Transcripts For CSPAN Hearing On Encryption And Federal Investigations 20160306

On him. The joy and peace in that mass were a gift to many, who continue to respond to it. Since his death, i have learned so much about my fathers faith and how he lived it. That our understanding of him continue to grow in to death. That we have a new understanding of gods love. Some of my friends have expressed this beautifully in the jewish tradition. May his memory be a blessing. It is that and a source of grace and opportunity to grow in faith. I cannot think of any greater legacy. Thank you. [applause] thank you, everyone. [applause] [captions Copyright National cable satellite corp. 2016] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] democrats are holding caucuses in maine. Republicans have a primary in puerto rico. The results asou they become available. Yesterday, senator bernie kansas won caucuses in and nebraska, while clinton won the primary vote in louisiana. Donald trump won in louisiana and kentucky. Ted cruz took maine and kansas. Our road to the white house coverage continues today with jumper with Governor John Kasich live in columbus, ohio. Appearing with the governor will be former california governor Arnold Schwarzenegger at 2 30 p. M. Here on cspan. Teacher. The most important thing to me is education. I am looking out the candidates very closely for their programs in education. I am not happy in the last 15 years or so with the core standards and the common core that has been happening. So i am going to vote for either Bernie Sanders or hillary clinton. I am happy with those choices and am interested to see if their education plans would be implemented. Voting for ted cruz, because he is a constitutional scholar, eloquent, and principled, consistently, out of all of the candidates so far. Fbi director james comey testified tuesday at a hearing of the House Judiciary Committee on the bureaus efforts to access information while investigating potential crime. He answered questions about the fbis ability to investigate the contents of Smart Devices and how the needs of Law Enforcement are even evolving along with technology. This portion of the hearing is one hour and 45 minutes. Willgoodlatte we continue. And we recognize mr. J fits. Thank you for being here. My grandfather is a career fbi agent. The big question for our country is how many how much privacy are we going to give up in the name of security. As he said, there is no easy answer. But when historically, with all the resources and assets of the federal government, all the expertise, all the billions of dollars, when has it been a businessto force or private entity . The new york cases the seminal topic. Lets talk about what you can see and what you can do. With all due respect to the fbi, what apple had suggested they do in order to rich read the data, correct . When they went to change the password, that screwed things up, did it not . Dir. Comey i dont know that thats accurate, actually. I i wasnt there, dont have complete visibility, but i agreed with the questioner earlier. There was an issue created by an effort after the fbis effort to get in quickly. Rep. Chaffetz and and and if they didnt reset it, then they could have gone to a wifi local wifi a known wifi access and performed that backup so they could go to the cloud and look at the data, correct . Dir. Comey yes. You could go in the cloud through that mechanism, anything that was backuppable, to make up a word the cloud, but that that does not solve the problem. I would still be talking about it otherwise. Rep. Chaffetz but lets talk about what the government can see, on using a phone. And its not just an iphone, but you can look at metadata, correct . That is not encrypted, correct . Dir. Comey yes. Rep. Chaffetz if i called someone else or that phone had called other people, all of that information is available to the ei . Dir. Comey in most circumstances, right metadata rep. Chaffetz in this case lets talk about this case. You you want to talk about this case. Dir. Comey my understanding is you can see most of the metadata. Rep. Chaffetz how would you define metadata . Comey i was just going to say that. Metadata, as i understand it, is records of time of contact, numbers assigned to the caller or texture. But content. You cannot see what i said but you can see that i texted to you in erie. With texts in particular, thats tricky, particularly texting using imessage. Theres limitations to our ability to see the metadata around that. Again, i am not an expert. That is my understanding. Rep. Chaffetz and do you believe that geolocation, if youre tracking somebodys actual where they are, is that content, or is that metadata . Dir. Comey my understanding is it depends upon whether youre talking historical or realtime, when it comes to geolocation data. But it can very much implicate the warrant requirement and does in the fbi work a lot. Rep. Chaffetz so thats what were trying to what i whats whats frustrating to me, being on judiciary, being the chairman of the oversight committee, there is nobody on this panel in the representative of the people have been able to see what the guidance is an understanding how you interpret and what you are actually doing or what or not doing. Dir. Comey youve asked that of the fbi and not been able to get it . Rep. Chaffetz the department of justice today. We have been asking for this for years. Whats frustrating is the department of justice is asking for more cools, compulsion, and we cannot even see what you are already doing. We cant even see to the degree youre using stingrays and how they work. I mean, i think i understand how they work, but what sort of requirements are there . Articulable suspicion . A probable cause one being used or needed . And its not just the fbi. I mean, youve got the irs and Social Security and others using stingrays again, other tools that, i would argue, are to somebodysnt lives and not just the metadata you are able to see. So how do we get exposure . How do we how do we help you if we cant if you routinely refuse and i say you, meaning the department of in explainingess to us what tools you already have an what you can access . How do we solve that . Dir. Comey yeah, i dont i dont have a great answer, sitting here. Ill go find out whats been asked for and whats been given. I like the idea of giving as much transparency as possible. I think people find it reassuring. We always use search warrants. It should not be that hard to give you that information. Rep. Chaffetz what i worry about you may be responsible, but i dont know what the irs is doing with them, and i have a hard time figuring out when that is responsible. Last comment, mr. Chairman. To what degree are you able to access and get into either in this case or broadly are you able to search social media in general and are you using that as an effect of tool to investigate and combat what you need to do . Rep. Goodlatte the time of the gentleman has expired. The witness can answer the question. Dir. Comey social media is a feature of all of our lives, and so its a feature of a lot of our investigations. Sometimes, it gives us useful information, sometimes knots. It is hard to answer in the abstract. But it is a big part of our work. Rep. Goodlatte chair thanks the gentleman, and recognizes the gentleman from georgia, mr. Johnson, for five minutes. Rep. Johnson thank you, director comey. The framers of our constitution recognized a right to privacy that americans would enjoy. Fourth amendment pretty much implies that right to privacy, does it not . Dir. Comey im not a constitutional scholar. I think a scholar, if he were sitting here, might say its not the Fourth Amendment thats the source of the right to privacy, it is other amendments to the constitution. But thats a technical answer. The Fourth Amendment is critically important, because its a restriction on government power. You may not look at the peoples houses, their effects, without a warrant and independent judiciary. Rep. Johnson but it also grants, impliedly to the government, the Fourth Amendment, the authority to search and seize when when when the search or seizure is reasonable, is that correct . Dir. Comey again, to be technical, i think the answer is congress has given the government that authority through statute. The Fourth Amendment is a restriction on that authority. Rep. Johnson the Fourth Amendment says that the right of the people to be secure in their place in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrant shall be issued but on opel cause. What i am reading into the Fourth Amendment is that the people do have a right to privacy, a right to be secure in houses, papers, and effects. But i am also reading into what an implied responsibility of the government to, on occasion, search and seize. Would that be your reading of it also . Dir. Comey yes. Rep. Johnson and of course, upon probable cause. But there are some circumstances where, in the hot pursuit, or at the time of an arrest, there are some exceptions that have been carved out to where a warrant is not always required to search and seize, is that correct . Dir. Comey yes. You mentioned one the socalled exigent circumstances doctrine, where if youre in the middle of an emergency and youre looking for a gun that a bad guy may have hate in a car or something, you do not necessarily have to get the warrant. If you have the factual basis, you can do the search, and then have the judge look at it and validate it. Rep. Johnson now, even in a situation where exigent circumstances exist, technology has now brought us to the point where Law Enforcement or government is preempted from being able to search and seize, is that correct . The technology has produced this result . Dir. Comey yeah, i think technology has allowed us to create zones of complete privacy, which sounds like an awesome thing until you really think about it. But those zones prohibit any Government Action under the Fourth Amendment or under our search authority. Well, itsn actually a zone of impunity, would it not be . A zone where bad things can happen and the security of americans can be placed at risk. Dir. Comey potentially, yes, sir. Rep. Johnson and that is the situation that we have with endtoend encryption. Is that not correct . Dir. Comey i think thats a fair description where we have communications where, even with a judges order cant be intercepted. Rep. Johnson now, you said that you were not a constitutional scholar, and neither am i. But does it seem reasonable that our that the framers of the anytitution meant to exempt domain from its authority to be able to search and seize if it is based on probable cause or some exigent circumstance allows for a search and seizure with less than a warrant and a showing of probable cause . Dir. Comey i doubt that they obviously, i doubt