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tv   Key Capitol Hill Hearings  CSPAN  March 1, 2016 8:00pm-12:01am EST

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polls closed an hour ago in vermont and virginia. 595 republican delegates up for grabs. 895 democratic delegates are at stake. early results hillary clinton looks like she will win in georgia and virginia. bernie sanders winning home state of vermont with 90% of the vote countied thus far, winning 90% of the vote. associated press saying donald trump will win in georgia. reminder too, get more election results, watch live presidential candidate speeches all of that happening now and all through the night on our companion network c-span. today in washington supreme
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court justices clarence thomas and ruth bader ginsburg delivered tribute to their colleague justice antonin scalia. that memorial service coming up next on c-span2. then february by director james comey and apple's bruce sewell testified about the government request to have apple unlock one encrypted iphones used by one of san bernardino shooters in the attack last december.
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>> supreme court justice antonin scalia was honored at memorial service by his colleagues, justices ruth bader ginsburg and clarence thomas. justice scalia appointed to high court by president ronald reagan in 1986, died at a texas ranch on february 13th. his service was held in washington at the mayflower hotel. >> good afternoon, welcome. thank you all for coming to this memorial for my father, justice scalia. our family is on in order, actually we're touched to be joined this afternoon by the chief justice of the united states, and all of my father's former colleagues from the court as well as many other distinguished guests and friends.
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this memorial is an opportunity to do two things we didn't have the chance to do at the beautiful funeral mass earlier this month. first you hear some words and tribute to my father's life and career and second for family and friends to spend some time together in the reception afterward. i couldn't begin to convey my thoughts about my father in a small amount of time i've allotted myself for this introduction. so, i thought i would limit myself to one recollection, which is dinner party my parent had years ago. the guests had just left and my father and i were standing in the front hallway. and, my father looked to me and he said, gene, that's why you need to work hard! so you can have friends like bob bork. [laughter] and, of course he was referring to judge bork. now i want to be clear very quickly that my point in telling you this story is not to
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underscore that he did not mention any of the people in this room today. [laughter] the point instead that he was referring to many who are here today and many other friends as well. this was a father telling his college age son why it was important to work hard, why it was important to succeed, and he wasn't talking about power. he was also not talking about material gain. although, that is less of a surprise since, as my mother used to occasionally point out, this man seemed to spend so much of his career looking for a job that would pay less than the one he had at the time. [laughter] so instead, my father was speaking to me of the rewards of friendship, collegiality and comradery. he was talking about people who could keep pace with him, educate him, humor him, challenge him, and press him to
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be better. people like my mother. he was speaking of people like his law clerks who were very important to my father and mother and are like family to us today. and he was speaking of people like those who have agreed to speak this afternoon. after a fair, a prayer by father scalia. i should say us he is fabro for father brother, to you he is father scalia. after prayer by father scalia we'll hear from justice thomas. then from judge silverman of the court of appeals here in washington who unfortunately will have to leave immediately afterwards to teach a law school class. we'll then hear from my sister catherine, from justice ginsburg are and from what of my father's former clerks, john manning, who now teaches at harvard law school and justice joan larson of the michigan supreme court who also has been a professor and practitioner.
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and then as so often is the case my sister mary will have the last word. [laughter] i should be careful. we'll have a reception immediately afterward. thank you again for coming this afternoon. [applause] >> if i could ask you all to please stand as we begin with prayer. almighty god, as we gather here to remember and honor your servant antonin scalia, we ask now your blessing. make us mindful that every good gift comes from you. that we see antonin's gifts as your light coming from your goodness and intended for your glory. so that in in honoring him we
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honor you his creator and redeemer. may antonin's example of public service unite all of us more closely in our pursuit of the common good for our nation and conscious also of his imperfections we ask you in your mercy to gather antonin quickly to yourself. you may resource in your presence. we pray this as you live and rein forever and ever, amen. >> for this i feel quite inadequate to the task. i find this very difficult. thank you for the prayer, father paul. maureen, our thoughts and prayers remain with you and your family. we pray that god will bring comfort and peace to you, to
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each of you. i was truly blessed to have had nino at the court when i became a member in 1991. and i was blessed many times over the almost 25 years that we served together. there were countless chats, walking to chambers, after a sitting. or after our conferences. those very brief visits usually involved more laughter than anything else. a joke. a funny word. a memory. there were many buck each other up visits. [laughter] too many to count.
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[laughter]. there were many checking on one another, after one of us had had an unpleasant experience daily. [laughter]. and there were calls to test an idea or work through a problem. i treasure the many times we had lunch with our law clerks and avs where he invariably had anchovie pizza. my clerk family and i will continue this tradition by always toasting nino as we gather, which is pretty regularly but no an chief v. pizza. -- anchovie pizza. i loved eggerness in his voice when he finish ad writing which he was particularly pleased. clarence, you have got to hear
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this. [laughter] it is really good. [laughter] whereupon he would deliver a dramatic reading. after fumbling with his computer for a while. [laughter] he worked hard to get things right. the broad principles and the details of law. grammar, sin tax, syntax and vocabulary. he was passionate about it all, and it was all important to him. none was beneath him and all deserved and received his full attention. in sports parlance he gave everything, 110%. for the past few years, my place on the bench has been between nino and our friend steve breyer.
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i loved the back and forth that took place. especially the passing of notes from steve to nino and nino to steve and whispered or muttered, or more appropriately, muttered commentary. when nino wanted to talk quietly with me about something, he would lean far back in his chair and say, in an almost endearing tone, brother clarence, what do you think? and of course he would offer his opinion of the on various matters. on one occasion he commented that in typical nino fashion that one much our opinions that had become an important precedent was, and i quote, just a horrible opinion. one of the worst ever. [laughter] i thought briefly about what he had said and whispered, nino,
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you wrote it. [laughter]. in a sense it is provedential and certainly not probable that we would serve together. i only knew of him, knew of i am but had never met him. he was from the northeast while i was from the southeast. he came from a house of educators and i from a household of almost no formal education. but we shared our catholic faith and our jesuit education as well as our sense of vocation. for different reasons and from different origins, we were heading in the same direction.
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so we walked together and worked together for a quarter century. and along the way we developed a unbreakable bond of deep trust and affection. many will fittingly, deservedly and rightfully say much about his intellect and jurisprudence but there is so much more to this good man. as one of our colleagues said the other day he filled the room. his passion, his sense of humor, were always on full display. and so was his love for maureen, his family, his church, our country, and our constitution. yesterday, i finished the biography of dietrich bonn hover. one of hitler's last acts before
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allies defeated germany was have this man of god executed. i thought of this memorial, this memorial gathering here today as i read bishop bell's eulogy of bonhoffer, with apologies i borrow from it liberally and quote lightsly. with him piece of my own life is carried to the grave, yet, yet our eyes are upon thee. we believe in the communion of saints, the forgiveness of sins, the resurrection, the resurrection of the body, and the life everlasting. we give thanks to god for the life, the suffering, the witness
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of our brother whose friends we were privileged to be. we pray for god to lead us too through his discipel ship from this world into his heavenly kingdom to fulfill in us that other word that dietrich bonhoffer. [speaking latin] while in god, confiding i can not but rejoice. god bless you, brother nino. got bless you. [applause] >> thank you, clarence.
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maureen, the scalia phamly, distinguished guests, a number of scholars and practicing lawyers have spoken at length about justice scalia's extraordinary impact on american jurisprudence. although i have been an admirer of his judicial opinions for his entire career, except for the rare occasions when he voted to over turn one of my opinions. [laughter]. there is no need for me to add to this out pouring of praise. instead i speak as one of his oldest friends. in 1974 after the notorious saturday night massacre, i came into the justice department as deputy attorney general under attorney general bill saxby, former attorney general. the department was largely cut off from the white house. i have said we were obligated to carry out the president's policy, except insofar as we
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were bound to support the special prosecutor's investigation of the president. surely that was the most extraordinary task of any justice department in american history. i found many of the senior appointees, presidential appointtees in the justice department in shock and understandably rather jumpy. most important assistant attorney general's position, certainly at that point was the one in charge of the office of legal counsel. incumbent was played out, having to navigate through the watergate reefs. he needed to be replaced. we wanted a brilliant lawyer with steel nerves. i was charged with finding a successor. a list of candidates was compiled. the first person i interviewed was antonin scalia. he occupied then a quasi-academic role as chairman of the administrative council.
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i have never been so impressed. i immediately offered him the post subject to the attorney general's approval. white house approval in those days was perfunctory give the president's weakness. actually, nino scalia wag nominated by richard nixon but appointed by the new president, guard ford. -- gerald ford. almost immediately nino was in a important task. stopped them moving the president's papers until we formally opined whether he owned them. nino establish ad brilliant opinion based on historical precedent, nixon's ownership and congress intervened. that led to extensive litigation before he was sustained. i was enormously impressed. then came a less serious legal issue but admittedly an intensely personal one. bill simon, the deputy secretary
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of treasury, enormously wealthy man, was designated the energy czar by president ford and he issued an order depriving all department deputies of their "car & driver." [laughter] i planned to resign because i was so financially strapped i couldn't afford to buy another car. [laughter]. to my as ton maisch meant, nino devised an exception for me. [laughter] he arranged for my car to have a police radio in the back and he obtain ad gun permit for my chauffeur. [laughter] that qualified my car as a law enforcement vehicle. [laughter] i could see he would be sound on the second amendment. [laughter]
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i immediately bee to think of him as a supreme court nominee. [laughter] in any event we became close friends. after we left government we both along with bob bork went to aei where we enjoyed brown-bag lunches with a group of distinguished, mostly conservative intellectuals and plot ad legal counter revolution. nino and i stayed in constant touch when he returned to academia at university of chicago law school and i went into the private sector. in 1980 as chairman i recruited him to join a committee of lawyers and law professors, supporting ronald reagan. as i recall my committee included everybody who ultimately became a judge. [laughter] after the election i recommended nino for various posts including the one he accepted, a seat on
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the d.c. circuit, ideally fitted for an administrative law expert. we often turned to each other for career advice. when he was subsequently offered the solicitor general post, i advised him strongly to turn it down. i contended that his choice, his chance of a supreme court nomination would be reduced if he took that post because of hot button social issues with which solicitor general would have to contend. he agreed. then a year later he returned the favor by talking me into joining him on the d.c. circuit. in 1986 i was thrilled when he came to my office to tell me privately, he was to be the supreme court nominee. he asked me to represent him, which i immediately agreed to do. he asked me for two reasons. he thought the likeliest issues involved the proper limits that should bind a judge's answer to
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doctrinal questions from senators. secondly of course, i was free. [laughter] for a brilliant judge nino was hopelessly impractical. as i was going through his papers i saw that at&t owed him a substantial amount of money. i was stunned. it turned out that he had done legal consulting work some years before he was a judge and had forgotten to send a bill. he asked me, so help me, he asked me, if he should clean up his accounts by sending the bill now? i told him sadly there would be rather awkward if at&t sent him money after his nomination. [laughter] then, before the hearings were even started he came to me concerned about what he thought might be an ethical question. senator byrd, the powerful west virginia senator, had invited nino to join him on the
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columbus day parade in charleston, long after the hearings would be over. i laughed. i told him that meant he would be confirmed regardless of hearing as first italian-american on the court. we teased each other constantly about our different ethnic backgrounds. he always tweeted me as a new yorker he understood jewish culture better than i did. [laughter]. which was true. [laughter] but i could be defensive. we were both invited to a small dinner party of harvard graduates to meet the new president of harvard neil rubenstein, who happened to be half italian and half-jewish. we were both concerned about the sweep of political correctness on the campuses. rubenstein spoke and answered questions for over an hour. afterwards as we left we agreed that he sounded good only about half the time.
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[laughter] then we got into a fierce argument with historical allusions as to whether the good half was italian or jewish. [laughter] recently i was drawn to new techniques developed by various organizations to explore one's genetic background. my wife bought a test for me and to my as ton meshment i turned out to be much more finnish than jewish. i told nino and he was anxious to take the same test. maureen was quite apprehensive. [laughter] she was worried that her irish soup superiority over italians would be jeopardized. i don't feel free to disclose the come complete scalia report, sure enough, nino had healthy dose of irish genes. although much of the advice we gave each other will remain
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private, one issue which discussed only past few days has become public. in 1996 as senator dole was winning the nomination battle, nino called me with rather momentous news. he had been approached by congressman boehner, apparently on senator dole's behalf, to inquire whether he would be willing to be the vice-presidential candidate. i knew that he loved his time on the court but he could not help but be flattered. and if dole were elected, who knew what a vice presidency could lead to. and it was a shrewd notion. nino as always, you all know had enormous charm. indeed, it had been thought when he was nominated his charm would be brought to cobble together conservative majorities on the court, much like william brennan forged different kind of majorities. that was illusion.
