation,” Gowdy said.

House Homeland Security Chairman Michael McCaul and Sen. Mark Warner (D-Va.) on Monday introduced the bill that would create the commission.