that they imagined the devices we have today and the ways of communicating. But i also doubt that they imagined they would be anyplace in American Life where Law Enforcement, with lawful authority, could not go. And the reason i say that is the First Amendment talks about the peoples homes. Is there a more important place to any of us than our homes . From the founding of this country, it was contemplated that Law Enforcement could go in your house with the appropriate medication and oversight. So to me, the logic of that tells me they wouldnt have imagine any box or storage area or device that could never be entered. Rep. Johnson so from that standpoint, to be a strict constructionist about the constitution and the Fourth Amendment, its ridiculous that anyone would think that we would not be able to take our present circumstances and shape current nicetiespreciate the of todays practical realities i know i am rambling a bit, but did you understand what i just said . Dir. Comey i understand what you said, sir. Rep. Johnson would you agree or disagree with me . Rep. Goodlatte time for the gentleman has expired. The director may answer the question. Dir. Comey i think its the kind of question that democracies were built to wrestle with and that the congress of the United States is fully capable of wrestling with. Rep. Goodlatte the time for the gentleman has expired. The chair recognizes the gentleman from pennsylvania, mr. Marino for five minutes. Rep. Marino thank you, chairman. Mr. Director, its always a pleasure. Im going to expand a little bit on one of judge poles questions. Is the bureau asking apple to simply turn over the penetration code order you want it at your disposal . Dir. Comey as i understand the judges order, the way it could work out here is that the maker of the phone would write the code, keep the phone and the code entirely in their office send, and the fbi would things electronically. So we would not have the phone or the code. Rep. Marino thats a good point to clarify. Because theres some been a lot of rumors out there. Im going to switch to the courts a little bit here. Do you see the federal court resolving the warrant issue the bureau is presently faced with. Decision comesat down. Or should Congress Legislate the issue now, if at all . Dir. Comey i dont i appreciate the question. I dont think thats for me to say. I do think the courts some people have said, so, in the middle of this terrorism investigation, why did you not come to congress . Because we are in the middle of a terrorism investigation. The courts could sort that out faster, but only in this case. I do not see how the courts can resolve this tension between privacy and Public Safety we are all feeling. Rep. Marino another good point. Given that most of the our social, professional, and very personal information is on our desktop computers, our laptops , on our pads, and now more than ever on these things, what is your position on notching up the level at which members of the federal judiciary can approve a warrant to access clear clear to access critically valuable evidence, particularly when fighting terrorism . Dir. Comey do you mean making the threshold something above probable cause . Rep. Marino no, not the threshold. The judicial the federal judicial individuals making this decision. Right now i understand, its a magistrate. When i was at the state level, we could do things at the magistrate level. But then we had to go to the superior court. And then working the federal to one or had to go two Different Levels. What is your position on that . Dir. Comey i see what youre saying. So instead of having the magistrate judges decide these questions, the District Court might . Rep. Marino yes, and no disrespect to magistrate courts, im very good friends with a lot of those brilliant people who will eventually, i know, go to the bench. But from the perspective of the public, a more narrowly defined limited number of people making that decision concerning the l tronics we have. Dir. Comey honestly, congressman, i havent thought about that. I agree with you, i have a number of friends who are magistrate judges and they are awesome and think well and will well. I think they are capable of handling these, but i have not thought about it further than that. Rep. Marino ok. And just for the record, ive managed a couple of prosecution offices, and ive never gone to the experts, whether its in dna or whether it is in these electronics and asked them did you complete everything did you think you should have completed . Rep. Goodlatte thank you, mr. Marino. The chair recognizes the gentlewoman from california, ms. Chu, for five minutes. Rep. Chu director comey, my district is next to San Bernardino. After the terror attack, we mourned the loss of 14 lives and empathized with the 22 wounded. And there is fear and anxiety constituents. So our discussion here is particularly important to the people back home. Area who many in our want answers. But there are also many who feel conflicted about putting their own privacy at risk. So, my first question to you is, under federal law, we do not require Technology Companies to maintain a key to unlock encrypted information in the devices they sell to customers. Some of the witnesses well hear from today argue that if such a key or software was developed to help the fbi access a device used by syed farook, it would make the millions of other devices in use today vulnerable. How can we ensure that were not creating legal or technical backdoors to u. S. Technology that will empower other foreign governments in taking advantage of this loophole . Dir. Comey thats a great question. I think what you have to do is just talk to people on all sides of it who are true experts, which i am not, but ive also talked to a lot of experts. I am an optimist. I do not think we have given this the shot it deserves. I do not think the most creative and innovative people in our country have had an incentive to solve this problem. But when i look at particular phones in the fall of 2014, the makers of these phones could open them and i dont remember people saying the world was ending at that point and that we are all exposed. I do think judgments have been made that are not irreversible. The best way about it is talk to people so why do you make the phone this way and what is the possibility . The world i imagine is a world where people comply with warrants. How they do it is up to them. Lots of phone makers and providers of email and text provide secure services and comply with warrants. Thats just the way theyve structured their business, and so it gives me a sense of optimism that this is not an impossible problem to solve. Really hard in it will involve you talking to the people who know this work. Rep. Chu well, id like to talk about Law Enforcement finding technical solutions. I understand there may be other methods or solutions for Law Enforcement when it comes to recovering data on a smart phone. Professor landau argues in her testimony later today that solutions to accessing the data already exist within the forensic analysis community, solutions which may include jailbreaking the phone, amongst others. Or, she says, other entities within the federal government may have the expertise to crack the code. Has the fbi pursued these other methods or try to get help from within the federal government such as from agencies like the nsa . Dir. Comey yes, is the answer. Weve talked to anybody who will talk to us about it, and i welcome additional suggestions. Again, you have to be very specific. 5c running ios9. What are the capabilities against that phone . There are versions of different phone manufacturers and in models that it is possible to break the phone without asking the manufacturer to do it. Weve not found a way to break the 5c running ios9. And as i said, in a way, this is kind of yesterdays problem, because the 5c, although im sure it is a great phone, has been overtaken by the sixth and will be overtaken by others which will make this yesterdays. Rep. Chu so, let me ask this, like smartphones, safes can be another form of storage of personal information. Similarly to how Technology Companies are not required to maintain a key for encryption, safe manufacturers are not required to maintain keys to safes. Given this, Law Enforcement has been able to find a way to get into safes under certain circumstances or obtain critical information through other avenues. How does this differ from unlocking a smartphone . Its clear that technology is outpacing Law Enforcements ability to get information from devices like the iphone, even with the proper warrant. Fbi or lawt the Enforcement Agency that bears the responsibility to figure out how to unlock that . Dir. Comey ill take the last part, first. Sure, if we can figure it out. The problem with the safe comparison is theres no safe in the world that cant be opened. If experts cannot crack it, we will pull it out. Low the door off. So this is different. The awesome power of encryption makes that comparison inapt. Where Law Enforcement can, lawfully, figure out how to do it. We will and should. But there will be occasions and it is going to sweep across and the updating of phones changing of apps we communicate with and encrypt, it will outstrip our ability to do it on our own. Rep. Chu thank you, i yield back. Rep. Goodlatte the chair thanks the gentlewoman. The gentleman from south carolina, mr. Gowdy, is recognized for five minutes. Rep. Gowdy thank you, mr. Chairman. Mr. Director, thank you for your service to the country. And i do appreciate your acknowledge and that of my colleagues of the difficulty in recognizing binary constitutional my biases towards Public Safety. Because of this loosely held conviction that the right to counsel, the right to free speech, right to a jury trial is if you are dead. So i reconcile those competing principles in favor of Public Safety. My concern is i hear you testify is that i have colleagues and others advocating for these evidencefree zones. They will be compartments of life where you are precluded from going to find evidence of anything. I am trying to determine whether or not we, as a society, will accept that. That there are certain no matter how compelling the is, we ares interest declaring right now this is an evidencefree zone. You cannot go here, no matter if there is a terrorist plot the case the magistrate decided yesterday in new york is a drug case. Those are a dime a dozen. National security . Theres nothing that the government has a more compelling interest in than that, and were going to create evidencefree zones . Am i missing something . Is that how you see it . You just cannot go into these categories unless somebody consents . Dir. Comey thats my worry and why i think its so important we have this conversation. Because even