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nino cared more about judicial reasoning than judicial result. latter would follow the former. own a justice less concerned with reasoning can he or she bargain so effectively. although i told him i thought he would be an enormously effective politician i was brutally honest. i asked him if he wanted to return to law practice or teaching? that took him aback. i explained i was virtually certain dole would lose. declined the offer. [laughter] i should include a description of one of the most frightening days of my life. nino with two tickets to a baltimore orioles-yankees game invited me to join him. most human beings have inboard computer gene that prevents them from driving at high speed too close to the car in front of them. so there is sufficient room to stop. nino apparently lacked that gene. [laughter] by the time we reached the
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stadium i was sick in the stomach. i got nowhere asking him to back down. then we sat on the orioles section of the stadium in the midst of a group of rather large, fierce, beer-drinking oriole. he nino began bellowing with supporting encouragement for the yankees with loud talking at the umpires. one of the largest and ugliest ore real fans tapped him on the shoulder. he said if you don't shut up i will punch you in the nose. nino turned to me. should i tell him who nino was? i said, no. it was more likely to get us punched. [laughter] over the years we played poker
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together brought our shotguns together to a gun club, most notably every few months which lunched alone invariably over pizza and he had red wine. i had lunch with nino a few weeks ago at our new pizza joint. we discussed the present chaotic political situation. i wish i could have relayed our common views but of course it would be improcedure. so i will leave it to my memoirs. i hate to contemplate the end of those lunches. i will miss nino terribly. thank you. [applause]
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>> welcome family, friends, father paul. we are gathered here because of one man. [laughter] a man who is the only son bee gotten called father by many, revered by believers, disparaged by others, a man who espoused justice and truth. that man of course is antonin scalia. [laughter] since dad died my siblings and i have been compiling a list of daddisms, via email, shooting them off to each other as they pop into our heads. a couple daysing a when i lamented to my brother matthew i didn't know what i was thinking i said i could speak here today he encouragingly reminded me, you're not everybody else. you're a scalia. then in true scalia fashion he
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quickly followed up with another of our favorites, now don't screw it up. [laughter]. i hope dad will forgive me if i do screw it up. he might ask is this of general interest? [laughter]. yes, it is. [laughter]. as one of the minority in his 5-4 split of his nine children -- [laughter] i want to share some of what my father was to me. i was at the top half of the batting order, another nine member american institution, so for the first decades of my life as far as i was concerned dad was a justice department lawyer or a law professor who couldn't seem to hold down a job. [laughter] during those know maddic years, between jones day in cleveland and appeals court in washington we moved eight times. there werefy constant besides the likelihood there was a new baby on the way. [laughter] one constant was mass on sunday
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and yes, every holy day even the one that fell right in the middle of our beach vacation. and another negotiable family dinner every night. as committed as he was to work. dinner was a priority. if he could make the time we were expected to be there too. finally we had each other, which was the greatest gift. no matter where we lived, we were the scalia family and we knew that was something important. that's not to say it was easy being the daughter of nino scalia. he could be demanding. [laughter]. and at times impatient even. [laughter] he was a poor estimator of travel time. [laughter] never allowing quite enough time to get to that latin mass which was actually 45 minutes away not 30. he was a stickler of about
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words, pronounciation and grammar which wasn't always a fun time. i mean, it wasn't always fun. [laughter] cherry, cherry. marry, not mary. donkey, not donkey. as the son of an italian presser, dad's gift with words and language was in his blood. he still knew some german and could bluff his way through italian and latin of course but few know that he was fluent in another obscure language, the op language. he had learned it as a kid in queens and he taught it to us as children. being able to carry on a conversation in op was a source of family pride. also a good party trick. i was proud to say my name was --
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copaopopo. i cherish my american tall snapshots of today on all fours chasing us through the house as the tickle monster. a dollop of shaving cream on my nose when i went up to say good-bye before school. belting out my uncle rosed a kangaroo or mr. frog weren't acourting at piano, waving his arms at grill, commanding saturday hamburgers to be juicy. [laughter] reading fairytales, not disney's repugns he will or little golden book version of know white. he was originalist after all. so our bedtime stories were the brothers grimm. and oil boxed, cloth hardcover edition with grotesque illustrations. i will let the legal world discuss his judicial legacy but for me one decision stands alone above all others. that was the landmark decision
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of 1960, to marry maureen mccarthy. she was the perfect foil. anyone who knows mom knows that she is smart as, dare i say smarter than dad. i can tell you for sure if it was help with math homework you wouldn't go to him. [laughter] as he used to say, he did the constitution and she did everything else. [laughter] the day-to-day running of the business that was a large family fell to mom. but he never made her work seem any less important than his own, and he gave her credit for it. he used to jokingly say that she was a wonderful little woman and we all knew that deep down he meant it. packing up a huge household for each of those moves, making sacrifices to stretch a public service salary to feed and clothe a large family, fighting to raise us in the catholic faith and in an increasingly secular world.
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she supported him and stood by him, so he could focus on what they both saw as his vocation. i'm so grateful i was given the opportunity to travel with mom and dad a few years ago to galloway. first time with unexpected help i got to appreciate what i never noticed before as a kid, his zest for life going at full speed, trying to see it all and cram it all in and his partnership with mom. he taught a class each morning for the new england school of law. met us back at the house for a quick lunch. then we would hit the road. mom was the tour guide. she had the books with the turn down pages and post-it notes and read out our itinerary as he took the wheel. what old church are we going to see today, maureen ed ask? he would complain about the clouds we always seemed to be following. that this was a really out of the way place. that bikes shouldn't be allowed
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on the roads in ireland. and, it is best not to say what happened when he caught sight of the european union flag. [laughter] now, nino, mom would say. but here's the thing, he always ended up doing what she told him to. this is their schtick, it had taken me 40 some years to see it. he deferred to mom, respected her opinion and was happy following her lead, when he knew it was important to her. the scalia family is grateful for all the prayers, memories and recollections from all of you and from strangers shared over the last few weeks. i know that for all of us and especially for mom they have been a source of great comfort and consolation. and they have been an affirmation that his, was a life well-lived and he will be missed. [applause]
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>> in my fresh sure trove of memories -- treasure trove of memories, an early june morning, june 1996. i was about to leave the court
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to attend the second circuit judicial conference at lake george. justice scalia, entered, papers in his hand, tossing many pages on my desk, he said, ruth, this is the penultimate draft of my dissent in the vmi case. it's not yet in shape to circulate to the court. but i want to give you as much time as i can to answer it. on the plane to albany i read the dissent. it was a zinger. [laughter] of this will come as a wolf variety. i can't miss this page because it is too good.
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[laughter]. this is very strange. i have ever other page in here. you know it must be, it must be in, in the bag that i -- well anyway. it was, this comes as a wolf variety. and it took me to task on things large and small. among the disdainful footnotes -- [laughter]. the court refers to the university of virginia at charlottesville. there is no university of
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virginia at charlottesville. [laughter] there is only the university of virginia. [laughter] i wonder, professor christopher, would your dad say the same thing today? thinking about fitting responses consumed my weekend. but i was glad to have the extra days to adjust the courts opinion. my final draft was much improved, thanks to justice scalia's searing criticism. [laughter] another indelible memory, the day that the court decided bush v. gore, december 12th, 2000. i was in chambers, exhausted after the marathon review, review granted saturday, briefs filed sunday.
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oral argument on monday and opinions completed and released on tuesday. no surprise justice scalia and i were on opposite sides. the court did the right thing he had no doubt. i disagreed and explained why in a dissenting opinion. around 9:00 p.m. the telephone, my direct line rang. it was justice scalia. he didn't say, get over it. [laughter]. instead, he asked ruth, why i was still at the court? go home and take a hot bath. [laughter] good advice i promptly followed. among my favorite scalia stories, when president clinton was mulling over the first nomination, to the supreme court, justice scalia was asked
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if you were stranded on a desert island with a court come league, who would you prefer, larry tribe or mario cuomo. justice scalia, answered quickly and distinctly. ruth bader ginsburg. [laughter] [applause] and within days the president chose me. [laughter] among justice scalia's many talents, he was a discerning shopper. we were together in 1994, our driver took us to his friend's carpet shop. one rug after another was tossed on to the floor. leaving me without a clue which to choose. nino pointed to one he thought
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maureen would like for their beach house in north carolina. i picked the same design in a different color. it has worn very well. i once asked how could we be friends given our disagreement on lots of things. justice scalia answered, i attack ideas. i don't attack people. some very good people have some very bad ideas. [laughter] you can't separate the two. you have to get another day job. you don't want to be a judge at least not a judge on multimember panel. well-known illustration. justice scalia was very fond of justice brennan as justice brennan was of justice scalia. i will miss the challenges and the laugher he provokeed.
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his pungent, eminently quotable opinions, so clearly stated that his words never slipped from the reader's grasp. the roses he brought me on my birthday. the chance to appear with him once more as super luminaries at the opera. in his preface to the labretoo of the opera, scalia -- justice scalia described as peak of his days in d.c. an evening in 2009 at the opera ball at the british ambassador's residence when he joined two washington national opera tenors at the piano for a medley of songs. he called it the fame must three tenors performance. [laughter] -- famous three tenors performance.
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he was indeed a magnificent performer. how great to have a dear friend, captivating brilliance, high spirits and quick wit. in the words of a duet for tenor scalia and soprano ginsburg, we were different, yes, in our interpretation of written texts. yet one in our reference for the court and it's place in the u.s. system of governance. [applause]
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>> mrs. scalia, scalia family, fellow law clerks and distinguished guests. i was one of justice scalia's early law clerks. do today i will say a few words what it was like to clerk for the great man and a bit about his larger impact on the law. let me start with the clerkship. the scalia chambers were a tad raucous. [laughter] believe it or not. some people think of conservatives as formal and hierachical. justice scalia was anything but that. although he was, as he joked, a supreme justice -- [laughter] and we were but five youngsters fresh from law school. made it clear no arguement was out of bounds.
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at clerk conferences that pry seeded conferences of the court, it was basically a free-for-all. all the clerk was argue one another and with the justice strongly, passionately, often embarrassingly loudly and completely without fear. that we would offend the boss. while three of us were conservative and two were liberal our differences in those clerk conferences rarely split along political lines. that was not what the job was about. his job was to apply a legal methodology that he thought appropriate to a life tenured judge in a constitutional democracy. and our job was to help him do that that. period. there was an openness to all of this that made us feel perfectly safe to disagree, even sharply at times, with the justice. i'm not saying we didn't have
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our moments of doubt as anyone who clerked for him could tell you, sometimes you would be making a point and he would sort of make a face. [laughter] tilt his head, furrow his brow, and he'd stare into space for what seemed like abormally long time. it was disquieting but we soon figured out that was just his thinking face. and what it meant he was actually thinking hard about what we were saying. and about the only time that he overtly pulled rank when one of us got a little bit overinvested and he would have to say, hey, remember, it is my name that has to go on the opinion. especially with me for some reason, it was often followed by further observation and i'm not a nut.
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[laughter] the whole thing was unforgettable. i will shea the experience thank changed my life. his openness. his enthusiasm, his clarity, his playfulness, his common sense, his commitment to principle, all of this made even the blandest legal issue seem vivid and human and consequential. it is simply not narrowly to feel as strongly as he made us feel about legislative history, about the harmless hair record doctrine. about the borrowing of statutes of limitations. about the level of general alty of some ancient common law tradition. indeed i confess that it may not be perfectly healthy to feel as strongly as i do about the
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chevron doctrine to this very day. [laughter] but i'm working on it. [laughter] and that was justice scalia's gift. he took the boring, mundane, technical, everyday work of the law and showed us what was at stake for a constitutional democracy. maybe that is why he got so much done. think about statutes. very easy to forget how different the world was before justice scalia. how much the court leaned on legislative history. how readily the court enforced the spirit rather than the letter of the law. these practices lad gone on largely unquestioned for generations and in some cases for centuries. and in no time at all scalia changed the terms of the debate. showed it was all about the allocation of power.
