Apple's Top Lawyer Will Tell Congress Tuesday "Encryption Is a Good Thing"

As expected, Apple will attempt to take its court battle with the FBI to Congress. On Tuesday, the House Judiciary Committee will hear testimony from both sides, and today the company released its prepared remarks.

Apple’s prepared statement, which is posted on the House’s Judiciary Committee website, will be delivered by Apple’s senior vice president and general counsel Bruce Sewell as a prelude to an interrogative barrage. Also speaking at the hearing — titled, “The Encryption Tightrope: Balancing Americans’ Security and Privacy” — are FBI Director James Comey, Worcester Polytechnic Institute Professor of Cybersecurity Policy Susan Landau, and New York County District Attorney Cyrus Vance, Jr.

By bringing the issue to this table, Apple is, in effect, stating its belief that such an important decision should not be left to a small-fry judge in California, and instead should be left to those who represent the people. A judge can argue that an outrageously broad, blank-check law technically applies in this case, and therefore that Apple must assist the FBI, but Apple would prefer that Congress, instead, adjudicate such a consequential decision. Apple would otherwise face a dangerous precedent, not to mention that the last bastion of big-tech legitimacy would crumble before our eyes.

In the statement, Sewell makes clear that Apple a) supports law enforcement agencies, b) has “a team of dedicated professionals that are on call 24 hours a day, seven days a week, 365 days a year to assist law enforcement,” and c) has already provided assistance to the FBI in the San Bernardino case. Yet Apple’s additional burden — the “extraordinary circumstance” around which this case pivots — is to create an operating system that, it claims, does not yet exist. Just for the FBI. And the FBI, all the while, is saying that this custom-made, Apple-back-door operating system will only be used once. Here’s Sewell’s direct response:

As we have told them — and as we have told the American public — building that software tool would not affect just one iPhone. It would weaken the security for all of them. In fact, just last week Director Comey agreed that the FBI would likely use this precedent in other cases involving other phones. District Attorney Vance has also said he would absolutely plan to use this on over 175 phones. We can all agree this is not about access to just one iPhone.

Comey, we may presume, will spout off about the FBI’s merits and Apple’s gall. Landau and Vance’s testimonies are now available online — here and here, respectively. (Comey’s testimony is not online.)

The former witness, Landau, will give an in-depth overview of the issues, giving perspective to the San Bernardino case in particular as well as the encryption debate in general. (She’ll be mentioning the fact that the iPhone at the center of the case probably doesn’t matter.) She will conclude that the government ought not compel Apple’s assistance. Here’s Landau:

In the wake of the terrorist attacks in San Bernardino, it is easy to make a decision that argues in favor of short-term security by enabling this week’s investigation. It is much harder to make the decision that provides for long-term safety. But the preamble [to the Constitution] tells us to do so. We have the option to press companies to develop as secure and private devices as they can, or to press them to go the other way. Let us make the right decision, for our safety, long-term security, and humanity.

District Attorney Vance will speak last, and he’ll be coming out firing against Apple. In his testimony, he’ll be concluding with the following opinionated, normative proclamations:

Technology companies should not be able to dictate who can access key evidence in criminal investigations. No device or company, no matter how popular, should be able to exempt itself from court obligations unilaterally. And they should not be able to write their own laws. I do not believe Americans would want to cede this vast authority to private enterprise. That authority should rest with the people’s elected officials. I urge Congress to enact a national solution.

Given that the sides are split evenly — Sewell and Landau in one corner of the ring, Comey and Landau in the other — the ensuing question-and-answer period will likely be thrilling to watch.

Here’s the full statement:

Thank you, Mr. Chairman. It’s my pleasure to appear before you and the Committee today on behalf of Apple. We appreciate your invitation and the opportunity to be part of the discussion on this important issue which centers on the civil liberties at the foundation of our country.

I want to repeat something we have said since the beginning — that the victims and families of the San Bernardino attacks have our deepest sympathies and we strongly agree that justice should be served. Apple has no sympathy for terrorists.

We have the utmost respect for law enforcement and share their goal of creating a safer world. We have a team of dedicated professionals that are on call 24 hours a day, seven days a week, 365 days a year to assist law enforcement. When the FBI came to us in the immediate aftermath of the San Bernardino attacks, we gave all the information we had related to their investigation. And we went beyond that by making Apple engineers available to advise them on a number of additional investigative options.

But we now find ourselves at the center of an extraordinary circumstance. The FBI has asked a Court to order us to give them something we don’t have. To create an operating system that does not exist — because it would be too dangerous. They are asking for a backdoor into the iPhone — specifically to build a software tool that can break the encryption system which protects personal information on every iPhone.

As we have told them — and as we have told the American public — building that software tool would not affect just one iPhone. It would weaken the security for all of them. In fact, just last week Director Comey agreed that the FBI would likely use this precedent in other cases involving other phones. District Attorney Vance has also said he would absolutely plan to use this on over 175 phones. We can all agree this is not about access to just one iPhone.

The FBI is asking Apple to weaken the security of our products. Hackers and cyber criminals could use this to wreak havoc on our privacy and personal safety. It would set a dangerous precedent for government intrusion on the privacy and safety of its citizens.

Hundreds of millions of law-abiding people trust Apple’s products with the most intimate details of their daily lives – photos, private conversations, health data, financial accounts, and information about the user’s location as well as the location of their friends and families. Some of you might have an iPhone in your pocket right now, and if you think about it, there’s probably more information stored on that iPhone than a thief could steal by breaking into your house. The only way we know to protect that data is through strong encryption.

Every day, over a trillion transactions occur safely over the Internet as a result of encrypted communications. These range from online banking and credit card transactions to the exchange of healthcare records, ideas that will change the world for the better, and communications between loved ones. The US government has spent tens of millions of dollars through the Open Technology Fund and other US government programs to fund strong encryption. The Review Group on Intelligence and Communications Technology, convened by

President Obama, urged the US government to fully support and not in any way subvert, undermine, weaken, or make vulnerable generally available commercial software.

Encryption is a good thing, a necessary thing. We have been using it in our products for over a decade. As attacks on our customers’ data become increasingly sophisticated, the tools we use to defend against them must get stronger too. Weakening encryption will only hurt consumers and other well-meaning users who rely on companies like Apple to protect their personal information.

Today’s hearing is titled Balancing Americans’ Security and Privacy. We believe we can, and we must, have both. Protecting our data with encryption and other methods preserves our privacy and it keeps people safe.

The American people deserve an honest conversation around the important questions stemming from the FBI’s current demand:

Do we want to put a limit on the technology that protects our data, and therefore our privacy and our safety, in the face of increasingly sophisticated cyber attacks?

Should the FBI be allowed to stop Apple, or any company, from offering the American people the safest and most secure product it can make?

Should the FBI have the right to compel a company to produce a product it doesn’t already make, to the FBI’s exact specifications and for the FBI’s use?

We believe that each of these questions deserves a healthy discussion, and any decision should be made after a thoughtful and honest consideration of the facts.

Most importantly, the decisions should be made by you and your colleagues as representatives of the people, rather than through a warrant request based on a 220 year old-statute.

At Apple, we are ready to have this conversation. The feedback and support we’re hearing indicate to us that the American people are ready, too.

We feel strongly that our customers, their families, their friends and their neighbors will be better protected from thieves and terrorists if we can offer the very best protections for their data. And at the same time, the freedoms and liberties we all cherish will be more secure.

Thank you for your time. I look forward to answering your questions.