i, on the surface, think it sounds great when people say, hey, by this device, no one will be able to look into your stuff. Times when Law Enforcement saves people by looking into your stuff. And so again, i come to the case of the baton rouge, eightmonth pregnant women, shot when she opens her door. He mom says she keeps a diary on her phone. We cannot look at the diary to figure out what may have been going on in her life. That is the problem. I love privacy, but we also love Public Safety. You have to take the time to think ok, theres that, and what are the costs of that . And thats where this collision is coming in. Rep. Gowdy want my fellow well, i love privacy, too, but i want my fellow citizens to understand that most of us also in varying degrees also love our bodies and the physical integrity of our body. Ablehe government has been to access orders for either blood against the will of the defendant or, in some instances, surgical procedures against the will of the defendant. Sayhen i hear my colleagues have you ever asked a nongovernment actor to participate in the securing of evidence . Absolutely. That is what the surgeon does. If you have a bullet of an officer who was shot and a defendant, you can go to the judge and ask the judge to force a nurse or surgeon to remove the bullet. So if you contend and trade the integrity of the human body in certain categories and cases, aow the hell you cant access phone i find baffling. If apple were here, and theyre going to be here, how would they tell you to do it . If there were a plot on an iphone to commit an act of hypothetically, and apple facility. And they expected you to prevent it, how would they expect you to access the material on this phone . Dir. Comey i think they would say what theyve said, which i believe is in good faith, that we have designed this in response to what we believe to be the demands of our customers to be immune to any government warrant for the manufacturers efforts to get in the phone. We think that is what people want. That may be so, except that i hope folks will look at this conversation and say really, do i want that . And take a step back and understand our entire country is based on balance. In a society where we aspire to be safe and have our families and children safe, we have to find a way to accommodate both. Rep. Gowdy so so apple on the one hand wants us to kind of weigh and balance privacy, except theyve done it for us. They have said, at least as it relates to this phone, we have already done that weighing and balancing. And there is no governmental interest compelling enough for us to allow you to try to guess the password of a dead persons phone that is owned by a city government. I theres no balancing to be done. Theyve already done it for us. I would just i would just say, director in conclusion, we bureau to do a lot of things. Anticipate crime. Stop it before it happens. And all youre asking is be able to guess the password and all have the phone selfdestruct. And you can go into peoples body and remove a bullet but can not going to a dead persons iphone, i find it baffling. Rep. Goodlatte the gentlemans time has expired. The chair recognizes the gentleman from florida, mr. Deutch, for five minutes. Rep. Deutch thank you, mr. Chairman. Director comey, thank you for being here. Thank you for your service and that of the men and women who work for you. Were all grateful for what they do. I want to take a moment before i ask you a couple of questions here to let you know that bob levinson, who was an agent for over 20 years 28 years at the continuespartment to be missing. I want to thank you for what you have done and thank you for the Facebook Page you have put out. I would love a report on the effectiveness on what you have heard from that. And i want to more than anything else, on behalf of his family, i want to thank you for never forgetting this former agent. And i am grateful for that. Dir. Comey thank you, sir. Hell never be forgotten. Rep. Deutch now, i want to agree with mr. Gowdy that if this were as easy as Public Safety or privacy, i think most of us, probably all of us, if we had to make the choice, we are going to opt for Public Safety for the reason mr. Gowdy spoke of. But what im i have some questions. What im confused about is this. The tool that you would need to take away the dogs, take away the vicious guard dog, is a tool that would disable the auto erase. There is confusion as to whether there is an additional tool you are seeking that would allow you to rapidly cast possible passcodes. Dir. Comey yes, i think theres actually three elements to it. And ive spoken to experts. I hope i get this right. The first is what you said, which is disable the selfdestruct feature. The second is to disable the feature that, between successive iowas nine spreads out the time. So even if we had the ability to guess, it would take years and years to guess. So do away with that function. And the third thing is, which is smaller, is set it up so that we can send you electronic guesses, so we dont have to have an fbi agent sit there and punch in 1, 2, 3, 4 like that. Rep. Deutch and once they created that, would you expect them after this case, would you expect them to preserve that or destroy it . Dir. Comey i do not know. It would depend on what the judges order said. I think thats for the judge to sort out. Thats my recollection. Rep. Deutch and so, heres the issue. I think that vicious guard dog that you want to take away, so that you can pick the lock, is one thing. We do itld where is true. There are all full people. Terrorists. Child predators. Molesters. Who do everything on here. But so do the rest of us. We would like a pack of vicious a pack of vicious guard docs to keep us safe. And the the example of surgical procedures, the reason that that i dont think applies here is because in that case, we know the only one doing the surgical procedure is the doctor operating on the half of Law Enforcement. But when this tool is created, the fear is that it may be used that there are many who may try to get their hands on it and may put at risk our information on our devices. How do you balance it . This is a hard one for me. This is not an either or. I do not see this as binary. Dir. Comey i think its a reasonable question. I also think its something the judge will sort out. Apples contention, which again i believe is made in good faith, is that there would be substantial risk around creating this software. On the government side, kind of could be, though we wrong. The governments argument is that it is your business to protect your software, your innovation. This would be usable in one phone. But that is something the judge would want to sort out. Its not an easy question. Rep. Deutch if if its its the case, though, that its usable in more than one phone, and that it applies beyond there, then the Public Safety concerns that we may have, that a lot of us have, what may happen if the bad guys got access to our phones in our childrens phones, in that case, those are valid, arent they . Dir. Comey sure. The question that i think were going to have litigation about is how reasonable is that concern. And, you know, slippery slope arguments are as attractive. Whatpples engineers say is they are kidnapped and are forced to make the software . That is what the judge has to figure out. Rep. Deutch and i just finally, mr. Chairman, i just worry when we talk about the precedential value, the discussion is taking place wholly within a domestic context. There are countries around the world where we know well that the governments do their best to monitor what happens in their country and, through peoples cell phones, are able to take action. Through people in jail and torture people. And i think that precedential value is Something Else that we have to bear in mind as we engage in this really important, really difficult debate. I yield back, mr. Chairman. Rep. Goodlatte the chair thanks the gentleman. And recognizes the gentleman from florida, mr. Desantis for five minutes. Rep. Desantis good afternoon, director comey. When youre looking at a case like the apple case and you want to be able to, as you said, removed the guard dogs and have the fbi go in, are you concerned about preserving the evidentiary value that can then be used . Or are you more interested in getting information for intel purposes to be used for counterterrorism . Dir. Comey our hope is to do both, but if we have to choose, we want the information first and then wed like it obviously to be in a form that could be used if there were a Court Procedure against somebody someday. Rep. Desantis but i guess is there are there instances in which maybe a company would provide the data but would provide it to you in a way that you would not be able to authenticate that in court . Dir. Comey sure, that happens all the time. Rep. Desantis and thats something that the fbi if thats what you get, then youre fine with that . It depends upon the case, but in general, thats a tool that we use, private cooperation where we may not be able to use the information in court. s and in terms of this, the guy in San Bernardino, it wasnt even his phone and then the owner of the phone has consented for the fbi to have the information, is that correct . Dir. Comey right. We have a search warrant for the phone. The guy who was possessing it is obviously dead, and the and the owner of the phone has consented. Rep. Desantis whats the best analogous case to what youre trying to do here . Because people will look at it and say, well, youre basically commandeering a company to do these things. That is typically not the way it works. What would be an analogous case . Dir. Comey well, everyone in the United States to some degree has an obligation to cooperate with appropriate authority. The question that the court has to resolve is what are the limits of that . Argument is that it may be ok if it requires something that we have already made, but if it is new, it is beyond the scope of the law. As you know, thats something courts do every day in the United States, trying to understand a law and interpret its scope based on a particular set of facts. That is what will be done in San Bernardino. It is being done different in brooklyn. It is being done in different stages across the country. Law enforcement is encountering these devices in different cases. Rep. Desantis have you in your cases, have you gotten an order under the all writs act to just have a defendant, if you have a search warrant, produce the code . Dir. Comey i dont know of a i dont of a similar case. Rep. Desantis in terms of i know some of the Technology Companies are concerned about if theyre creating ways to i guess penetrate their systems, thats creating a backdoor. Terroristsconcern is operate in a variety of spheres. One of the ways they