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his resistance to legislative history was not empty formalism, it was about checking legislative power from congress and president to unrepresented committee, legislators, staff or lobbyists. his preference for letter over spirit was not just a better way of finding legislative intent. it was about protecting the american democracy against the salve aggrandizeing that judges should gloss over the come promices that are the staple of our legislative process and by extension of our democracy itself. all of this was really exhilarating. in fact, it's what inspired me to go into law teaching. in the misdemeanor times justice scalia visited harvard and in the years since i've been there, he inspired my students as will. he inspired them with his plainspokenness, his openness,
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his willing to take seriously the criticisms of legal novices he did not know and would not see again. his acknowledgement to total strangers that he did not always get things right, his sense ever humor, his generosity of spirit, and the simple power of his ideas. he was a force of nature and year after year i have had the experience of one or more of my one ls coming up to me, looking stricken and saying to me, professor manning, i'm a liberal. is it okay that i agree with justice scalia's opinions? [laughter] and i do my very best to reassure him, there is nothing wrong with you. [laughter] it's hard to believe he is no longer here but i cling confidentially to the thought that justice scalia will continue to teach students long
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into the future. that because of his clarity, his commitment to principle, and his courage his ideas will long outlive his days on earth. i myself will try to honor his memory by always remembering his lesson that one's commitment to principle is tested only when it hurts. justice scalia was a great justice. he was a wonderful husband, father, and grandfather. he was also a wonderful friend. he was kind, and funny and generous. i can never repay the debt i owe him. like some of us here today, i would not have the life i have, a life i love, had it not been for justice scalia. thank you. [applause]
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>> like professor manning i too am a former scalia clerk. i'm sure i speak for all the former clerks when i thank mrs. scalia and the rest of the scalia family for your incomparable generosity to us over the past few weeks. in the midst of your own incalcuable grief you recognized our mourning and graciously reached out and included us despite our numbers. it has eased our pain to be with you and be a part of the remembrance for our beloved boss and we thank you.
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the clerks have been talking over the past few weeks and many have commented on just how hard it was to stand vigil over the justice as he lay in repose in the great hall. alone with our thoughts as we stood on the cold marble floor, memories came flooding back. most of the clerks reported that the most challenging thing was not to keep from crying for that might have been forgiven, but instead, to keep from grinning. that is because the justice was fundamentally a happy man. and it is impossible to remember him without remembering the zeal with which he embraced life. even when things were not going well for him at the courts he was generally upbeat. he sang in his chambers.
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he whistled in the corridors. his laugh reverberated throughout the courtroom. his wit was sharp. he delighted in testing it against anyone who was foolish enough to try. he held us and himself to very high standards and he was sometimes impatient when we fell short of the mark. but he was always quick to forgive, to teach and to move on. i remember keenly the time i committed what in his chambers amounted to a mortal sin. i handed him a draft opinion which cited webster's third. [laughter] and this just one term after his fame must dictionary case, mci
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versus at&t, had made it clear for all the world in his estimation the third edition of webster's was no dictionary at all. [laughter] did you not read the opinions of this court before you came to join us here? , he boomed. displeased, but not quite angry. the prudent of course at that moment was to beg the opinion back, return to my chambers to expunge all references to webster's third and instead present him with a shining new draft which the oed displayed prominently. but panic must overtaken my brain's executive function. and instead, i foolishly tried an excuse. uh, yes, justice, i said.
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i remembered that you had strong views about dictionaries. it's just that i couldn't which one it was that you didn't like. [laughter] and so, i made sure to only work off the one you keep on display in your front office. [laughter] his eyebrows rose. what momentarily flashed as anger in his eyes immediately softened into disbelief. [laughter] it was no longer about me or the opinion. but about the prospect that that blasphemous book could be residing in his front office. [laughter]. i could see it thinking. it could not be so. he rose and walked to the dictionary stand, taking the
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open pages of the book in his hand, he proceeded in painstakingly slow fashion to slip the cover. and then thunk, the front of the book met the back. he glanced down at the cover, and thin up at me. i dared for a nanosecond to feel redeemed, even victorious. [laughter] and then without a moment lost he quickly regained the advantage. this, my dear, he said, is but a trap laid for the unawarery. [laughter]. . .
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we each have our favorite grammatical lesson, never use intact as a verb because it must precede adjourned, a conditioner requiring the subjunctive. ones that we all try to emulate, so many have said that when they write they still right for him which has been my own experience.
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as a struggle write my own 1st opinion i was nearly paralyzed and thus it leads me in a roundabout fashion, a story i meant to tell a justice task when he might be in chambers. the day slipped away. for monday come i thought. and then monday never came. as a new justice i have been
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making the rounds introducing myself to the people of the state speaking to small groups in church basements and libraries in court houses and twice in the weeks before his passing the most extraordinary thing happened come on i got to the part of my bio or i say, and then i clicked for justice scalia members of the audience spontaneously burst into applause. not groups of lawyers are judges but ordinary michiganders. the 1st time this happened i admit i was startled. most people cannot name a supreme court justice, fewer still have formed an opinion. i said as much and that i would be sure to pass enthusiasm along. he would like to here that come i said.
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and then i went on with remarks. at the end of my speech a member of the audience stuck up his hand, who did you say you clerked for again? all right,right, i thought to myself, did this guy walking late? but answered, justice deleo. this time most of the crowd rose to their feet and gave him a standing ovation. the gentleman who had stuck up his hand thing commented, we just wanted the chance to do that for him again. , me too. [applause]
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>> they put me last. only because i'm the middle of the nine. they generously gave me the opportunity to tell you that for the closing reception will return to the state and these terms. so i want to thank you for being here. kind words and sympathy must especially her prayers. they have been many remarks place it in the framework of god's plan and mercy.
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particularly during this year which pope francis has named the year of mercy. but when we say that his faith was important some may understand that to mean he was catholic and went to church. we never missed sunday mass unless we were sick in which case we had better plan on staying in that bed for the whole day. and as a family we drove however far was necessary to find what dad considered an appropriate liturgy. sundays in chicago were especially adventurous. dad drove us 30 minutes to a city church led by@priests whose actions were so thick i never knew whenever speaking english or latin.
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we could tell stories about this as part of strict upbringing but what that did was give us a framework of obedience and instill in us and acceptance of the basic obligations we gave her. a deeply personal experience built on centuries of tradition and history rich with meaning. faith was also the intellectual exercise of explaining the teachings through reason, frequent concert -- conversations about sermons and why the church taught certain things and why the teachings made sense for mankind, why we could understand them as truth. in the many stories that have been published or shared i have continued to grow in my understanding of my father and in his daily exercise of god's love which is what mercy is.
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his ability to form deep, lifelong friendships, generosity and humility and reaching out to others, to strangers, to people from all walks of life and the unbelievable outpouring of respect and affection for people throughout the country because of what he symbolized to them. the events of the last two weeks have been physically and emotionally exhausting, the procession of thousands of americans brought many great consolation. we considered a small, private, catholic mass because that is what dad
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would have wanted. since when do we care what dad wants. he would not want us to change our way of doing things. as a family wea family we recognize the fence -- the final opportunity should be shared with the large number of friends and faithful. a gift to many who continue to respond. i have learned so much. the great mercy we have been given. grow in a new understanding to the words and memories of others some of whom have expressed this so beautifully. it is that and also a source of grace and opportunity to
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grow in faith. thank you. [applause] [applause] [inaudible conversations]
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[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]
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[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]
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[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] >> it is super tuesday with 12 states holding primaries or caucuses.
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projecting hillary clinton winning the texas democratic primary just in from nbc. [inaudible conversations] and a look, hillary clinton just wrapped up speaking to her supporters in miami on live coverage. road to the white house coverage continues. looking at some of the results this evening. post closing around the country. he showed you the tweet about hillary clinton winning in texas road to the
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white house coverage continues on c-span. >> i would go here, to get the the candidates about social security and how they are planning on saving it. and if so what they are going to do to save it. >> i feel like it is important to get out and vote because the only way we can voice opinions. >> the head of the fbi testified. the fbi and apple are in a legal battle.
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>> we call the members of the media taking thousand pictures here to please clear a side so that we can begin the hearing. the judiciary committee will come to order. we welcome everyone to this
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afternoon's hearing on the encryption tight rope balancing american security and privacy, andprivacy, and i will begin by recognizing myself for helping statement. encryption is a good thing. our economic and military security encryption must play an ever-increasing
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role, and accompanies the development. a topic that may sound arcane far-reaching and lasting consequences. enabling robust public safety. particularly the wiretap, electronic communication and foreign intelligence surveillance act attempting
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to balance a valuable technological tool and injures the free-throw. nevertheless, as encryption has become a ubiquitous technique historically used
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to ensure a fair and impartial evaluation of the legal process. how do we deploy ever stronger, more effective encryption without unduly preventing lawful access to communication of criminals and terrorists intent on doing us harm which now seems like a perennial question which is challenges us for years. in fact, i led congressional efforts to ensure encryption
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technology and that the government could not automatically demand a backdoora backdoor key to encryption technology enabling the us encryption market to thrive and produce effective encryption technologies for legitimate actors rather than see the market had completely overseas companies that do not have to comply with basic protections. however, it is also true this technology has been a devious tulip malefactors. adoption of the two from your communities outpacing law enforcement capability to access communication legitimate criminal and national security negotiations. investigators recovered a cell phone used by the terrors possible for the attack. the federal judge ordered apple to provide a
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reasonable technical assistance raising both constitutional and statutory objections to the magistrate order. this particular case has some unique factors and as such may not be an ideal case upon which to set precedent. just yesterday a magistrate judge ruled it is clear they illustrate the complete -- competing interests a play,
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one that is too complex to be left to the court and must be answered by congress. sworn duty this body holds its own constitutional prerogatives and duties. so as to protect privacy, help keep safe and prevent crime and terrorist attacks. and continue to find new ways to bring to justice criminals and terrorists. miwa to fund we must find a way for physic cool security not to be at odds with information security. secure services to keep customer safe.
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the question is not whether or not encryption is essential. it is. when enforcing the law. alec forward to hearing from our distinguished witnesses as a committee continues its oversight. itit is now my pleasure to recognize the ranking member of the committee. >> thank you, chairman. members of the committee, distinguished guests, ii want to associate myself with your comments about jurisdiction. it is not an accident the house judiciary committee is
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that a primary jurisdiction with respect to the legal architecture of government surveillance. in times of heightened tension more than it hinders
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any agency in a given case. the national security council has concluded that the benefits to privacy, civil liberty, cyber security gained from encryption outweigh the broader risk created a weakening encryption, and director call me himself has put it plainly.
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universal strong encryption will protect all of us, innovation, private thoughts and so many other things of value from thieves of all kinds. we will all have lockboxes in our lives that only we can open and in which we can store all that is valuable. there are many good things about this. now for years despite what we know about the benefits of encryption the department of justice and the federal bureau of investigation have urges committee to give the authority to mandate that companies create backdoors into secure products. i have been reluctant to support this idea for a number of reasons, technical
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experts have warned us that it is impossible to intentionally introduce flaws into secure product, often called backdoors, but only law enforcement can export to the exclusion of terrorists and cyber criminals. the tech companies have warned us that it would cost millions of dollars to implement and would place them at a competitive disadvantagea competitive disadvantage around the world. the national security experts have warned us that terrorists and other criminals will simply resort to other tools entirely outside the reach of law enforcement and intelligence agencies, and i accept that
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reasonable people can disagree with me on each of these peemack's. but what concerns me, mr. chairman, is that chairman, is that in the middle of an ongoing congressional debate on this subject, the federal bureau of investigation would ask a federal magistrate to give them the special access to secure product that this committee, this congress, and the administration have so far refused to provide. why has the government taken this step and forced the issue? i suspect that part of that answer lies in an e-mail obtained by the "washington post" and reported to the public last september. in it, a senior lawyer in the intelligence community rights, although the legislative environment for encryption is hostile, it
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contains in the event of a terrorist attack or criminal event strong encryption that can be shown to have hindered law enforcement. he enforcement. he concluded that there is value in keeping options open for such a situation. i am deeply concerned by this cynical mindset. and i wouldi would be deeply disappointed if it turns out that the government is found to be exploiting a national tragedy to pursue a change ina change in law. i also have doubts about the wisdom of applying the aldrich act enacted in 1789, codified in 1911 and last
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applied to a communication provider by the supreme court in 1977 to a profound question about privacy and moderate computing in 2016. i fear that pursuing the serious and complex issue through the awkward use of an inept statue was not and is not the best course of action. and i am not alone in this view. yesterday in the eastern district of new york a federal judge denied a motion to order apple to unlock an iphone under circumstances similar to those in san bernardino. the court found that the all writs act as construed by government would confer on the court and overbroad authority to override individual autonomy.
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however, nothing in the government's argument suggests a principal limit on how far a court may go and requiring aa person or company to violate the most deeply rooted values. we could say the same about the fbi request in california. the government's assertion of power is without limiting principle and likely to have sweeping consequences. whether or not we pretend that the request is limited to just this device or just this one case, this committee and not the courts is the appropriate place to consider consequences, even if the dialog does not yield the results desired by some in the law enforcement committee.
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i am grateful we are having this conversation today. >> if you would please rise i will begin by swearing un. i we will now begin by introducing our 1st distinguished witnesses today.
