Hurd: FBI should clarify why Apple's help is necessary

One of the leading voices of cybersecurity on Capitol Hill, Rep. Will Hurd (R-Texas) said he is concerned that FBI officials have not provided clarity on what exactly they need from Apple when it comes to the evolving debate of getting into the San Bernardino, Calif., shooter's iPhone.

"The FBI knows what applications are on that phone," Hurd told FCW in his Capitol Hill office on Feb 25. "The FBI has gotten backups to the iCloud, so text messages, emails, photos, any conversations on any social media application -- all that stuff they are able to get other ways. My fear is you are having the federal government tell a private sector company how they should build their widget. I have a problem with that. Ultimately, I have a problem with weakening encryption."

He added, "In this specific case, the FBI has not articulated what it is they are trying to find and how this is going to help their investigation. Because you already know everything that was potentially on that phone."

The FBI spelled out what some of what it hoped to learn from the phone in a Feb. 16 memorandum submitted to the U.S. District Court of the Central District of California. According to the memo, the iPhone that was used by San Bernardino killer Syed Farook was last updated Oct. 19, 2015, about six weeks before the Dec. 2 killings. Federal agents suspect that Farook disabled the automatic cloud backup system on the phone "to hide evidence," an indication that, "demonstrates that there may be relevant, critical communications and data around the time of the shooting that has thus far not been accessed." That data could include data on the killers' movements just before and just after the killings at a San Bernardino County facility, as well as information about whom Farook was in contact with in the run-up to the killings.

A federal judge was persuaded by the FBI to ordered Apple  to help the FBI break into Farook's device, by writing special software to get around the security features built into the iPhone 5C. These include a function that erases the data on the phone after multiple failed attempts to enter a passcode, and another function that introduces delays when a user tries to gain access multiple times. The features are in place to deflect the kind of "brute force" cryptographic attack on the passcode that the FBI is planning to attempt. Apple is challenging that court order

On Feb. 25, FBI Director James Comey and other intelligence officials testified before the House Intelligence Committee. Comey told lawmakers, "the San Bernardino litigation is not about us trying to send a message or establish some precedent." However at the same hearing, Comey allowed the final decision in the case, " will be instructive for other courts, and there may well be other cases that involve the same kind of phone and the same operating system."

Hurd argued that the debate must go beyond encryption.

"My point is you can protect civil liberties, you can protect digital infrastructure and you can chase bad guys all at the same time," he told FCW. "Those are not three mutually exclusive goals. And the only way you achieve all three goals at the same time is have rational civil conversations and don't have law enforcement and the private sector talking past one another."

Hurd is far from the only lawmaker who feels strongly about this debate. Rep. Ted Lieu (D-Calif.) on Feb. 23 asked FBI Director James Comey in a letter to withdraw the bureau's demand that Apple help unlock the iPhone.

"The bottom line is this: encryption is good for our national security, encryption is good for our economy," Hurd argued. He added that the men and women of the FBI are doing everything to keep the homeland safe, but at the end of the day on issues like this, "we have to define the problem very specifically."

Rep. Michael McCaul (R-Texas) and Sen. Mark Warner (D-Va.) will introduce legislation next week to create a commission of leaders from academia, law enforcement and technology firms to address some of those challenges.