get a lot of bang for their buck is cyberattacks. If companies were creating more Law Enforcement, would that create more vulnerability for people and be more likely that they would be subjected to a potential cyber attack . Dir. Comey potentially, sure. If there were access tools that got loose in the wild or that could be easily stolen or available to bad people, its a concern. A huge part of the bureaus work is protecting privacy by fighting those cyber criminals. It is something we worry about every day. Rep. Desantis well, how would you, then, provide assurances if youre requesting a company to work with you that this doesnt get out into the wild, so to speak . Dir. Comey well, i think in the particular case, we have confidence, i think its justified, that apple is highly professional at protecting its own innovation, information. So the idea is you keep it. You figure out how to store it. You can even take the phone and protected area i think that is something they do well. Again, that is something the judge will sort out. Apples argument i think will be thats not reasonable because there are risks around that. Even though were good at this, it could still get away with us. The judge will have to figure out that. Rep. Desantis great. Thank you. I yield back the balance of my time. Rep. Goodlatte the chair thanks the gentleman and recognizes the gentleman from illinois, mr. Gutierrez. Rep. Gutierrez thank you, mr. Chairman. And thank you, director, for coming in. I will not take my five minutes. I hope all of the members of the committee will take note that the director is actually answering our questions. And that is obviously very refreshing in that we get a lot of witnesses here. It is good to get information without passing judgment. I think that is what you have done well here today. Youre not passing judgment on apple and their motivations. And i think in not questioning peoples motivation, its easier to get a solution. Because once you do that, letsody kind of says ok, get our defenses up. Really what we need to do is defend the American People and not apple or any company or the fbi. But the American People. And i just want to suggest that we continue these conversations. I buy a house, i have no reasonable expectation that if you get a warrant, youre going mygo in any drawer in bedroom to when i buy the house, i do not have the expectations of privacy. When you get a warrant and i do expect you to get one. I come from a time when i wasnt quite sure the Chicago Police and Law Enforcement was actually getting warrants in the city of chicago in the 1960s. So we want to be careful. Im trusting of you. If you were the fbi agent, id say no problem, director comey, come on in. But unfortunately, there are human beings and all the Different Levels of government. I want to say that i am happy you came. Because i do not have that expectation in my car. I do not have that expectation and i do not use the computer a lot i do not have that expectation. But the difference is, and i think youve made it and i think this committee should take it into consideration, we do put a lot of information in these contraptions. And the reason we put them there is that we do not want to put them on a notebook. We want to keep them private. This, if you have a lawful work, you should be able to get it, even for my computer. I think thats where youre going. Could you is that where you think have i heard you right . Dir. Comey i do. I agree with you, except i think the case for privacys Even Stronger than you said. You do have a reasonable expectation of privacy in your home, in your car, and in your devices. Government is required to overcome that by going to one independent judge, showing probable cause, and getting a warrant. What we need to talk about as a country is that we are moving to a place that there are our life. Places in these devices are different from a briefcase and a drawer. Tremendousce with a expectation of privacy. If we are going to move to a place where it is not possible to overcome that, it is a world we have not lived for that has profound consequences for Public Safety, and all im saying we shouldnt drift there, right . Companies that sell stuff should not tell us how to be. The fbi should not tell us how to be. The American People should say what do we want to be an figure that out. Rep. Gutierrez yeah, i think thats i think were on the same place, then, because i do have a reasonable expectation of privacy in my home. But if you go to court, you convince the judge and overcome it, i have never had any expectation that a court order because i bought something, i will be able to overcome a court order. I think we are in the same place. So thank you so much, director, for coming in and sharing your time. I hope you can share more time so we can talk some more. Thank you. Rep. Goodlatte the chair recognizes the gentleman from iowa, mr. King for five minutes. Rep. King thank you, mr. Chairman. Director, thanks for your testimony here and your leadership of the fbi. Im curious about this from a from a perspective that has to do with our global war against radical islamic terrorists. And i have laid out a strategy to defeat that ideology. I would take it back to our ability, some years past, to be able to identify their cell phones and get into their cell phones in such a way that we also got into their heads, which drove them into the caves. And really diminished a lot of their otherwise robust activities. Was a successful effort. Now we have a global cyberoperations going on with i think by your numbers from a Previous Report i read well over 100,000 isis activities on twitter and other cyber activity day. Single the im interested in the healthy parameters that have been examined by the lawyers on this full might and in the warfare with isis and their subordinates that i think are necessary if i think we are going to defeat that ideology. And so im thinking in terms of if this Congress Might diminish, slowdown or shut down access to , this phone, it also means access to any other phone that they might be using. They would have a high degree of confidence that they can operate with a level of impunity in the cyber world out there. Do you have any comments that you would like to make on the implications that being locked out of an opportunity to unlock this phone might mean to the global war on terror that could be prosecuted in the next administration aggressively across the world so cyber warfare, and i would just add to that for the sake of enumerating them, financial warfare, educational warfare and human intelligence and the network that would be necessary, not just kinetic activity to defeat radical islamic terrorism . Dir. Comey thank you, mr. King. This conversation were having today and i hope will continue is really important for domestic Law Enforcement, but it has profound implications for our counterterrorism work. Since mr. Snowdens revelations, terrorist trade craft changed. And they moved immediately to encrypted apps for their communication and trying to find devices that were encrypted, wrapping their lives in encryption because they understand the power of encryption could there is no place we see this love of and Public Security safety that in fighting terrorism, especially isis. Because for the fbis responsibility which is here in the United States, every day were looking for needles in a haystack and increasingly the most dangerous needles go invisible to us because that is when isil moves them to an encrypted app and a judges order is irrelevant there. That is why this is such an urgent future of our work and has huge implications for Law Enforcement overwhelmingly, but it has profound implications in the fight against terrorism could rep. King do you get any signals that the American Public or the United States congress is contemplating some of the things that youve discussed here to the death that it would be a component in decisionmaking . Dir. Comey i dont know. I know everybodys interested in this and everybody, all thoughtful people, see both sides of this and are trying to figure out how to solve it practically. There is no it. There isnt a single it. Theres all different kinds of manifestations of this problem we call going dark. So what i see is, people of goodwill fighting over this. Court cases will not solve this for us. Rep. King let me suggest that ill just say i think its a known and a given that isis or isil is seeking a nuclear device. And pretty much said that publicly. Degree ofa high confidence that they were on the cusp of achieving such capability and perhaps a capability of delivering it, that became part of the american consciousness, do you think that would change the debate we are having a to hear today . Dir. Comey i do worry that its hard to have nuanced, complicated conversations like this in an emergency and in the wake of a disaster, which is why i think its so important that we have this conversation now because in the wake of something awful happening, it would be hard to talk about this in a thoughtful and nuanced way. What i welcome the chairman having this hearing and having further conversations about it. Rep. King i thank you, director. And i will just state that my view is that i want to protect the Constitutional Rights of the American People, and id like to have this framed in law to protect our Constitutional Rights. But i would like to have us consider how we might keep a nation safe in the face of this and how we might prosecute a global war against radical islam, even in the aftermath of a decision made by either a judge or United States congress coul. I thank you, mr. Chairman, and i yield back the balance of my time. Chairman thanksoodlatte the gentleman. The gentlewoman from california, ms. Bass, is recognized for five minutes. Rep. Bass thank you, mr. Chair, and thank you, director comey, for your time and your patience with us today. I had a town hall meeting in my district on sunday and a couple. F hundred people showed up and much to my surprise, this was a burning issue. And many of my constituents came to ask me questions and i told them that they could suggest some questions i could ask you and maybe i could send them a. Lip of your testimony coul basically in general, they had a , hard time believing i mean, they were not supportive. They dont want, you know, apple to comply. But they had a hard time believing that apple couldnt do this. How many other people have cracked iphones and have shared their findings with howto articles . Given that you described it not as a backdoor, but getting dogs, you know, away so that you can pick the lock, their question was, what other Intelligence Community agencies has the fbi worked with considering this at least 12 in the Government Agencies . L these how is it that you have not been able to call the dogs off