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began his career as assistant united states atty. for the southern district of new york and the eastern district of virginia. hevirginia. he returned to new york to become the united states attorney. appointed deputy attorney general under the united states atty. gen. john ashcroft from a graduate of the college of william and mary and the university of chicago law school. welcome. i ask that you summarize your testimony into five minutes, and we have the timing light you are well familiar with on the table. >> thank you so much. how to balance the privacy we shall treasure that comes to us through the technology we love and she public safety which we treasure. i worry we have been talking past each other.
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fair minded, but these are the things i believe to be true. the logic of encryption will bring us to a place where things are entirely private. and no one can look at our stuff, read our documents, things we things we file away without agreement. that is the 1st. the 2nd, there is a lot of good. all of us can keep private and protected from thieves
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of all kind the things that matter most. there is a lot to love. the 3rd thing is that there are costs. public safety has depended in large measure on the ability of law enforcement agents going to court and obtaining warrants to look and storage areas or apartments or listen with appropriate predication oversight to conversations, the balance in order liberty, sometimes people's stuff canpeople's stuff can be looked at but only with predication or oversight approval. these two things are
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increasingly international security for. we see it in the efforts to reach into this country and task the killing of innocents which is a huge feature of national security work because even with a court order what we get is unreadable. to use a technical term, it is gobbledygook. we also see it and criminal work. a pregnant woman was killed and her mom said she kept a diary but it is on her phone which is locked. most recently in prominently we see it in san bernardi know, to terrorists killed
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14 and wounded 22 others to they smashed beyond use in the left -- the 3rd was left unlocked. it is important that it is a live investigation but they try to use lawful tools which is what you see happening in san bernardino. the san bernardino case is about that case highlighting the broader issue and will be looked upon by other judges and litigants, but it is about the case. is there someone else and other clues? the fbi's job is limited,
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investigate cases and use tools that are lawful and appropriate. the tools you are counting on are becoming less and less effective. the fbi is not some alien force. our job is to tell people there is a problem. i don't know the answer. law enforcement can do his job well enough for it is
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something we have to find a better way, i don't know. i am grateful for the forum, theforum, the conversation. there are no demons in this debate. you have good people who see the world through different lenses and care about the same things, companies about public safety, fbi about innovation and privacy. stealing innovation, secrets. we care about the same things and should make this an easier conversation. >> thank you and we will proceed with questions for the witness and now begin by recognizing myself.
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>> quite a bit of debate on the all writs act which most people had never heard of until last week or so. being used to try to compel apple to bypass also erase functions, characterized as an antiquated statute never intended to empower courts to require a third-party toa third-party to develop new technology. how do you respond to that characterization? is it limited to the circumstances in which congress has imposed statutory duties on a third-party. >> a smile as old or older. former federal prosecutors.
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one that congress passed this is a problem we are seeing all over the country. >> in its brief apple argued a provision prohibits the magistrate from ordering it to design a means to override the auto erase functions. just yesterday a magistrate upheld that argument. >> i have not read the decision to understand the
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basic contours. this is about data addressed, butaddressed, but it is the kind of thing that judges do. we will get to a place where we have the court with an understanding of its reach. >> that won't be a one-time request. correct? >> certainly not. >> it will set a precedent. and any other law enforcement agency to seek the same assistance. potentially useful to other courts.
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having talked to experts there are technical limitations given how phones have changed but other courts and prosecutors and lawyers will look for guidance or to try to distinguish. >> that technology once developed, how confident are you that what you are requesting which is the creation of a key, code, how confident are you that it will remain secure and allow other customers of apple, how confident are you that it will not fall into the wrong hands.
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>> i here folks talk about keys and backdoors. i do not see that this way. we are asking apple to take the vicious guard dog away. the later phones, there are not doors, so there is not going to be, can you take the dark dark away. i have faith in the company's ability to secure information. they are very good at protecting intimate -- information and innovation. >> thank you very much. >> thank you and welcome to the forum, a regular visitor to the judiciary committee. it has been suggested that
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apple has no interest in helping law enforcement in any criminal case and that the company cares more about marketing that investigating a terrorist attack. in your view, are companies like apple generally cooperative? a company with appropriate legal process. they want to be helpful if it comes to public safety.
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we will go to the judge. >> still reluctant to speak about how you success in this case might set a precedent for future action. this may guide how other courts handle similar requests. could you elaborate please? >> first of all, this case is about this case. i worry very much about the pain to the victims when they see this matter becoming a vehicle for broader conversation. this is about that case. my wife is a great expression.
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his -- it is not about you. it is not about anything other than trying to do a competent investigation in an ongoing active case. any decision in any forum will be potentially presidential in some other form. the government lost the case in brooklyn and could in san bernardino. that is just the way that the law works. >> bully fbi return to the courts to demand assistance and unlocking secure devices? >> potentially yes.
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>> this case will set some precedent and you will have won the authority to access encrypted devices. given that congress has explicitly denied you the authority so far, can you appreciate our frustration that this case appears to be the more than an end run around this committee? >> i really cannot. i do not recall aa time when i have asked for a particular legislative fix. horrific attack in san
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bernardino. we think it is a reasonable argument to direct the company to open the phone. i can understand your frustration because he goes beyond this case. >> i think the director. >> without objection. >> thank you. i happen to be a graduate of the college of william and mary. anything nice you would like to say?
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>> i could tell there was a glow coming from your seat explained by your being a member of the tribe. i actually met my wife there. >> to members. this is about electronic data security. >> the chair is happy to extend additional time. >> i appreciate the chairman. and as is indicated, this is about electronic data security or keeping our stuff online
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private. it may seem off-topic, but the fbi general counsel acknowledged that the fbi is working on matters related to hillary clinton's use of a private email server in the white house press secretary stated some officials had said that hillary clinton is not a target and it is not trending in that direction. the pres.direction. the president then weighed in commenting that he saw no national security implication. is there anything that you can tell us as to whether this matter might be wrapped up? >> we do not talk about investigations. i am close to the investigation to ensure it
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is done independently, confidently but i cannot give give you more details. >> i understand and appreciate that. let me move on. if apple chose to comply maybe it does have the technical expertise and time to create such a vulnerability. what about a small business? would such a mandate with four or five or six employees be a huge burden on the small business? >> it might be which is one of the factors that courts consider, the burden to the private actor. it would take time and money which is a reason we should not be compelled.
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>> thank you. seven out of ten new jobs think we should consider them. in his testimony the e-mail privacy act the assistant special agent in charge of the tennessee bureau of investigations voiced frustration with increasing technological capabilities of criminals and not criminals rather than trying to arguably infringe upon the 4th amendment right of all americans, what if
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possible to better train law enforcement officers in the coffin keep up with changing morals? >> there is no doubt we must continue to invest in training. the problem is all of our lives are all these devices. all of criminals and pedophiles and terrorists lives are on these devices. if even a judge cannot order access that is a big problem. so that we cannot quite train around. >> around. >> thank you. let me conclude with go tribe. >> thank you. among minor accomplishments, also a graduate of william and mary.
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we are all certainly condemning the terrorist attack in san bernardino and hearts go out to the families and victims. you use the usa freedom act to track phone calls and investigate everyone this book two. the fbi has done a great job already. it is my understanding that the attack in san bernardino was not planned or coordinated by isi s. >> so far as we know, correct. >> eliminated? >> any evidence. >> we have not. >> okay.
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>> now, given those facts no evidence of coordination the investigator sees, reaches out, provides information the same day and the next day san bernardino county change the password and did so without consulting apple
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at the instruction or suggestion of the fbi, and changing the password for close the ability for an automatic backup that would've allowed an apple to provide this information and thus necessitating the 1st was the application to the court that you made and we are discussing today. in other words, if the fbi had not instructed san bernardino the change the password all of this would be unnecessary and you would have the information. so why did you do that. >> i want to choose my words very, very carefully. i said there is no evidence from overseas. this is alive investigation. it is not over. second, as i understand, there was a mistake made for the county that made it impossible later to cause
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the phone to backup. experts have told me we would still be in litigation because there is no way we would have gotten everything off of the phone from aa backup. i have to take them at their word. >> the 2nd part of my question. it was not until almost 50 days later given the allegedly critical nature why did it take the fbi 50 days to go to court? >> a lot of conversations going on to figure out if there was a waya way to do it short of having to go to court. ..
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that they had to put backdoors if we were going to -- with all the appropriate, not appropriate, with all the concomitants surrenders to privacy and et cetera, they can get around that. >> the reason i'm hesitating is because with data in motion and data at rest, the bad guys couldn't make the phone but they could always find a device that was strongly encrypted. what happened when they split from available encryption?
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>> couldn't they generally do that? >> they could say i love this american device but i worry about a judge ordering access so i will buy this phone from a nordic country that's different in some way. that could happen. i have a hard time seeing it happen a lot, but it could happen. >> my time has expired. >> general gentleman i'd like to ask the documents be placed into the record at this time. like to have the consent that patent 024732, patent 27353 and additionally a copy of the usa today that's indicted they back apple on iphone. additionally from science and technology, an article that says
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department of homeland security awards 2.2 million 2 million to malibu company for mobile security research and encryption proof, unbreakable unbreakable phone. additionally, and lastly, the article in political today on the new york judges ruling in favor of apple. >> without objection they will all be made part of the record. >> thank you mr. chairman. >> thank you mr. chairman. justice scalia said, he said best what i'm going to quote almost 30 years ago in california, the hicks, in which he said, there is nothing new in the realization that the constitution sometimes insulates the criminality of a few in order to protect the privacy of all of us.
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i can that stands of a viewpoint that i have to balance when asking questions. as i understand the case, and there are a lot of very experienced people and lawyers that know about this, but what i in the stand is you in the case of apple in california are demanding, through a court order, that apple invent something. fair to take us right that they have to invent something. if true, then my first question to you is, the fbi is a premier long enforcement organization with laboratories that are second to none in the world. are you testifying today that you and/or contractors that you employ could not achieve this without demanding an unwilling partner do it. >> correct. >> you do so because you have researched this extensively? >> yes we have worked very, very hard on this. we're never going to give up.
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>> did you receive the source code? did you demand the source code from apple question and. >> did we asked them for their source code? not that i'm aware of. >> you couldn't handle software person source code and sake can you modify this to do what we want if you didn't have the source code. who did you go to, if you can tell us, that you consider an expert on writing source code changes that you want apple to do for you, you want them to invented. who did you go to? >> i'm not sure i follow the question. >> well, you no, i'm, i'm going to assume that the burden of apple is ask. before you get to the burden of apple doing something it doesn't want to do because it's not in its economic best interest and they said they have real ethical beliefs that you are asking them to do something wrong, sort sort of their moral fiber, but you are asking to do something and there's a burden. they have to invent it. i'm asking you, have you fully
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viewed the burden to the government? we spent $4.2 trillion every year and you have a multi- million-dollar budget. is the burden so high on you that you could not defeat this product without getting this with source code and changing it? >> we wouldn't be litigating if we could. we have engaged all parts of the u.s. government. does anyone have a way, short of asking apple to do it, with a 5c running ios nine to do this and we do not. >> let's go through the 5c running ios nine. does the 5c have a nonvolatile memory memory in which all the encrypted data and the switches for the phone settings are all located in that encrypted data? >> i don't know. >> well, it does. take my word for it for now. so that means you can in fact
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removed from the phone all of its memory, all of its nonvolatile memory, the disk drive if you will, and set it over here and have a true copy of it that you could conduct infinite number of attacks on, let's assume that you can make an infinite number of copies once you make one copy. >> i have no idea. >> well let's go through what you ask. i'm doing this because. >> it appears you don't understand the disk drive at least from my questions. if there's only a memory and that memory, that nonvolatile memory sits here and there is a chip in the chip does have an encryption code that was burned into it and you can make 10,000 copies of of this chip, this non- volatile memory hard drive,
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then you can perform as many attacks on as you want on it. but you've asked apple to defeat the finger code so you can attack it automatically so you don't have to punch in code. you've asked them to eliminate the ten and destroyed. but you haven't, as far as i no, asked them okay, if we make 1000 copies make a thousand copies or 2000 copies of this and we put it with the chip and we run five tries, 00 through 04 and throw and throw that image away and put in another one and do that 2000 times, what we have done that, what we have tried all to an thousand possible combinations in a matter of hours? if you haven't asked that question, the question is how can you come before this committee and before a federal judge and demand that somebody else and then something if you can't answer the questions that your people have tried this. >> i'm the director of the fbi. if i could answer that question there would be something dysfunctional in my leadership.
