Overnight Cybersecurity: FBI, Apple face Congress

Welcome to OVERNIGHT CYBERSECURITY, your daily rundown of the biggest news in the world of hacking and data privacy. We’re here to connect the dots as leaders in government, policy and industry try to counter the rise in cyber threats. What lies ahead for Congress, the administration and the latest company under siege? Whether you’re a consumer, a techie or a D.C. lifer, we’re here to give you…

THE BIG STORIES:

–A WIN IS A WIN?: Apple supporters are a hailing a New York court ruling as a big win in the company’s battle against a federal order demanding that it unlock the iPhone of one of the San Bernardino shooters. “Apple: 1. Government: 0,” said Scott Vernick, head of the data security and privacy practice at Fox Rothschild. On Monday, U.S. Magistrate Judge James Orenstein denied the federal government’s request for a court order compelling Apple to help it unlock an iPhone belonging to Jun Feng, who was charged with drug trafficking. Onlookers, including Apple, say that Orenstein’s decision sets an important, if non-binding, precedent that could have a significant impact on how California judge Sheri Pym rules on the case involving San Bernardino shooter Syed Rizwan Farook. Because of the many parallels between the two cases, a senior Apple executive told reporters on Monday, “it’s going to have some persuasive effect for the magistrate in California. I think she will read it, I think she will analyze the arguments and I think that she will be persuaded by the arguments.” To read our full piece, check back in the morning.

{mosads}–UNDER PRESSURE: Lawmakers on Tuesday pressed FBI Director James Comey to concede that a court order directing Apple to unlock an iPhone used by one of the San Bernardino shooters could set a legal precedent. The pointed questions came from both sides of the aisle. “If the FBI is successful in requiring Apple to unlock its phone, that won’t really be a one-time request, correct?” asked House Judiciary Committee Chairman Bob Goodlatte (R-Va.), who was overseeing a hearing on the topic. “Well the issue of locked phones certainly not,” Comey began, before Goodlatte intervened. “Will it set a precedent for other requests from the Federal Bureau of Investigation and any other law enforcement agency to seek the same assistance in many, many other cases?” he asked. “Sure, potentially,” Comey replied, “because any decision of a court about a matter is potentially useful to other courts, which is what a precedent is.” But Goodlatte and others continued to press the point. Minutes later, Rep. John Conyers (D-Mich.), the Judiciary Committee’s ranking member, followed up. “If you succeed in this case, will the FBI return to the courts in future cases to demand that Apple and other private companies assist you in unlocking secure devices?” he asked. “Potentially, yes,” Comey said. Congress has increasingly inserted itself into the debate over government access to encrypted devices since Apple rebuffed the FBI court order earlier this month. While the two duke it out in court over the order, a bipartisan consensus is emerging that Congress must settle the broader debate before the courts do. To read our full piece, click here.

–YOU SURE YOU WANT TO LET US HANDLE THIS?: But later at the hearing, the author of last year’s surveillance reform legislation on Tuesday warned Apple’s general counsel, “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 insisted that Congress, not the courts, should determine what power law enforcement has to force companies to help bypass security measures. 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.” 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. To read our full piece, click here.

 

UPDATE ON CYBER POLICY:

–LOCK IT UP. The House Oversight Committee on Tuesday approved a contested bill to bolster the government’s cyber defenses over protests from Democrats.

The legislation, from Rep. Gary Palmer (R-Ala.), is intended to give top agency officials greater authority to take swift action to protect their computer networks from hackers.

“In view of the breaches we have already experienced and the constant assault against our government information systems … the need of giving federal agencies the flexibility and authority to secure their third-party systems should be obvious,” Palmer said.

“It should also be obvious that to deny them this authority is to put America’s information systems, and our federal employees, at greater risk,” he added.

But Rep. Elijah Cummings (D-Md.), the committee’s ranking member, warned the measure was “dangerously overbroad.”

“To say this language could be subject to abuse is a gross understatement,” he said. “This bill could open the door to an agency violating other laws in the name of security.”

He singled out the clause that gave officials authority to take “any action” to secure its networks.

“Could ‘any action’ include ignoring directives from the Department of Homeland Security on cyber security?” he asked. “Could ‘any action’ mean violating the Privacy Act?”

The measure passed out of committee by a 21-16 vote.

Get more details on the bill here.

 

LIGHTER CLICK:

–I BELIEVE I CAN FLY. From the same year that produced this epic Space Jam website comes the campaign website for Bob Dole’s 1996 presidential campaign.

So much great clip art. Check it out here.

 

WHO’S IN THE SPOTLIGHT:

–SUPPORTERS OF THE NATIONAL COMMISSION ON DIGITAL SECURITY. The Senate floor was taken over Tuesday afternoon by senators backing a bill to would establish a national commission exploring how police can obtain encrypted data without endangering Americans’ privacy.

The bill, introduced Monday, is intended as a compromise move that could bring together opposing sides in the divisive encryption debate.

Main supporter Sen. Mark Warner (D-Va.) said on the floor that opposing sides in this debate “too often talk past each other.”

While law enforcement officials warn that encryption is increasingly helping terrorists and criminals “go dark” and hide from investigators, privacy advocates and tech companies insist this type of unbreakable encryption is necessary to maintain digital security and online privacy.

Any solution, Sen. Susan Collins (R-Maine) said on the floor, “will undoubtedly require a new law.”

Some have worried the commission will just stall the debate in a situation that should merit swift action.

“Generally, I don’t like commission bills,” Sen. Angus King (I-Maine) said on the floor. “Typically they’re a politician’s way of putting the problem off to someone else in the future. But I have seen them work, and I think this is exactly the right answer in this particular situation because the issue is so complicated. It involves technology, the law — the First, Fourth and Fifth Amendments — and national security.”

Read our past coverage of the bill here. And check out outside reactions to the bill here.

 

A FEATURE IN FOCUS:

–WHO, ME? Federal magistrate judges — low-level jurists who are typically responsible for pretrial matters — have found themselves at the forefront of the national debate over privacy and security.

In both New York and California, it is magistrate judges who are deciding whether the federal government is within its rights to use the All Writs Act to compel Apple to unlock an iPhone.

The situation “is very unusual,” Michael Vatis, a former official with the Justice Department and the FBI, now a partner at Steptoe & Johnson LLP, told The Wall Street Journal. “The traditional view of magistrates is they keep the trains moving on time. They’re not generally trying to set important precedents.”

Read on, here.

 

IN CASE YOU MISSED IT:

Links from our blog, The Hill, and around the Web.

Reps. Zoe Lofgren (D-Calif.) and Darrell Issa (R-Calif.) argue that government “backdoor” access to a single iPhone would undo years of progress in online security. (The LA Times)

The Defense Department plans to hire private contractors to develop a $600-million-plus computer system for a new background check agency being set up after last year’s breach of the Office of Personnel Management. (Reuters)

Britain floated revised legislation on Tuesday that would grant authorities wide-ranging surveillance powers including the right to see which websites people visit. (Reuters)

The Obama administration has warned critical infrastructure providers that a similar cyberattack as the one used to disable part of Ukraine’s power grid two months ago could easily be turned on them. (The New York Times)

Defense Secretary Ash Carter said strong encryption “is a good thing” and appealed to Silicon Valley to work with policy makers to solve the “complex challenges” strong encryption presents to law enforcement. (The Wall Street Journal)

 

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