and pick the lock . Dir. Comey actually, 16 other members of the u. S. Intelligence community. It pains me to say this, because i in a way we benefit from the myth that this is the product of maybe too Much Television coul. The only thing thats true on television is that we remain attractive people, but we do not have the capabilities they imagine us to have. If we could have done this quietly and privately, we would have done it. Right . This litigation is difficult. Its especially difficult as i said, but im here to tell you here and maybe tonight someone will call us and say i thought of something. Apple is very good at what it does. Its a Wonderful Company that. Akes wonderful products they have to set out to find a phone that cannot be opened. And they are darn near succeeding. I think with the 6 and beyond they will have succeeded. That doesnt make them bad people, that just poses a challenge for us that we are not yet up to meeting without intervention from courts. Rep. Bass since you can clone iphone contents to Compatible Hardware and test passwords on the clones without putting the original at risk, cant you use socalled brute force methods to get the passcode . Dir. Comey not with i think this is what mr. Issa was asking about. I think a lot of tech experts ask, why cant you mirror the phone in some way and then play with the mirror . For reasons i dont fully understand, not possible in this circumstance. So we do want to try and brute force the phone, that is the multiple guesses. But we need first well do that ourselves, but we need removed the auto Race Function and you delay between guesses function, which would take 10 years to guess it. If we have those removed, we can guess the phones password with our Computing Power in 26 minutes is what were told, because we have enormous Computing Power in the u. S. Government, but we need to bring to bear without the phone killing itself. Rep. Bass thank you. I yield back the balance of my time. Dir. Comey the chair recognizes the gentleman from idaho, mr. Labrador, for five minutes. Rep. Labrador thank you, mr. Chairman, thank you director for being here. Thank you for what youre doing. I know you have a very difficult job as you are trying to balance both security and privacy. I have a few questions. As you as you are looking at the laws that are in place like calea and fisa or the other different avenues that were talking about, something that concerns me is that this is very different than some of the examples that have been given here. For example, when you have when youre going into a home, if youre asking for a key, if you go to the landlord, the keys already made. And you can go to the landlord and say i have a warrant here in the key is made. Can you please give me a key for that . For the method of creating that key if the key does not exist . This is very different than that, would you agree . Dir. Comey yes. Exactly right. Theres a difference between, hey, landlord, you have this spare key. Judge directs you to give it to us. Hey, landlord, we need you to make a key for this lot. It extends to that. The government has a reasonable argument to be made that it does and should. On the other side, lawyers for apple argue it doesnt. Rep. Labrador but this goes even one step further. In this scenario, the landlord can create the key and the technology to create this key already exists. In the apple, that is not the case. They have never created the key that you are asking for. Is that correct . Dir. Comey i dont know whether that is correct or not. Rep. Labrador as far as theyre letting us know, theres no way for them as theyre telling it because if not, i think they would be violating the judges order. If they have the ability to do this, they would be violating the judges order could but they are telling us the ability does not exist. Is that correct . Dir. Comey i think thats right. I think obviously, their general counsels are very smart guys here, he can talk about this. But i think what theyre saying is we can do it, but we would have to sit at a keyboard and right code that does not exist. Whether theres a meaningful distinction between that and someone who already has a key legally, is something a judge will have to sort out. Rep. Labrador so what concerns me is the old legal maxim that you know, bad cases make bad law. This is clearly a bad case. We all want you to get access to this phone through legal means because maybe they would uncover some other problems that we have in the middle east. Maybe there is some evidence really lead useve th to take terrace downs. Down. Rorists he is dead and he is never given his code to somebody else. And im concerned that that as were looking down this road, what were doing is were opening the door for other other things that could actually be detrimental to our safety and security. For example, i think you have testified many times that we are getting hacked all the time. Isnt that correct . Dir. Comey yes. Rep. Labrador maybe one of the reasons that apple is refusing to do this, or or is hesitant to do Something Like this because they know that even they get hacked. When you create that key that does not exist at all right now, you are actually opening up every other phone that is out there coul. Do you do you see how that could be a concern . Dir. Comey i see the argument. The question the judge will have to decide is, is that a reasonable argument. Rep. Labrador you said that apple is highly professional and keeping secrets. Would you say the federal government has also very good people that are highly professional at keeping secrets . Dir. Comey parts of it. Rep. Labrador me, too. Learned thatave there has been a hacking incident at the irs. Are you familiar with that . Dir. Comey yes. Rep. Labrador thats what im concerned about. The moment that you open up that door, the the moment that you open up that key that doesnt currently exists is that you allow these hackers that are out there. And some of them are enemies that are trying to do is hard as harm, whether its economic home or physical harm. They are trying to get into your iphone or my iphone. And at some point thats why you have such a difficult job, is we have to balance that safety and security. Do you think that this capability that you are asking for can only be used pursuant to a warrant . Dir. Comey the capability that the judge has directed apple to provide . Rep. Labrador correct. Dir. Comey i think thats the way its thats the procedural posture of it theres a warrant, and the judge issued an order. Rep. Labrador thats how it is issued right now. But do you think that that can only be obtained through a warrant or are you seeking to obtain it later . Dir. Comey i dont know how we would, if its in apples possession, unless they voluntarily gave it to someone. Thered have to be judicial process. Rep. Labrador ive run out of time. Dir. Comey thank you. Rep. Goodlatte the chair thanks the gentleman, recognizes the gentleman from louisiana, mr. Richmond, for five minutes. Richmond thank you thank you, mr. Chairman. Before i start, id like to enter into the record two articles one is from the toronto star, titled encrypted and another one is from the baton rouge advocate, which says, the brittney mills murder case has put baton rouge in the middle of the National Cell phone debate. Thank you, mr. Chairman. And let me just say and, director comey, you have mentioned the brittney mills case a number of times. And i just want to paint the scenario for everyone in the room and put a face to it could this is brittney mills almost a eight months pregnant with her daughter. She was murdered in my district could she was eigh. She was eight months pregnant with her child at the time. Someone can to the door and killed her. A couple days later, her unborn child also died. And according to her family and her friends, she kept a very detailed diary in her phone. And her family, who are here today miss barbara mills, will you please stand . They would like the phone open because the District Attorney who is also here today can use that to attempt to find the murder who committed this crime. And i guess my question, as we balance privacy, Public Safety, and criminal justice that are we in danger of creating an underground criminal sanctuary for some very disturbed people and how do we balance that . Dir. Comey we are in danger of that could until these awesome devices and thats what makes it so painful theyre wonderful until this, there was no closet in america,in america, no garage in america, no basement in america that could not be entered with a judges order. We now live in a different world, and thats the point were trying to make here. Before we drift to a place where a whole lot of other families in incredible pain look at other District Attorneys say what you mean you cant . We have to talk about it because privacy is awesome, but stopping this kind of savagery and murder and pedophilia, and all the other things that hide in the dark spaces in American Life, is also incredibly important to us. Thats why this conversation matters so much. But its also why we have to talk to each other. There are no demons in this conversation. We care about the same things. But it is urgent and theres no more painful circumstance demonstrated them in the death of that beautiful woman and her baby coul. Rep. Richmond well, and and i do appreciate you saying we have to talk to each other, because just in the small time that i was able to put the representatives of apple and the District Attorney in the room, i think we made some progress and maybe we will get somewhere. But it is a a very difficult balancing act, and i think the people from apple are very wellintentioned and have some real concerns. But let me ask you this i took a congressional delegation trip over to the ukraine. And we when we landed our plane, we were on the runway, and our security advisers came on to the back and said, if you do not want your phone hacked and for people to have access to your text messages, your pictures, emails, and everything else, we advise you to powered phone off and leave it on the plane. And no one is in close enough proximity right now to do it, so if you need to make a call, make a call. But when we get closer to the terminal, you need to power that phoned phone down. So, does ukraine have Better Technology well, they were really worried about russian hackers. But does russia have that much of a Technology Advantage over us that they can get into my phone while i am on it and its in my possession and we cannot get into a phone that we have in our possession . Dir. Comey the difference and im im going to be careful about what i say in an open setting, is that some countries have different control over their infrastructure and require providers in their country to make accommodations that