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>> i only ask of your people have done these things. i didn't ask you if that would work. i don't know if it would work. i asked you who did you go to or did you get the source code, have you asked these questions because you're expecting somebody to obey in order to do something they don't want to do and you haven't even figured out whether you could do it yourself. you just told us we can't do it, but you didn't ask for the source code and you didn't ask the questions i asked today asked today and i'm just a guy. >> your time has expired. you are permitted to answer the question. >> i did not ask the question you are asking me today and i'm not sure i fully understand the questions. i have reasonable confidence, i have high confidence that all elements of the u.s. government have focused on this problem and have had great conversation with apple. apple has never suggested to us there's another way to do it other than what they been asked to do. it could be when the apple representatives testify you can ask him and will have some great breakthrough, but i don't think so. i have been open to suggestion.
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maybe this is mirroring that you're talking about. i'm hoping my folks that are watching this and if you've said something that makes sense to them we will jump on it and i will let you know. >> they recognize the gentleman from california for five minutes. >> thank you mr. chairman and thank you dir. comay for your service to our country and your efforts to keep us safe. it is appreciated by every member of this committee. we do value you and your agency service and appreciate it. i remember law school, the phrase bad cases make bad law. i'm sure we all have that. i think this might be a prime example of that rule. we can't think of anything worse than what happened in san bernardino. two terrorists murdering innocent people, it's outrageous. it sickens us. it sickens the country. the question really has to be, what is the rule of law here?
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where are we going with this? as i was hearing your opening statement, talking about a world where everything is private, it may be that the alternative is a world where nothing is private because once you have holes in encryption, the rule is, it's not a question of if but when those holes will be exploited and everything that you thought was protected will be revealed. the united states law often tends to set international norms, especially when it comes to technology policy. in fact, china removed provisions that required backdoors from its counterterrorism law passed in december because of the strong international norm against creating cyber weaknesses. last night i heard a report that the ambassadors from america,
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the united states, canada, germany sent a joint letter to china because they're thinking about putting a hole in encryption in their new policy. did you think about the implication for form policy with china and what they might do when you filed the motion in san bernardino or was not not part of the equation? >> i don't remember thinking about it in the context of this investigation but i think about it a whole lot broadly. it makes it so hard. there are international implications. i think more to the data and motion. i have no doubt that there's international implications. i don't have good visibility into what the chinese required to people who sell devices in their country. i know it's an important topic. >> before i forget, i'd like to ask consent put in the record and op-ed that was printed in the los angeles times today and authored by myself and my
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colleague. >> how could anyone object to that? >> i just know that in terms, you mention the code at apple, they've done a good job of protecting their code and you didn't remember anything getting out loose. i do think, if if you take a look, for example at the example of juniper networks where their job is cyber security. they felt that they had strong in christian encryption and there was a vulnerability. they were hacked and it put everybody's data, including the data of the u.s. and the fbi and state department and the department of justice at risk. we still don't know what was taken by our enemies. did you think about the juniper network issue when you filed this report and remedy in san
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bernardino? >> no, but i think about that and allot similar intrusions and hacks all day long because it's the fbi to job to investigate those and stop those. >> i was struck by your comment that apple hadn't been hacked but in fact, i cloud accounts have been hacked in the past. i think we all remember in 2014 the female celebrity account that were hacked from the cloud, from icloud and cnbc had reported that china likely attacked icloud accounts and in 2015 last year, last year, apple had to release a patch in response to concerns that there had been brute force attack at icloud's account. i'm anticipating, we will see that apple will take further
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steps to encrypt and protect not only its operating system that it has today, but also the protection as well as the icloud accounts. i will close with this, i have on my iphone all kinds of messaging apps that are fully encrypted, some better than others. some were designed in the united states, a bunch of of them were designed in other countries. i wouldn't do anything wrong on my iphone, but if i were a terrace, i could use any one of those apps and communicate securely and there wouldn't be anything that the u.s. government, not the fbi, not the congress of the president could do to prevent that from occurring so i see this as whether or not my security will be protected but the terrace
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will continue to obey. i think you mr. call me for being here. i yield back. >> we recommend eyes the gentleman from texas for five minutes. >> thank you director, i appreciate you being here. to start with some basics, the fourth amendment protects citizens from government. citizens have rights and government has power. there is nowhere i see in the fourth amendment that there is, except for terrace cases or fear cases that the fourth amendment should be waived. law enforcement typically would fulfill the duty or ability in that one as far as they could
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which is good. now we have a situation where the issue is not lawful possession. lawful possession of the phone belongs to the fbi. do you agree with me on that? >> yes. so were not talking about whether the phones are in lawful possession. the issue is whether government can force apple, in this case, to, to give them the golden key to unlock the safe because they can develop the key. i know that's kind of simplistic, but is that a fair statement? >> no. >> let me ask you this. you say it's not. apple develops the software and gives it to, and unlocks the phone but this is not the only phone in question. is that correct? there are other phones that the
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fbi have in lawful possession that you can't get into. >> short of law enforcement, yes we always encounter phones we can't unlock. >> how many do you have that you want to get into the phone but you can't get into it because you don't have the software to break into it? or to get into a? >> i don't know the number a lot and they're all different which makes it hard to talk about any one case without being specific. >> per year in lawful possession of all these. this is not an issue of whether or not you're in lawful possession. my question is, what would prevent the fbi from taking that software and going into all that other phones that you have. >> this seems like a small difference but i think it's kind of a big difference the
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direction from the judge is not to have apple get us into the phone. it's to turn off the delay features. we want to try and guess the password. in theory, another 5c running ios nine which makes this relief possible and i mean it when i say it's obsolete because the six has no door for us to try to pick the lock on. if there were phones in the same circumstances, sure you could ask for the same relief from the court to try to make effective the search warrant. >> so rather than giving you the key, you want apple to turn the security system off so they can get into the phone or you can get into the phone. >> yes my metaphor was take away the ruling watchdog that will attack us if we try to open it and give us time to pick the lock. >> turn off the viper system so you can get into the phone.
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it boils down to the fact of whether or not government has the ability to demand that. we have two court rulings. they are different. i've read the opinions. their different cases. would you agree or not? congress has to resolve this problem. we shouldn't leave it to a judiciary to make this problem. congress should resolve the problem and determine exactly what the expectation of privacy is in these particular situations of encryption or knowing corruption, key or or gnocchi. do you agree or not? >> i think the courts are competent in this is what we've done for 230 years to resolve the narrow question about the scope, but the broader question is this collision between safety and privacy. the courts cannot resolve that
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and the congress should resolve what is the expectation of privacy in this high-tech atmosphere of all this information stored in many different places on the cloud, on on the phone, wherever it stored and you agree or not? should congress resolve this issue of expectation of privacy of the american citizens benchmark. >> i think congress has a critical role to play. since i said before we are competent as an independent branch of government, but i think it's a huge role for them to play. >> i agree. i think it's congress's responsibility to to determine the responsibility of privacy. i yield back. >> the gentleman from tennessee is recognized for five minutes. >> there are nine minutes and 45 seconds remaining in this vote. i will take a chance at the gentleman from tennessee. if you want to go, i'll go or i can come back. >> i'm trying to move the long. i don't want to keep their director anymore than we have.
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>> dir. comay, are there limitations that you could see him permitting the fbi or government court to look into certain records, certain types of cases or circumstances that you could foresee or do you want to open for any case where there could be value? >> i'm not sure i following you. i like the way we have to do our work which is go to a judge in each case and show authority and factual basis for anybody stuff, but if we decided to pass a statute, and we thought it should be limited in some way to terrace or maybe to something where you use reasonable expectation that a person's life is in jeopardy or you could apprehend somebody who had taken somebody's life, have you thought about any limits because under what you're saying, you go to court and you can go to court for cases that are not capital cases, i don't think anybody is asking that.
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the public feels what we had happen in san bernardino was so awful that if we can find something that's in the cloud that we can contact someone and find out that he had something to do with it then that's important, but if you're talking about getting into somebody's information to find out who they sold two kg or two bags, it's it's a whole different issue. where would you limit it if you are coming up with a statute that could satisfy both your interests in the most extreme important cases and satisfy privacy concerns. >> i misunderstood the question, i don't know. i haven't thought about it and i don't think that should be the fbi offering those parameters to you. we can only seek wiretaps for example on enumerated offenses in the united states.
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it has to be really serious stuff before a judge can even be asked to allow us to listen to someone's medication in the united states. it just can't be any offense. there is precedent for those kind of things. >> because i'm slow in getting up there to vote, i may yield back to balance my time and start to walk fast. >> the committee will stand in recess. we have two votes on the floor with seven votes remaining. mr. director, we appreciate your time.
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this meeting will reconvene and continue with questions for director comay. we recognize the gentleman. >> thank you for being here. my grandfather was a career fbi agent so i have respect for what you do and who how you do it. the question is how much privacy are we going to give up in the name of security and there's no easy answer to that. historically with all the
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resources and assets of the federal government, all the expertise and billions of dollars, when, when has it been the function of government to compel or force the private citizen or company to act as an agent of the government to do what the government couldn't do? that's a legal question and lots of different circumstances. private entities have been compelled to assist. there are cases on the topic so let's talk for a moment about what you can't see and what you can do, with with all due respect to the fbi, they didn't do what apple suggested they do to retrieve the data, is that correct, when they went to change the password, that kind of screwed things up, did it not? i don't know if that's accurate. i that's accurate. i wasn't there and don't have complete visibility but i agreed earlier there was an issue created by the effort by the county at the fbi's request to try to set it to get into it
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quickly. if they didn't reset it then they could've gone to a wi-fi, a local wi-fi and perform that backup so they could go to the cloud and look at that data, is that correct was mark. >> yes you could get in the cloud, anything that was able to be backed up but that does not solve your full problem. i think i would still be sitting here talking about it otherwise let's talk about what this government can see on using a phone, and it's not just a phone, phone, you can look at metadata, correct? the metadata is not encrypted. if i called someone else for that phone had called at other people, all the information is available to the fbi, correct? >> in most cases. let's talk about this case. >> you can see the metadata, correct? we can see most of the metadata. >> how would you define metadata. >> it is records of time of
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contact, numbers assigned to the particular color or texture, it's everything except content. you can't see what somebody said but you can see someone texted you in theory. my understanding is that can be tricked tricky. there are sometimes limitation on my ability to see do you believe geolocation, if you're tracking somebody's actual, where they are, is that, is that content or is that metadata? >> my understanding is it depends upon whether you're talking historical or real-time. it can very much implicate the warrant environment and does a lot. there is nobody on this panel that's representative of the people that can see what the guidance is and understand how
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you interpret and what you're actually doing or not doing with somebody's geolocation. >> you've asked that of the fbi? >> we been asking this for years of the department of justice. work asking for more tools and more compulsion and we can't see what you're already doing. we can't see to the degree you're using stingrays and how they work. i think i understand how they work but what sort of requirements are the? is it suspicion or is there a probable cause want is being used or needed? it's not just the fbi, we need, and we've got the irs and social security using stingray. other. other tools that i would argue our content into somebody's life and not just the metadata that you are able to see how do we get exposure to that? how do we help you if you routinely refuse and i say you meaning the department of
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justice access in explaining to us what tools you already do have and what you can access? how do we saw that? >> i do have a great answer. i can go find out what's been asked for and what's been given. i like the idea of giving as much transparency as possible. i find it re- assuring to take cell phone tower simulators. we always use search warrants. that shouldn't be that hard to get that information. >> what i worry about, i don't know what the irs is doing with them and i have a hard time figuring out who is responsible. to what degree are you able to access and get into social media in general and are you using that as an effective tool to investigate and combat what you need to do? the time has experience expired. >> social media is a feature of all-around lives. therefore it's a feature of all of our investigations. sometimes it gives us useful
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information and sometimes not. it's a big part of our work. thank you we recognize the gentleman from georgia. >> thank you director comay. the framers of our constitution recognized a right to privacy that americans would enjoy. fourth amendment pretty much implies that right to privacy. >> i'm not a constitutional sucked scholar. i think a scholar might say it's not the fourth amendment that's the source of the right to privacy but it's the other parts of the constitution. you may not look at the people's stuff, their houses their houses their effects without a warrant and without independent judiciary. >> it also grants to the government the fourth amendment,
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the authority to search and seize when the search or seizure is reasonable. is that correct? >> again to be technical, i think the question is congress is given authority through statute. the fourth amendment says that the right of the people to be secure in their place and in their persons houses, and effects against unreasonable searches and seizures should not be violated and no one should be issued but upon probable probable cause. what i'm reading into the fourth amendment is people do have a right to privacy and to be secure in their houses and effects, but i'm also reading into it and implied responsibility of the government to on occasion search and seize,
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would that be your reading of it also? >> yes. >> and of course upon probable cause but there are circumstances in the hot pursuit or at the time of the arrest there are some exceptions that have been caused aware warrant is not always required to search and seize. is that correct? >> yes, if you are in the middle of an emergency and you're looking for a gun that a bad guy may have hid in his car or something, you don't necessarily have to go get the warrant. if you have a factual basis you can do the search and then have the judge look at it and validate it. even in a situation where circumstances exist, technology has now brought us to the point where law enforcement or government is preempted from
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being able to search and seize. is that correct? technology has produced this result. >> i think technology has allowed us to create zones of complete privacy which seems awesome until you think about it, but those zones prohibit any government action under the fourth amendment or search authority. >> it's 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. >> potentially, yes sir. >> that is the situation that we have with this encryption, is that not correct. >> i think that's a a fair description. we have communication were even at judges order can't interfere. >> doesn't seem reasonable that the framers of the constitution
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meant to exempt any domain from its authority to be able to search and seize if it's based on probable cause or some special circumstance that allows for a search and seizure with less than a warrant and it showing of probable cause? i doubt they imagined, the devices that we have today in the ways we have of communicating but i also doubt they imagine any place where enforcement, with lawful authority could not go, and the reason i say this is because the first amendment talks about people's home. is there a more important place in people's home home? law enforcement could go into your house with appropriate
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predication and oversight but to me the logic of that tells me they wouldn't of imagined any box or storage area or device that could never be entered. >> from that standpoint, to be a strict constructionist about the constitution and the fourth amendment, it's ridiculous that anyone would think that we would not be able to take our present circumstances and shape current law to appreciate the niceties of today's practical reality. i know i'm rambling a little bit, but did you understand what i just said? >> i understood what you just said. >> do you agree or disagree. >> the time has expired, you may answer the question. >> i think think it's the kind of question that democracies were ill to wrestle with and that the congress of the united states is fully capable of wrestling with in a good way. >> the time has expired. >> the chair recognizes the gentleman from pennsylvania for five minutes. >> thank you german mr. dir., it's always always a pleasure. >> i'm going to expand a little bit on one of the questions.
