The Real Culprit in the Apple-FBI Encryption Dispute: Congress

Press Association via AP Images

A federal judge’s February 16 order that Apple Inc. help the FBI unlock a San Bernardino shooter’s iPhone has devolved into a politically and legally charged standoff, with both sides pointing fingers at one another. The real culprit, however, is one few are talking about: Congress. Lawmakers on Capitol Hill have known that a fight like this one was coming for years—and have chosen to sit on their hands.

Both sides in the iPhone stalemate make compelling policy arguments. The FBI wants Apple to devise software to unlock the phone so that investigators may search for additional evidence into the deadly December rampage that killed 14 people and injured 22 others. Apple, on the other hand, wants to ensure that its products aren’t vulnerable to exploitation not only by the government, but by bad actors at home and abroad. And the legal authority at issue—the 1789 All Writs Act—is a cryptic, vague statute written mere decades after Benjamin Franklin began experimenting with electricity. Suffice it to say, this is murky, unsettled territory in which crucial legal questions remain unanswered.

In the middle stand lawmakers on Capitol Hill, who could theoretically help broker a compromise, but who have a long history of punting on this issue. As a report last month from Harvard University’s Berkman Center for Internet and Society explained, federal officials have been raising alarm bells since 2010 about what FBI Director James Comey has called the risk that terrorists and other dangerous criminals are “going dark.” As the Berkman Center report puts it, “companies are increasingly adopting technological architectures that inhibit the government’s ability to obtain access to communications, even in circumstances that satisfy the Fourth Amendment’s warrant requirements.” The report stopped short of suggesting that conducting surveillance of criminals and bad actors will become impossible, but warned that “conducting certain types of surveillance has, to some extent, become more difficult in light of technological changes.”

Reasonable minds will surely disagree over how best to balance the government’s claim to need what it euphemistically calls “exceptional access” with the risks and vulnerabilities that such “backdoors” would necessarily create. But one thing should be beyond dispute: It doesn’t make sense for federal magistrates to make tough decisions about where to draw the line ad hoc and under duress, in cases in which the urgency of the government’s demands may well supersede longer-term security and privacy concerns. Yet that is exactly what is happening in the prolonged standoff between Apple and the federal government.

It’s not as if Congress is unaware of the problem; the House Judiciary Committee hosted its first hearing on the matter in February 2011. The Senate Judiciary Committee has held multiple hearings on the topic, including one in July 2015; the Senate Intelligence Committee followed suit just one week later; and the House Judiciary Committee hosted its latest hearing on the subject—a five-and-a-half-hour marathon—earlier this month.

Nor is the problem that Congress doesn’t know how to legislate in this field. When Congress enacted the Communications Assistance for Law Enforcement Act (CALEA) in 1994, it was responding to similar concerns that technology would interfere with the government’s ability to conduct lawful electronic surveillance. Among other things, that law requires telecommunications firms (and manufacturers of telecommunications equipment) to build in surveillance capabilities that allow authorized federal agencies to wiretap communications for which they have an appropriate court order. Of course, no one would argue that CALEA has been a perfect (and uncontroversial) solution. But it was far better than nothing, and proved, if nothing else, that Congress can provide hard-and-fast rules to govern the security relationship between the government and the private sector when it wants to.

But in the last decade, as the Apple/FBI fight demonstrates, Congress has simply stopped governing, period. As of March 1, the 114th Congress had enacted only 126 public laws—on pace to shatter the 112th Congress’s ignominious record for the least-productive legislature in American history. (By contrast, the Congress that President Truman famously derided as the “Do-Nothing Congress” passed 906 bills.) Whether in the context of the “going dark” debate, the use of military force against the Islamic State, immigration reform, environmental regulation, or, more recently, the replacement of Justice Scalia on the Supreme Court, Congress seems perfectly content to hold hearings, make speeches, write op-eds, and then … do nothing.

In some cases, inaction may well turn out to be a viable and defensible policy choice. But not here. First, the fight between Apple and the FBI has already produced competing and conflicting court orders: one from a California federal court ordering Apple to comply; one from a New York federal court refusing a similar request from the government. If Congress doesn’t act, one way or the other, the courts will have to move in—and there are a number of reasons why leaving the “going dark” in the hands of judges is a bad idea. As noted, courts may be unable to accurately balance undifferentiated privacy and security concerns against government demands in individuals cases. And, as has been true in the Apple case in New York, courts may interpret congressional inaction as an affirmative decision to withhold authority from the government—in which case Congress has accomplished nothing by skirting the issue.

Second, the policy vacuum at the federal level has prompted several states to consider their own legislation that would ban the sale of smartphones, like the iPhone 6, with strong end-to-end encryption. Needless to say, allowing individual states to take matters into their own hands would be even worse than the status quo, since the resulting patchwork of laws would not only create headaches for consumers and providers alike, but would almost certainly require the creation of the very backdoors at issue in the federal debate.

Just before its widely viewed hearing on the Apple/FBI fight earlier this month, the House Judiciary Committee held another, far-less-noticed hearing on the “Original Understanding of the Role of Congress and How Far We’ve Drifted From It.” Outwardly, the two meetings had nothing to do with one other. But the conclusion of the witnesses in the first session—that Congress has stopped doing its job—went a long way toward explaining the cause of the second. Ultimately, as the litigation in both the San Bernardino and New York cases underscores, it is Congress’s refusal to legislate—and not the march of technology or rulings like the New York court’s—that has left government law enforcement agencies in the dark. 


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