we do not require here to give them greater surveillance capabilities than we would ever imagine in United States. Thats the first thing. Second thing is, we are a rule of law country. The fbi is not cracking into your phone or listening to your communications, except under the rule of law and going to a judge. Those of the two big differences. But countries have capabilities, and in part based on accommodations that device makers and providers have made in those countries that are different than this country. Rep. Richmond thank you, mr. Chairman. I see my time has expired. Rep. Goodlatte the chair recognizes the gentlewoman from washington state, ms. Delbene, for five minutes. Rep. Delbene thank you, mr. Chair, and thank you, director comey, for being with us, and for all of your time. I worked my career in technology, on email and mobile communications, and constantly heard from customers both consumers and businesses and even the government to make sure that information was protected and that devices were secured. And in your testimony, you state that youre simply asking to ensure that you can continue to obtain electronic information and evidence, and you seem to be asking Technology Companies to freeze in place or revert back to systems that mightve been easier to access. But dont you think, in general that thats much an oversimplification of this issue . Because we all know that bad actors want to exploit vulnerabilities to break into any number of things, from a phone, a personal device, to our power grid. These things arent static. Theyre changing constantly, and theyre getting smarter every day. The bad actors are getting smarter every day, and we need to be smarter every day in terms of protection. So, in that type of environment, how would you expect a Technology Company not to continue to evolve their security measures to keep up with new threats that we see . Dir. Comey first of all, i would expect Security Companies and Technology Companies to continue to try and improve their security. Thats wise important that we talk about this. Its the fbis job and the congresses job. So i i dont put that on the companies. But the other thing that concerns me a little bit is this sense that, if we have a world where people comply with government words, it must be insecure. I dont buy that because there are lots of providers today of email service, of text service, who have highly secure systems, who, because of their Business Models, vision plaintext on their servers to comply with court orders. Ive not heard people say their systems are insecure. Business a different model to a lot of people may disagree with me, but i dont think its a technological problem. Its a Business Model problem. It gets away from this its impossible nonsense. 8 rep. Delbene but we know more and more, in fact were seeing were talking about phones today, but were talking about the growth on the internet of things of even more personal devices where security is more critical. Youre talking about the way the world works today and that is not the situation we are facing. We are seeing evolution everyday. These are d devices that are connected to networks. And that information might be someones Financial Information or personal information that if it is exploited would create a security issue itself. Dir. Comey i agree. Rep. Delbene so dont you believe that encryption has an Important Role to play in protecting security . Dir. Comey vital. Rep. Delbene so now weve talked about what role Congress Plays versus what role the courts would play. And youve kind of talked about both in different scenarios and that congress should play a role in their, but the court if theres ae Security Breach where someone breaks into a device and whether or not there is a concern that would be widely available. Yet, the tension isnt really between just privacy and security. Its between security and security, and protecting peoples information. So how view where do you think Congress Plays a role versus the courts when youve talked about both of them in your testimony today . Dir. Comey think the courts have a job to, in particular cases, interpret the laws that congress has passed throughout the history of this country, to try and decide that the government is seeking this, does that fit yo within the statute . That is the courts job and they are very good with it. The wider problem is this collision between privacy and security. Its very difficult to solve a case by case by case. We have to ask ourselves how do we want to govern ourselves . If you are a manufacturer provide security information and United States, what our expectations and demands of you . Its hard to me to see that being worked out on a common law basis, honestly. But its going to be because the issue is joined every single day in our Law Enforcement work if nobody else is involved. The courts will have to figure out. Rep. Delbene this this this isnt just an issue of u. S. Companies alone, because clearly theres access to technology that could be developed in other countries that will not have access to and that is widely available today and people can use. But also, then, it is important we have laws that are centuries and decades old that have not kept up with the way the world works today. And so it is very important that Congress Plays a role because of is the courts are going to interpret those laws and have no awareness of what is happening today , congressman to play a role to make sure the laws are uptodate and set a standard for the courts to follow. Thank you. I yield back, mr. Chair. Rep. Goodlatte the chair thanks the gentlewoman. And recognizes the gentleman from new york, mr. Jeffries. Rep. Jeffries thank you, mr. Chairman. And thank you, mr. Comey, for your presence here today. And as one of my colleagues mentioned, your candor and open dialogue and communication is much appreciated. You testified today that you dont question apples motives in connection with the San Bernardino case. Is that correct . Dir. Comey correct. And you also testified that there are no demons in this conversation. True . Dir. Comey correct. I hope not. Rep jeffries but the department of justice has questioned the companys motives in defending the privacy of the American People. Isnt that right . Dir. Comey i dont think they question their motives, in the sense that attributed sort of that theyre acting with evil intent or something. Rep. Jeffries in fact, in the motion to compel that you refer to, i believe the prosecutor said that apples current refusal to comply with the courts order, despite the technical feasibility to do so seems to be based on its public Brand Marketing strategies. Is that the statement you are referring to . Dir. Comey yes. And i think thats thats fair. I bet thats accurate. Apple has a legal obligation, because i used to be the general counsel of a public company, their goal is to maximize shareholder power could their job is not to worry about Public Safety. That is our job and all those who work in government. Rep. Jeffries William Bratton is the Police Commissioner of the new York City Police department. Is that right . Dir. Comey yes. Rep. Jeffries its the Largest Department in the country . Dir. Comey yes. Rep. Jeffries and hes one of the most respected Law Enforcement professionals in the country. Would you agree with that . Dir. Comey i agree with that very, very much. Rep. Jeffries now, at a february 18th press conference in new york city, he publicly accused apple of corporate irresponsibility. Are you familiar with that remark . Dir. Comey im not. Rep. Jeffries ok. Do you agree with that strident statement, that apple is engaging in corporate irresponsibility by vindicating its inaudible . Dir. Comey i dont know that bill said that, but im not going to characterize it that way. I dont think theyre acting irresponsibly. Rep. Jeffries fundamentally, as it relates to the position of those of us who are on the judiciary committee, as well as members in the house and in the senate, guardians guardians, that this is not part of this debate. Dir. Comey i hope not. I mean, i hope part of it is, and thats a voice to listen to. But they sell phones. They dont sell Civil Liberties. Rep. Jeffries this is about how it relates to our country, the Fourth Amendment of art our United States constitution. The rule of law, the legitimate centuriesold concern that as it relates to government overreach in the damage it can do. This is fundamentally a big picture debate about things that are very important and we are as a country. Correct . Dir. Comey i agree completely. Rep. Jeffries ok. Now, in terms of the technology thats available today, americans seem to have the opportunity to choose between privacy or unfettered access to data, which can reveal the far reaches of their life to a thirdparty, to our government, to a bad actor. Would you agree that theres an opportunity the technology is providing for americans to chew just privacy . Dir. Comey i dont agree with that framing because it sounds like youre framing as we either have privacy or we have unfettered access by bad actors. I dont accept that premise. Rep. Jeffries ok. So let me ask a few questions. One of the obstacles to unfettered access is the pass code. Correct . The pass code . Ir. Comey correcte rep. Jeffries the six digit passcode fo passcode. Dir. Comey i naturally quibble because im a lawyer, but im just stuck on unfettered. Rep. Jeffries ok, let me drop unfettered. Dir. Comey one of the obstacles to access to a device is the password. If you dont backup your system, you dont have access . If you do notdir. Comey back it up to the cloud, theres nothing that can be obtained a warrant. Rep. Jeffries with a phone being a race, that is a choice. Race. Ve to choose auto if you do not choose this, eventually your computer is powerful enough to get access to the data, correct . Dir. Comey i think thats right for the five seat. The folks from apple can tell you better. For the later models, its not a choice. Im reasonably confident its a choice for the five c. Rep. Jeffries my time is expired, but i think its important that as we frame this debate to understand that it is actually the american citizen that is choosing on at least three different occasions in ways the value of privacy and that is something we should respect as congress attempts to craft a solution. Rep. Goodlatte the the chair thanks the gentleman. And recognizes the gentleman from rhode island, mr. Cicilline, for five minutes. Rep. Cicilline thank you, mr. Chairman. Thank you, director comey, for your service to our country. Thank you for being here today and for the outstanding work of the men women at the fbi. We all, of course, acknowledge that incredible horrors of the San Bernardino attack. But i think in many ways what were struggling is, as ms. Delbene is security versus