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is the bureau asking apple to turn over the penetration code or for the bureau to get into or that you want the penetration code at your disposal? you understand what i'm saying? >> as i'm understanding, the judges order, the way it could work out is that the maker of the phone would write the code, keep the the phone and the code entirely in their office space and the fbi would send the gases electronically, so we wouldn't have a phone or the code that's my understanding. >> that's a good point to clarify. >> there's a lot of rumors out there. >> i'm gonna switch course a little bit you see the federal court resolving the federal issue that the bureau is presently face with? whichever way that decision comes down or should congress legislate the issue now, if at all?
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>> i appreciate the question. i don't think that's for me to say. i do think the courts, some people said so in the middle of this investigation, why didn't you come to congress. i think the courts will sort that out faster than any legislative body would but only in that particular case. the broader question as i said earlier, i don't see how the courts can resolve this tension between privacy and public safety t that were all feeling. >> given that most of our social, professional and very personal information is on our desktop computer and on our laptop and ipad, 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 act as valuable evidence to solve a felony, particularly terrorism. >> you mean making it a
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threshold above reasonable cause? >> not the threshold, but we could do things that the magistrate level for the state level but also working with the federal level, we had to go to one or two different levels, what's your position on that? >> so instead of having magistrate judges decide these, the district court might? >> yes and no disrespect to the magistrate court, i'm good friends with lots of those people, but from us perspective of the public, is it more narrowly defined limited number of people making that decision concerning the electronics that we have? >> i haven't haven't thought about that. i agree with you and i haven't number of friends and they think well and rule well, i think they're fully capable of handling these issues but i haven't thought about it long
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enough to react other than that. >> just for the record i've managed a couple of prosecution offices and i've never gone to the experts, whether it's these electronics and been asked if you've completed everything you've been asked to complete. >> thank you. >> the chair recognizes the woman from california for five minutes. >> dir. komi, my district is next to san bernardino. after the terror attacks, we mourned the loss of 13 lives. there is indeed fear and anxiety against my constituents. my discussion is particularly important back home. there are many in our area that want answers but there are also many who feel conflicted about putting their own privacy at risk. my first question to you is
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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 we will hear from argue that if such a key or software was developed to help the fbi access the debate used by tran6, it would make millions of other devices vulnerable. how can we ensure that we are not creating legal or technical back doors to technologies that will empower other governments of taking advantage of this loophole. >> it's a great question. i think what you have to do is just talk to people on all sides of it who are true experts. i've talked to a lot of experts and i'm an optimist. i actually don't think we've given this the shot that it deserves. i don't think the most creative and innovative people have had an incentive to try to solve this problem but when i look at particular phones, in the fall of 2014, the makers quit.
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i think judgments have been made that are not irreversible but i think the best way to get at it is to talk about people about why do we make the phone this way and what is the possibility. the world i am imagine is a place where people comply to wants. how they do it is up to them. lots of phone makers and providers of e-mail and text provide secure services to their customers and they comply with warrants. it's just how they've structured their business. it gives me a sense of optimism that this is not an impossible problem to solve. it's really hard and it will involve you talking to people who know this work. >> i'd like to ask about law-enforcement fighting technical solutions. i understand there may be other solutions for law enforcement when it comes to recovering data on a smart phone. they argue later today that pollutions to this data, solutions which may include
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jailbreaking the phone amongst others. or she said other entities within the government may have the expertise to crack the code. has the fbi pursued these methods are tried to get help from within the federal government from agencies like the nsa? >> yes is the answer. we have talked to anybody who will talk to us about it and i welcome additional suggestions. you have to be very specific, 5c running ios nine, what are the capabilities of that phone? there are versions of different phone manufacturers and it is possible to break a phone without having to ask the manufacturer to do it. we have not found a way to break the 5c running ios nine. as i've said, in a way this is kind of yesterday's problem because the 5c while it's a great phone has been overtaken by the six and will be overtaken by others that are different that make this yesterday. >> to let me ask this, smart phones can be another form of personal information storage,
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companies are not required to maintain a key to unlock encryption. given this, law enforcement has been able to find a way to get into ways to get into information. how does this differ from a smart phone? isn't it the fbi or the law enforcement agency who bears the responsibility to figure out the solution to unlock the code? >> the problem is there's no safe in the world that can't be open. if experts can't crack it will blow it up or flow the door off. this is different. the awesome, wonderful power of encryption changes that and make that comparison inept.
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so sure where law enforcement can, lawfully figure out how to do it, we will and should, but there will be occasions and it's going to sweep across with the updating of phones and the changing of our apps, it's going to sweep across all of our work and outstrip our ability to do it on our own. >> thank you. i yield back. >> the gentleman from south carolina is recognized for five minutes. >> thank you for your service to the country. i do appreciate your acknowledgment of my colleagues in the difficulty in reconciling binary principles like public safety, national security and privacy. my concern is primarily based on safety. the right to a jury trial is not much use if you're dead.
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i reconcile those competing principles in favor of public safety and my concern is, as i hear you testify that i have colleagues and others who are advocating for these evidence free zones. they're just going to be compartments of life where you are precluded from going to find evidence of anything and i'm trying to determine whether or not we as a society are going to accept that, that there are certain, no matter how compelling the government is, we are declaring right now, this is an evidence free zone, you free zone, you can't go here no matter if it's a terrorist plot, and i'm not talking about the drug case. the case they decided yesterday in new york is a drug case. those are a dime a dozen. national security, there's nothing that the government has a more compelling interest in than that. we will create evidence free zones? am i missing something?
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is that how you see it? you just can't go in these categories unless someone can sense? >> that's my worry why think it's so important that we have these conversation. even i on the service think it sounds great that when you buy this device no one will ever be able to look at yourself, but there's time when law enforcement saves our lives and rescues our children in our neighborhoods by getting permission to look at our stuff. i come to the case with the baton rouge a month pregnant woman who was shot when she opened her door. the mom said she keeps a diary on her phone and we can't look at her diary. that's the problem. i love privacy but we love public safety and it's so easy to take talk about buying this great device and you will have privacy. that's for this collision is
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coming in. >> i love privacy too but i want my fellow citizens to understand that most of us also, in varying degrees also love our bodies in the physical integrity of her body but the government has been able to access orders for either blood against the will of the defendant or its, in some instances, surgical procedures against the will of the defendant. so when when i hear my colleagues say, have you ever asked a nongovernment actor to participate in this curing of evidence, absolutely, that's what the surgeon does. if you have a bullet from an officer who was shot in the defendant, you can go to a judge and asked the judge to force a nurse or surgeon to an exercise and remove that bullet. if you can penetrate the integrity of the human body in certain categories and cases, how in the hell can you not access a phone? >> i just find that baffling. let me ask you this. if apple were here, and they're going to be here how would they tell you to do it? if there were a plot on an
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iphone to commit an act of violence against an apple facility hypothetically, and they expected you to prevent it, how would they tell you to access the material on this phone? >> i think they would say what they've 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 or the manufacturers efforts to get into that phone. we think that's what people want. i would hope people would look of this conversation and say really, do i want that? i would hope they would take a step back and understand that this entire country is based on a balance. it's a hard one to strike, but it's so seductive to talk about the privacy as the ultimate value in a society where we aspire to be safe. that can't be true. we have to find a way to accommodate both.
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so apple on the one hand wants us to weigh and balance privacy but they've done it for us. they've said we've 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 person's phone that is owned by city government there's no balancing to be done. they were ready done it for us. i would just tell you director, in conclusion, we asked the bureau and others to do a lot of things and investigate crimes and anticipate crime and stop it before it happens, and all your asking is to be able to guess the password and not have the phone self-destruct and you can go into people's bodies and remove bullets but you can't go into a dead person's iphone and remove data? i find it baffling. but i'm out of time. >> your time has expired. we recognize the gentleman from florida for five minutes.