security. But this all make us less safe in the long term. And while it may achieve your objective in the short term in this particular case, the implications in terms of our own National Security and personal security pose greater dangers. That is a thought im struggling with. Thisreciated that you said is the hardest question of confronted because i think it is the hardest one. But the first thing i want to ask is this is different, would you agree, than all the examples that have been used about producing items in your custody. This is a different kind of warrant because its actually compelling a thirdparty to produce and create intellectual property which doesnt exist today. Dir. Comey i understand that to be apples argument. I dont know enough about the other possible comparisons to give you a thoughtful response. But yes, i understand that. Rep. Cicilline but i mean but its hard to even imagine how a court ultimately enforces that because you have to sort of get into the head of the engineers to figure out if they actually complied with what the Government Order is directing them to create. I mean, im not saying its not something youre not allowed to ask for, but it is different, it seems to me, than simply asking people to produce that which they are in possession of. Dir. Comey yeah, i see that. I mean, i heard someone earlier say theres a difference between a landlord that has a key in his pocket, you say youve got to give us the key and you do not have one, so go make one for that door. Rep. Cicilline not just go make develop a whole new technology and intellectual technology. Announce thate to this is different. , you havetion to that said repeatedly that government does not have the ability to do this already. There was a decision yesterday that a marina right the ordered as part of the record. He goes through and says the act is not apply and thats prohibited by omission. That, he goes on to say that the government argued in an unrelated case of the government actually has the ability to do this. Department of Homeland Security investigations they are in possession of technology to override the passcode security feature on the subject iphone to obtain the data. I think this is a very important question for me. Is it a case that the government does not have the ability, including the department of Homeland Security investigations , and other intelligence agencies to do what it is claimed necessary to access this information . Dir. Comey yes. I could be wrong, but i think the phone in the case from brooklyn is different. Maybe both the model and the operating system is different. Hearing the sound of my voice, if you have an idea, let us know. But we do not have that capability. Problem is we can get into that phone with our Computing Powers as they take off the auto a race and the delay between guesses function. We will get into that phone. Rep. Cicilline so do you agree, director comey, that if there is authority to be given to do what you are asking, that that authority has to come from congress . Dir. Comey no, i dont agree with that. Rep. Cicilline so where do you think the Authority Comes from . Dir. Comey well, the government has already asked the court and made the argument under the court that the all writs act vests in the judiciary the ability to order this release. Rep. Cicilline ok. So if the ruling made yesterday remains, which rejects the notion that the all writs act applies in that calea in fact is congressional intention on this and the fact that we do not act on this. Do you agree that congress is the only place that can authorize this . If so, what would you do . Because i can tell you for me, i calea it doesnt authorize is clear. It, its clear the all writs act doesnt. So there is authority, as the director of the fbi, what would your recommendation be that respond to what you see as your needs but also the National Security interests of our country . Dir. Comey im not prepared to make a recommendation, but i think i get your question now. If the judges are right that you cant use the all writs act for this relief, what should congress due to grant the relief . Im not prepared to tell you specifically what to do, but i think its something that congress will have to wrestle with. Rep. Cicilline i yield back. Dir. Comey the chair would ask unanimous consent that letters from the Computer Communications Industry Association dated february 29, a statement for the record from the president of the Fbi Agents Association and the letter dated the do or tournament on the mac and Civil Liberties american Civil Liberties union of the part of the record could rep. Goodlatte director comey, youve given us three hours oh, im sorry. Im jumping the gun here. The gentleman from california, mr. Peters, is recognized for five minutes. Rep. Peters i want to conclude by saying that a listen carefully to opening statement. I thought it was very constructive. You appreciate the two objectives that we have here is to both preserve privacy and deal with San Bernardino. Comment thatd the hard cases make bad law. The problem we see in terrorism now is the ones he and the tuesday that this is something we should all be concerned about. I hope that you and the panel to follow you will all be part of a constructive discussion to figure out a way to serve both objectives and that the lines will not be too hard drawn on either side so that we can do that. I appreciate, mr. Chairman, the chance to think director coming for being here and i look forward to the next panel. Rep. Goodlatte i go back. Director, youve donated three hours of your time to our efforts today, so we thank you for your participation for answering a multitude of questions. We are looking for answers. If you have more to add to the record later, we would welcome that as well. Thank you very much. Chairman would you entertain a unanimous consent while we are entertaining panels . Rep. Goodlatte i would. I would ask for unanimous consent that a letter i received from a constituent in the Technology Business concerning this case be placed in the record. We ask that when on the second panel please come forward and be seated. And now that mr. Sewall has been attention previously accorded to director coming, i would ask that the press move back so that we can begin the second panel. Was would not assume that not directed to miss landau. Rep. Goodlatte thank you. Our distinguished witnesses for todays second panel. If you would all please rise, i will begin by swearing you in. Of you swear that the testimony that you are about to give shopping the truth, the whole truth, and nothing but the truth so help you got . D . I do. Rep. Goodlatte let the record reflect that all witnesses responded in the affirmative. I will now introduce the witnesses. Pursue will is senior vice counsel ofnd general apple. He serves on apples legal team and serves on all legal matters, security go global and privacy. He was general counsel and Vice President of intel corporation. He received his bachelors degree from the university of lancaster and a jd from George Washington university. A directorandau is of Cyber Security policy, trained as aai computer scientist. Within Cyber Security policy, her work focuses specifically on medication issues. She earned a bachelors degree from princeton university, a masters from cornell university, and a phd from the Massachusetts Institute of technology. Our final witness cyrus vance junior is the District Attorney of york county. He is currently serving his second term as District Attorney after being reelected in 2013. He serves as cochair on sentencing. Previously, he worked in private practice and taught at Seattle University school of law. He is a graduate of Yale University in the Georgetown University law center. All the written statements will be entered into the record in their entirety and we ask that each of you summarize your testimony in five minutes or less. There is a timing light on the table. When the light switches from green to yellow, you have one minute to conclude your testimony. When the light turns red, thats it. Your time is up and we will begin with you, mr. Sewall. Thank you. Rep. Goodlatte make sure the microphone is on and pulled close. It is my pleasure to appear before you on behalf of apple. We appreciate the opportunity to be a part of the discussion of this important issue, which centers on the Civil Liberties that are the foundation of our country. Repeatell i want to something that we have said since the beginning that the victims and families of the San Bernardino attacks have our and we sympathies strongly agree that justice should be served and apple has most of the 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 give them all the information we had related to their investigation. We went beyond that by making apple engineers available to advise the fbi on a number of investigative alternatives. Now we find ourselves at the center of a very extraordinary circumstance. The fbi has asked the court to order us to give them something we do not have. To create an operating system that does not exist. The reason it doesnt exist is because it would be too dangerous. They are asking for a backdoor into the iphone, specifically to build Software Tool that can break the encryption system that protects personal information on every iphone. As we have told them and the amerco public, building that Software Tool would not affect just one iphone. It would weaken the security for all of them. Just last week, director coming agreed, and i think we heard the same here today, that the fbi would likely use this as president for other cases involving other phones. Weve heard from District Attorney vance, who has also said he absolute plans to use this tool on over 175 phones that he has in his possession. That this isree not about access to one iphone. The fbi is asking apple to weaken the security of our products. Hackers and cyber criminals can use this to wreck havoc on our privacy and personal safety. It would set a dangerous precedent for government intrusion into the privacy and safety of our citizens. Hundreds of millions of lawabiding Citizens Trust apple products with the most intimate details of their daily lives photos, private conversations, and information about a users location and the location of that users family and friends. Some of you may have an iphone in your pocket right now. If you think about it, theres probably more information stored on that device than a few 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 communication. These range from Online Banking and credit Card Transactions to the exchange of health care records, ideas that will change the world for the better, and can occasions between people. U. S. Government has spent tens of millions of dollars to the open Technology Fund and other