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>> thank you mr. chairman. thank you mr. call me for being here for your service and that of the men and women who work for you. we are all grateful for what they do. i just wanted to take a moment before i ask a couple questions here to let you know that bob levinson, who is an agent for over 20 years, 28 years at the justice department continues to be missing. i want to thank you for what you've done for the facebook page they've put up. i love a report on the effectiveness and what you've heard from that. more than anything else, on behalf of his family want to think you for never forgetting this former agent and i'm grateful for that. >> thank you sir, he will never be forgotten. >> now, i want to agree with him that if this were as easy as public safety or privacy, i think most of us, probably all
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of us if we had to make the choice we would up for safety. i have some questions and what i'm confused about is this. the tool that you would need to take away the dog, take away the vicious guard dog is a tool that would disable the auto or race. there's there's some confusion as to whether or not there's an additional tool that you're seeking that would allow you. >> i think there's three elements to it. i've spoken to experts and i hope i get this right the first is what you said which is to disable the self-destruct, auto erase feature and the second is to disable the feature that between successful gases, in ios nine it spreads out the time. even if we had the time, it
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would take years and years to guess so do away with that. the second is smaller but set it up so we can send you electronic gases so we don't have to have an fbi agent push an electronic gases. once they created that, we do expect them to preserve out or destroy it? >> i don't know. it would depend on what the judge would order. i think that's for the judge to sort out. so here's the issue, i think that vicious guard dog that you want to take away so that you can pick the lock is one thing, but in a world where we do, there are awful people, terrorists and job predators and lester's who do everything but so do so many of the rest of us and we would like a pack of vicious guard dogs to protect
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our information and keep us safe because there's a public safety part of that equation as well and the example of surgical procedures, the reason that doesn't apply here is because we know the only one doing the surgical procedure is the doctor operating on behalf of law-enforcement. when this tool is created, the fear obviously is that it might be used by others and there are many who will try to get their hands on it and will then put at risk our information on our devices. how do you balance it? this is a really hard one for me. this isn't an either or. i don't see it as binary. how do you do that? >> i think it's a reasonable question. i also think it's something the judge will sort out. i think apple's contention is made in good faith that there would be substantial risk in creating the soft where. on the other side i'm a little
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skeptical because this would only be usable in one phone, but that is something the judge will have to sort out. it's it's not an easy question. >> if it's the case that it's usable in more than one phone, then the public safety concerns that we may have about what would happen if the bad guys got access to our phone and our children's phone, in that case those are really valid, aren't aren't they? >> sure, the question that i think we will have little geisha and about is how reasonable is that concern it's a slippery slope argument. apple engineers might have that in the head. what if they are kidnapped and forced to write software. that's why the judge has to sort this out. >> finally mr. chairman, i worry about the discussion that's taken place within a domestic
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context. there are countries around the world where we know very well that the government do their best to monitor what happens in their country and through people's cell phones are able to to take action to throw people in jail and torture people and i think that value is something else we have to bear in mind as we gauge in this difficult topics. >> the chair recognizes the gentleman from florida for five minutes. >> good afternoon. when you're looking at a case like the apple case and you want to be able to remove the guard dog from the fbi, are you concerned about preserving the evident value that can be used or you more interested in getting the information for intel purposes so that you can use that for counterterrorism? >> we want to do both but if we have to choose, without the information first and then we'd
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like it to be in a form that could be used if there was a court proceeding against someone someday. >> i guess, is there instant instances in which a company would provide the data in a way that you would not be able to authenticate that in court? >> sure that happens all the time. >> that something the fbi, if that's what you get your fine with that? >> it depends on the case but in general, that is a tool we use. if private cooperation, where we may not be able to use the information in court. >> in terms of this, the guy in san bernardino, it wasn't even his phone. the owner of the phone has consented for the fbi to have the information, is that correct? >> right. we have a search warrant for the phone the guy who was possessing
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it is dead but the owner of the phone has consented. what's the legality of the case that you're trying to do because people look at it and say you're basically commandeering a company to do these things. that's typically not the way it works. what would you say is outside of the technology context, what is the argument in this case? >> everyone in the u.s. has an obligation to cooperate with appropriate authority. the question that the court has to resolve is what are the limits of that? apple's argument is that might be okay if it requires us to hand you something we've artie made to open a phone but afford them and make something new, that's beyond the scope of the law. that something courts do every day in the united states trying to understand the law and interpret its scopes based on the law. that's will be done in san bernardino in an brooklyn on the drug case. i think it's being done and all over the country. law-enforcement is always encountering these kinds of devices. >> have you, in your cases, have you gotten in order that if you
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have a search warrant to produce code? >> i don't know of a similar case. >> in terms of, i know some of the technology companies are concerned if there creating ways to penetrate their system that's creating a backdoor and my concern is terrorists want to operate in a variety of spheres. one of the ways is through cyber attacks. if companies were creating more access for law enforcement, with that create more vulnerability for people and be more likely to be subjected to cyber attack which mark. >> potentially, if there were access tools that got loose in the wild and could be easily stolen, that is a huge concern. that's something we worry about every day. >> how would you then provide
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assurances to a company that's working with you that it doesn't get out in the wild, so to speak. >> i think it's justified that apple is highly professional and protecting their own reputation. they can even take the phone and protect it. that is something the judge will sort out. i think their argument will be that's not reasonable because there's risks. even the worker that it could still get away from us in the judge will have to figure that out. >> the gentleman recognizes the gentleman from illinois. >> thank you. i would like to make a couple
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comments and begin by saying that i hope all of the members of committee would take note that the director is actually answering our questions. that is obviously very refreshing that we get a lot of witnesses here and if they bring them they might not not like them and so forth. it's good to get information without passing judgment. i think that's what you've done very well here today. you're not passing judgment on apple or their motivation. i think not questioning people's motivation is easier to get a solution because once you do that, everybody kind of says okay let's get our defenses up but what we really need to be doing is defending the american people, not apple or the fbi for that matter but the american people. i want want to thank you for that. i want to suggest we continue these conversations. i buy a house and have no reasonable expectation that if you get a warrant you're going to go into any drawer in my bedroom. when i buy the house i don't
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have any expectation of privacy once you get a warrant and i would expect you to get one. i come from a time when we weren't sure the police and law enforcement were getting warrants in the 1960s to get that so we want to be careful and make sure i'm trusting of you if you were the fbi agent, i would i would say no problem director komi, coming in. unfortunately there are human beings that are at different levels of government. i just want to say i'm happy you came because i don't have that expectation in my car. i don't use the computer a lot, i still right a lot. we do put a lot of information in these contraptions. the reason we put him there is because we don't want to put him on a notebook. we want to keep them private. i don't have any expectation once i put this.
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i think that's where you're going. is that what you think if i heard you right? >> i do. i agree with you except i think the case for privacy is stronger than you said you do have an expectation of privacy in your home and in your car in in your phone. we have to overcome that by going to a judge and showing probable cause and getting a warm warrant. the problem is were moving to a place where there are warrant proof places. yes these places are important because they hold our whole lives. it is a source with a tremendous expectation of privacy.
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before going to move to a place where that is not possible to overcome that, that's a world we've never lived in before the united states that have profound consequences for safety. what i'm saying is we shouldn't drift there. companies shouldn't tell us how to be, the american people shouldn't tells how to be. we need to know how we want to be in figure that out. >> i think around the same place because i do have a reasonable expectation of privacy in my home, but you go to court, you convince a judge and you overcome it, i have never had any expectation that a court order, because i bought something, that i'm going to overcome a court order. i think read the same place. thank you so much director for coming in and sharing. i hope to share more time with you so we can talk some more. thank you. >> the chair recognizes the gentleman from iowa, mr. king, for five minutes. >> thank you mr. you mr. chairman. thanks for your testimony and your leadership. i'm curious about this from a perspective that has to do with our global war against radical islamic terrorists. i have laid out a strategy to defeat that ideology.
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i would take it back to our ability some years past to be able to identify their cell phone and get into their cell phones in such a way that we also got into their heads which drove them into the caves and it really diminished a lot of their other robust activity that al qaeda might've carried out against us. i think that was successful. now we have a global cyber operations going on with well over 100,000 isis activities on twitter and other cyber activity in a single day. so i'm interested in how the parameters that have been examined thoroughly by a lot of the lawyers on this panel plan to apply an all-out cyber warfare against isis or their subordinates that i think is necessary if were going to defeat that ideology.
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so i'm thinking in terms of if this congress might diminish, slow down or shutdown access to this phone also means access to any other phone that they might be using. they would have a high degree of confidence that they could operate with the level of impunity in the cyber world out there. you have any comments that you'd like to make on the implications being locked out of an opportunity to unlock this phone might mean to a global war on terror that could be prosecuted by a next administration aggressively across the fields of cyber warfare. i would just add to that for the sake of enumerating them, financial warfare, educational warfare and human intelligence in the network that will be necessary to defeat radical islamic terrorism. >> thank you mr. king, this conversation were having today and that i hope will continue is really important for domestic law enforcement but it has and that i hope will continue is really important for domestic law enforcement but it has
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profound and implications for other things because since mr. snowden's revelations, terrorist tradecraft change. they moved immediately to encrypted apps for their communication and trying to find devices that were encrypted. they wrap their lives and encristtion because they understand that. there's no place we see this collision between our love for privacy and the security of encryption and public sgsety then inviting terrorism, especially isil because the fbi's responsibility which is here in the united stateand im e always looking for needles in a haystack. the most dangerous most dangerous needles go invisible to us because that's when isil moves them to an encryt tred app that is encrypted in a judges order is irrelevant. that's why this is such an urgent feature of our work. it has huge implications in the fight against terrorism. >> do you get any signals that
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the american public or the united states congress is contgerplating some of the thins you've discussed here to the det trvesthat it would be a component in the decision-making? >> i don't know. i know everybody is interested in us and all thoughtful people see both sides of this and they're tr. theng to figure out how to resolve it practically and technically. the other challenges not to make it harder. there is not a single it. there's all different kinds of manifestations of this problger we call going dark. people of goodwill who care about privacy and sgsety are wrestling with this. court cases are important but they are not going to solve this problem for us. >> let me suggest, i'll just say that i think it's a known in a given that isis is seeking a nuclear device. that has been much been said publicly. if we had a high degree of confidence that they had that they were on the cusp of achieving such capability and perhaps the capability of delivering it, if that became part of the american
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consciousness, do you think that would change this debate that were having here today? >> i do worry that it's hard to have complicated conversations like this in an emergency and in the wake of a disaster which i think it's so important we have this conversation now because in the wake of something awful happening it would be hard to talk about this in a thoughtful, nuanced way way. i think that's why it's so welcomed that the chairman is having this hearing and having further conversations about it. >> thank you director. i would just state that my view is that i want to protect the constitutional rights of the american people and i'd like to be able to have this framed in law 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 radicalism. i think you mr. chairman.
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>> back. >> thank you mr. chair. thank you director call me your time and your patience with us toways y. i had a town hall meeting in my district on sunways y and a coue hundred people showed up and it was a general town hall meeting talking about issues that congress is dealing with. much to my surprise, this was a burning issue. many of my constituents came to ask me questions and i told them they could suggest some questions and i would ask you and maybe you could speak to some of my constituents today so i can send them a clip of your testimony. basically, they had a hard time believing, they were not supportive, they do not want apple to comply but they had a hard time believing that the fge couldn't already do this and so a couple of the questions were, how have so many others cracked
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iphones and shared their findings in how to articles and oblven that you descr sged it nt as a backdoor, but getting the dogs away so you can pick the lock, th tir question is what other intelligence community agencies have the fbi work with considering there are at least 12 in the government, how is it that you haven't been able to call the dogs off and pick the lock? >> there are 16 other members of the intelligence comafnity. it pains me to say this because in a way we benefit from the ted th that is the product of maybe too mucvestelevision. the only thing that is true is that we rgerain very attractive people, but we don't have the capability that people sometimes imagine us to have. if we could have done this quietly and privately, we would have done it.
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this litigation is dimunicult. it's especially difficult for the people who are victimized in san be a gardino. we really can't, there may be other models or other permutations and models where we have different capabilities but i'm here to tell you, maybe someone tonight will say i thought of something, but apple is very good at what they do. they have a a wonderful company and wonderful products. they have set out to design a phone that can't be opekee th tir ways a g near succeedin. i think with the fit six and beyond they will have succeeded. that doesn't make them better people it just makes it a challenge to us that were not yet up to meeting without intervention from court. >> since you can clone iphone componenmeo and test passwords n the phone without putting the original at risk, can't you use brute force methods to guess the password? >> not with the, and i think this is what he was aa think a lot of tech experts
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asked why can't you mere the phone in some way and then play with the mayor. for reasons i don't fully understand it's not possible in this instance. we do want to try and brute fot. reitived the auto erase function and the delay between guesses function which would make it take ten years to guess it. if we have those removed we can > sess this paseopord and 26 minutes because we have enormous computer power in the government but we need to bring it to bear without the phone killing itself. >> thank you. i yield back my time. >> the chair recognizes the gentleman from idaho for five minutes. >> thank yomanmr. chaiultan. thank you director for being here and thank you for what you're doing. iahnow you have a very difficult job that you are trying to balance both security and prbecaacy. i do have a few questions as you're looking at the long-teult plate or the other difyomrent
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avenues that were talking about. something that conce a gs me but this iss mery difyomrent than se of the examples i've been given. for example, when when you are going into a home if you're asking for a key and you go to the landlord, thatahey is already made. you go to landlord and you can say i have a warrant here and thatahey is made can you please give me a key for that. the method of creating thatahey, even if theahey dt oucal't exiss already exist. this is very different than that. would yomans iree? >> yes. you're exactly right. there's a difyomrence between hy landlord you have the spare key, the judge directs you to give it to us and hey lanrectord we need yomanto make aahey for this lot. that's a legal question as to whether or not the authority extends to that. >> we think it doesn't should
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as far as they're telling uand i think that would bes miolating the judges order. if they have a ability to do this i do think they would be violating some sort of ordends they are saying the ability does not exist. is that correct? >> i think that's co asect. th tir general counsel are very smart guys and you can talk to them aaiuut this but i think wht saying is we can do it but it requires us to write new code that doesn't exist. whether there's a meaningful distinction between that and
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somebody who already has a key legally is something a judge will have to sort out. >> what conce a gs me is the mam that bag 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 it would uncover some of the problgers that we have in the midrecte east. there could be some evidence in the that leads us to take some te asace dowkee there is a person that is dead who has never given his code to somebody else and i'm conce a gd that as were looking down this road, were opening the door you suggested were getting hacked all the time.
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when you open thatahey that doesn't endlst at all, you're opening up every other phone that's out there. do you see how that can be a concern? the judge will have to decide if that is a reasonable argument. you said apple
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they are looking for ways to get into your iphone and my fat iphone and everybody else's iphone. at some point that's what you have a difficult job because we have to balance that safety and security. do you think this capability that you are asking for can only be used pursuant to a warrant? >> capability that the judge has directed apple to provide? i think that is the procedural issue. there is a warrant and the judge has issued an order. do you think that can only be obtained through a warrant or are you seeking to update it later through other means i don't know how we would. if it's in apple's position unless they would volunteer. if they maintained afterward. >> thank you very much, i've run out of time.