u. S. Government programs to fund strong encryption, and the review group on intelligence can be in by president obama urged the u. S. Government to fully support and not in any way some, weaken, or make vulnerable generally commercial available software. Encryption is a good thing. We needed to keep people safe. You have been using our products for over a decade. Our customers data becomes more sophisticated, the tools that we need to use to defend against them needs to be stronger. Weakening encryption will only hurt consumers relying on apple to protect their personal information. Todays hearing is entitled American Security and privacy. We believe we can and must have both. Protecting our data with encryption and other methods preserves our privacy accuse people safe. Deserve and people honest conversation around the fbis current demand c. We want to put a limit on the technology that protects our data in the face of increasingly committed cyberattacks . Stop anye fbi or Apple Company from making the safest products they can make . Should the fbi have the right to tell a company to producing product it doesnt make . Discussionthat any should be made after a thoughtful and honest consideration of the facts. Decisionrtant, the should be made by you and your colleagues as representatives of the people rather than through warrant request on a 220yearold statute. Judge orenstein concluded yesterday, granting the fbis request with thoroughly undermined principles of the constitution. At apple, we are ready to have this conversation. The feedback that we are hearing indicates the American People to we hear that their families will be better protected if we can offer the best protection for their data at the same time our freedoms and liberties we all cherish will be more secure. I look forward to your questions. Rep. Goodlatte mr. Landau, welcome. Dr. Landau thank you very much for the opportunity to testify today. The fbi has pits of this battle as one of security versus privacy. As a number of members have observed, its about security versus security. We have a National Security threat going on and we have not solved the problem at all. What have smartphones got to do with it . Absolutely everything. Smartphones hold our phones and music and notes and calendars. Much of that information is sensitive, especially photos. They are increasingly wallets can give us access to all sorts of accounts. Many people store proprietary Business Information on their smartphones even though they know they shouldnt. Nsa will tell you that stealing login credentials is the most effective way into a system. It has been said so in a public talk months ago. They are poised to become authenticators to a wide variety of systems. There are already being used that way, including high place Government Agencies. District attorney vance will tell you that largescale data reaches have nothing to do with smartphone encryption, but thats not true. Times todays new york where there is a story on the ukrainian power grid. It started by the theft of login credentials of system operators. Solve the login authentication problem is smartphones of the best way forward to do it. But not if it is easy to get into the data of smartphones. The committee has already observed that there are many phones that will be that will go through the process of being unlocked, not just the one in San Bernardino. What that means for apple is that its going to develop a routine to do so. What happens when you sign a piece of code where you do it once . You do it occasionally. Its a whole ritual and there are very senior people involved. If youre dealing with phones daily being updated in order to solve Law Enforcement cases, then what happens when you develop a routine . A lowing webpage and level lowlevel employee to supervise it. It becomes a process that becomes easy to subvert. I have a lot of respect for apple security, but not to when it comes to building update for iphone could organize crime or. Of an hvache phone employee that will serve at the power plant. What we are going to do is decrease our security could that is the Security Risk coming from the request. If Law Enforcement wants Data Protection that allows them access under legal authorization, but in nsa colleague remarked to me that while his agency has the right to break into certain systems, no one guaranteed the right would be easy to do so. When you build a way and for not the owner of the data, you build it for someone to get in. Calea is a nightmare. If you ask the intelligence people, there are many ways from the sources to take advantages of the opening offered by Law Enforcement. Theead of embracing communication and Device Security we badly need, Law Enforcement is suppressing to preserve 20th century investigating techniques. Meanwhile, our enemies are using for Technology Desk toy Century Technology against the spirit you may recall that the nsa in the 1990s was going death to encrypted calls. They have improved technology. Need is Law Enforcement to develop 21st century capabilities for conducting surveillance. The fbi has excellent people and expertise. It is not at the skill level necessary. Rather than asking the industry to weaken protections, Law Enforcement must develop capabilities for conducting investigations themselves. They need an Investigative Center with agents with the understanding of technology. Because all phones are teamsers, there will be of researchers who understand various types of devices. They will need to know where technology is and where it will be in six months and in two to five years. Communications technology into the five year so they can develop surveillance technologies themselves. Expertise mean that the in house. The fbi can pursue a solution where they develop some of their own expertise and closely manage contractors to do some of the work. Pursues thebureau solution, it must develop modern state of our capabilities fo rather than weaken security. Your job is to help the fbi to develop such capabilities to be utilized by state or local Law Enforcement so they dont have the resources to develop that themselves and also fun that capability. That is the way forward that does not put National Security at risk. In labels Law Enforcement investigation while encouraging industry all can do to better security for devices. That is a winwin and where we should be going. Rep. Goodlatte thank you miss landau. Mr. Vance thank you, mr. Chairman, and ranking members of the House Committee for a loan me to speak today. On testify on behalf of the national District Attorneys association. Im very grateful for the opportunity to be here because much of the discussion in the prior panel and the comments by the other speakers here has been about the federal government and the issue of security and cybercrime in the federal context. It is important for all of us to recognize that steak and local state and local on forced agencies handled 95 of the criminal cases each year around the country. We have a very deep interest in the subject matter of this hearing today. Thank you for letting us participated apple and googles decision to engineer their mobile devices to the bulletproof has had a real effect on the traditional balance of Public Safety versus privacy under our Fourth Amendment jurisprudence. Agree with the comments of everyone here, including the many members of the house that we really need congress to help solve this problem for us. The flights are important that you are undertaken this effort , but by looking at this issue, their basic facts from the state law perspective that are very important in this debate but are not in dispute. Number one, as tim cook said in his open letter to his customers of apple of february 2016 this year, smartphones led by iphone have become an essential part of our lives. Nothing could be more true. We are all using cell phones for every aspect of our lives. Number two is that smartphones are also essential to criminals. Our Office Investigates and prosecutes a huge friday of cases from homicide to sex crimes to International Financial crime and including terrorism cases. Criminals in each of those cases you smartphones to share information, to plan and commit crimes, whether through text messages, photographs, or videos. Know that criminals the ios eight operating system is warranted proof. Criminals understand that this new operating system provides them with a cloak of secrecy and they are quite literally laughing at us. That theystounded have a means of communication totally secure from government reached i do not ask you to take my word for it,. From one lawfully recorded conversation from rikers island, an inmate talking about the ios eight encryption called it and im quoting a gift from god. Encryption apple provided on its mobile devices prior to ios eight, before october 2014, was represented to be both secure for its customers and importantly was a minimal to court authorized searches. We know this because apple told us this. Its iowaracterized seven operating system as the ultimate in privacy. It touted its proven encryption methods and assured its users that ios eight could be used in confidence with any personal or corporate environment. During the time when i was seven was the operating system, apple acknowledgede its help in investigating robberies, solving crimes, locating children, or helping to prevent suicide. Apples experience with ios even demonstrated that strong encryption and compliance with court orders is not mutually exclusive. It is headed profound impact on my office and others like it. My Office Published a white paper on Public Safety and encryption. There were 111 iphones in which we were locked out, having obtained search warrants for those devices. Months later when we submitted written testimony, the number was 175. Today, its 205, which represents more than one out of four of the approximately seven apple devices that have been analyzed by our offices own cyber lab since the introduction of iowas eight. The problem is not just in manhattan. Prosecutors in houston have been locked out more than 100 iphones. 46 in connecticut and 36 in chicago. Those are just a few of thousands of phones taken into evidence each year around the country. Centuries of jurisprudence that we have talked about today has held that no item, not a home, a file cabinet, is beyond the reach of a court order or search warrant. The warrant proof encryption today gives two very Large Companies legally functional control over the path to justice for victims of crime including who can be prosecuted and who may be exonerated. Our point, mr. Chairman, is that we believe this line being drawn between Public Safety and privacy is extremely important. Weaffecting our lives and believe that you should be drawing it and we ask you to address this problem quickly