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we recognize the gentleman from louisiana for five minutes. >> thank you mr. chairman. before i start, i would like like to enter the record two articles, one is from the toronto star entitled encrypted evidence is hampering criminal investigations and another one says the baton rouge advocate which is the brittany mills murder case that has put in baton rouge in the national news on an encryption debate. >> thank you mr. chairman. let me just say and director coming, you mentioned pretty mills case a number of times. i want to paint the scenario for everyone in the room and put a face with it. this is brittany mills. this is brittany mills almost a month spring with her daughter. in may of last year, britney was murdered in my district. she was a mother, she was eight
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months pregnant with her second child at the time. someone came to her door and killed her. a couple days later, her on born child also died. according to her family and friends, she kept a very detailed diary in her phone. her family, who are here today, mrs. barbara mills, we you you please stand, and roger, her family would like the phone open so our district atty., who is also here today, thank you for standing, our standing, our district attorney who is also here can use that to attempt to find the murderer who committed this crime. i guess my question is we balance privacy in public safety and criminal justice but are we creating an underground criminal
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sanctuary for some very disturbed people and how do we balance that? >> we are in danger of that. until these awesome devices, and that's what makes it so painful, they are wonderful. until thus, there was no closet in america, no in america, no safe in america and no garage in america that could not be entered with the judges order. we now live in a different world. that's the point were trying to make care. before we drift to a place where a whole lot of other families are an incredible pain and look at other district attorneys and say what you mean, you have a court order, before we drift to that place we have to talk about it because privacy is awesome but stopping this kind of savagery and murder and pedophilia and all the things that hide in the dark in america
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is also important to us. that's why this conversation matter so much. it's also why we have to talk to each other there are no demons in this conversation. we carry about the same thing, but it is urgent and there's no more painful circumstance than in the death of that beautiful woman and her baby. >> i do appreciate you saying we have to talk to each other because just in the small time i was able to put the representatives of apple and the district attorney in the room, i think we made some progress and maybe some alternatives. maybe we will get somewhere. it is a very difficult balancing act. i think people from apple are well-intentioned and have some concerns, but let me ask you this. i took a congressional delegation trip to the ukraine and when we landed our plane we were on the runway and our security advisers came to the back and said if you don't want your phone hacked and people have access to your text messages, your pictures and e-mails, we advise you to power
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your phone off and leave it on the plane. 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 you need to power that 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 could get into my phone while i'm on it and it's in my possession and we can't get into a phone that we have in our possession? >> the difference, and i'm 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 to make accommodations that we do not require here to give them
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greater surveillance capability than we would ever imagine in the united states. the first thing per the second thing is we are a rule rule of law country. the fbi is not cracking into your phone were listening to communication except under the rule of law and going to a judge. countries have capabilities and in part based on accommodations they have made an that country. >> the chair recognizes the gentlewoman from washington state for five minutes. >> think you mr. chair and thank you dir. call me for being with us and for all of your time. i worked my career in technology and e-mail a mobile communications and i've constantly heard from customers, both consumers and the government to make sure that information was protected and devices were secure. in your testimony, you state you are simply asking to ensure that you continue to obtain electronic information and evidence and you seem to be asking technology companies to put in place or revert back
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systems that were easier to access, but don't you think in general that's an oversimplification of this issue? we all know that bad actors want to exploit vulnerabilities and break into a number of things from phone, personal device or power grid. these things aren't static, their changing and getting smarter every day. the bad actors are getting smarter every day and we need to be smarter every day in terms of protecting information. so in that type of environment, hi would you expect a technology company company not to continue to evolve their security measures to keep up with security threats that we see. i would expect them to continue to improve their security. that's why it's important that all of us talk about it.
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it's not the company's job to worry about public safety. >> it's the fbi's job in congress's job and a lot of other folks in the government. i don't put that on the companies. the other thing that concerns me is the sense that if we have a world where people comply with a government warrant, it must be insecure. i don't buy that. there are a lot of providers today of e-mail service and tech service and we have highly secure system. because of the business model they visualize the information in plain text so can comply with court orders. i have not heard them say they have insecure systems. they just have a different business model. a lot of people may disagree with me. i don't think it's a technological problem. it's a business model problem. that doesn't solve it but it gets us away from the it's impossible nonsense. >> but we know more and more and were talking about it today, the growth of the internet of more more personal devices where security will be even more critical so it's hard to say you're talking about a world.
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i think that's not what were seeing paris see evolution every day and these are devices that are connected to networks and information and that information might be somebody's financial information or personal information that if it is exploited would create a security issue itself. >> don't you believe encryption has important role to play in protecting security. >> vital. >> so now we've talked about what role congress plays versus the other and you've talked about will both privacy and security but the court should decide whether or not there's a security breach if there's a piece of technology that breaks into a device and whether or not there's a concern that that will be widely available. yet contention isn't just about privacy and security, it's between between security and security and protecting people's information.
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so how do you think congress plays a role versus the court when you've talked about both of them in your testimony? >> i think the courts have a job to interpret the laws that congress have passed throughout the history of this country to try to decide if the government is seeking this relief and if it's within the statute. that's the court's job and they're very good at it. the the larger societal problem we have is this collision that you've talked about between privacy and security. it's very difficult to solve a case by case by case. we have to ask ourselves, how do we want to govern ourselves. if you provide medications in the united states, what are our expectations of you and demands of you? it's hard for me to see that being worked out on a common-law basis. :
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>> we recognize the gentleman from new york. >> thank you mr. chairman and thank you for your presence here today. i think one might colleagues
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mentioned your candor and open dialogue and communication is much appreciated. that is not always the case with high-level government witnesses and others. you testified today that you don't question apple's motive in connection with san bernadino cases that correct? >> that's correct. >> also testified there are note demons of this conversation, true. >> conversation, true. >> true, but not. >> the department of justice has question the motives is that right? >> they question their motives in the sense that they attributed that they are acting with evil intent or something. i think they filed sent that a lot of apples intention has to do with its market power which i don't think it is an illegitimate motive. >> the fact that the motion compelled you are referred to the prosecutor said apple's current refusal to comply with the court's order despite the technical feasibility of doing so appears to be based on its concern for business model in public brand marketing strategy. is that the state may you are referring to. >> yes.
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i think that's fair. that's accurate. apple has a legal obligation, used to be the general counsel to maximize shareholder value. they are a business. i. i would hope that as part of their motivation. it's not a bad thing that's entirely motivation. their job is not to worry about public safety. that is our job. >> william bratton is the police commissioner of the new york city department police department, is that right. >> yes. >> that's largest permanent country? >> yes. >> he is one of the most respective law-enforcement professionals in the country would you agree with that? >> i agree very much. >> at a february 18 press conference and publicly accuse corporative corporate responsibility are you familiar with that. >> i am not. >> do you agree with that statement. >> that apple isn't gauging a corporate irresponsibility quote ? >> i don't know if they said that i don't think they're acting a responsibility. i think
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they acting as a corporation in their self-interest which is the engine of innovation and interval innovation. >> those on the judiciary committee of those on the house and senate, guardians of the constitution this is not about marketing or corporate irresponsibility is that correct? >> this debate, i hope not. i hope part hope part of it is about the voice to listen to. but they cell phones, they don't sell civil liberties, public safety, public safety, that's our business to worry about. >> but in terms of our perspective, this is about fundamental issues of importance as a relay to who we are is as a country, the fourth amendment of the united states constitution, the reasonableness of government intrusion, the rule of law, the legitimate centuries-old concern as it relates to government overreach and the damage it can do. this is fundamentally a big picture debate about things that are very important as who we are as a country. >> i agree completely.
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>> in terms of the technology available today, american seem to have the opportunity to choose between privacy or unfettered access to data which has revealed the far reaches of their life to a third-party, to a bad actor, would you agree that there is an opportunity that this technology is provided for americans to choose privacy? >> i don't agree that for me because it sounds like you are framing it either as we have privacy or unfettered access by bad actors, don't accept that the premise. >> so let me ask a few questions. one of the obstacles to unfettered access is the pascoe, correct? >> yes. >> for six number pass code.
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>> i'm just stuck on unfettered, one of the access to device. >> let me drop unfettered. the pass code is an obstacle, correct. >> correct. >> now you can choose a pascoe or not to activate a pass code. >> i think that is right. >> whether you backup your system or not is an issue as it relates to access, correct? >> in other words if you don't backup your system you don't have access, correct? to the cloud. >> yes if you don't backup your system to the cloud there is nothing in cloud that could be obtained by warm. >> with respect to auto erase, that is a choice that is being may come in other words you have to actually affirmatively a choose auto erase if you do not choose it, this particular case or any other case, eventually your computer is powerful enough to get access to the data, correct question what mark. >> i think that is right for the 5c. folks with apple could tell you better. i think for for the later models it is not a choice. i reasonably confident is a transfer the 5c. >> my time is up i think is
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important as we framed this debate it is actually the american citizen that is choosing on at least three different occasions in three different ways the value of privacy. that that is something we should respect of congress attempts to craft a solution. >> the chair thinks the gentleman and recognize the gentleman from rhode island. >> thank you mr. chairman. thank you director for your service to our country. thank you for being here today and for the outstanding work of the men and women at the fbi. we all acknowledged incredible tour of the san bernadino attack, think think in many ways we are struggling with is not a surly security versus privacy but security versus security. the real argument and danger that exist for the misuse of this technology by foreign agents, by terrorists, by bad actors, by criminals, bike criminals, will make us less
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safe in the long-term. two achieve your objective oppose greater danger. at least i'm struggling with that. i appreciate that you said this is the hardest question you have confronted, think it is a hard one. the first thing our task is, this is different would you agree that all the examples that have been used about producing items in your custody? this is a different kind of warrant because it is actually compelling a third-party to produce and create intellectual property which does not exist today? >> i understand that to be apple's argument. i do not know enough about the possible other comparisons to give your response. >> it's hard to even imagine how a court ultimately enforces that, you have to get into the head of the engineers to figure out, did they actually comply with what the government order is directing them to create. i'm not saying it's not
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something you're not allowed to ask were but it is different it seems to me then simply asking people to produce that which they are in possession of, custodians of. >> i see that. i heard someone earlier say there's a difference between a landlord with a key in his pocket and you have to give us a key or if you don't have uncle make love that door. >> not just go make one, but to develop a new technology and intellectual property. i just raise that question because i think you have to acknowledge the different and then decide what to do with it. in addition to that you said repeatedly that government doesn't have the ability to do this already. as you know a decision was made yesterday by the magistrate judge and ask unanimous consent that are to be made part of the record, in which he actually. >> it already is part of the record. >> he goes there and says the all writs act does not apply and they -- in addition he goes on to say that the government
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argument in an unrelated case that the government actually has the ability to do this, the department of homeland security investigation, they are in possession of technology that would allow forensic technician to override the pascoe security feature on the subject iphone and obtain the data. this is a very important question to me, if in fact is in effect the case that the government does not have the ability, including the department of homeland security investigation and all the other intelligent agencies to do what it is that you claim is necessary to access this information? >> yes. >> that is correct. i could be wrong, i think the phone in the case from brooklyn is different. maybe both the the model and the ios, the operating system is different. again, with us on my my voice if you have an idea let me know. but five c, ios ios nine we do not have that capability to disable. the problem is we can get into the phone if they take
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off the auto erase and the delay between function. we will get into that phone. >> so do you agree that if there is authority to be given to do what you are asking that authority has to come from congress? >> no i don't agree with that. >> so where do you think the authority comes from. >> will the government has already asked the court and made the argument under the court and all writs act, to order this. that is what the court. >> if the really made yesterday remains which rejects the notion that the all writs act up and that it is in fact congressional attention on this and the fact that we did not act on it means you have authorization has not been provided there would you agree that congress is the only place that can authorize this, if so what would you recommend we do? what would that look like? as we grapple with this question because i can say for me having read that i think khalil is clear, doesn't authorize it, it
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clear that all writs act doesn't. it seems like it must come from congress as director of fbi what do you think that -- would be your recommendation be as you see is your needs but the national security interest of our country. >> i'm not prepared to make a recommendation. i get the question. if the judges are right that you cannot use the all writs act for this really what should congress do to grant relief? i'm not prepared to tell you specifically what to do. i think the congress will have to wrestle with it. >> thank you, yield back. >> the chair as unanimous consent that letters from the computer communication industry association dated february 29, statement for the recommend from rinaldo president of the fbi agent association and later dated february 109 from the civil liberties union i'll be made part of the record. directory of given us three --
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i'm sorry, the gentleman from california is recognized for five minutes. >> direct i want to thank you mr. chairman for being here. i want to conclude by saying i did hear and listen carefully to your opening statement i thought it was very constructive. i think you appreciate the two objectives we have which is both present privacy and deal san bernadino. you've heard that, at hard cases make bad law. it's still hard cases. the problem i see with terrorism now is the onesies and tuesday and the notion that we would have any vulnerable communication is something we should be concerned about. i hope that you and the panel would be part of a constructive conversation to serve both objectives and the lights will not be too hard john on either
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sides we can do that. i appreciate mr. chairman the chance to thank the director for being here. i you back. >> thank you. director, you have donated three hours of your time to our efforts today or more, sure. we thank you very much for your participation and for answering a multitude of questions. we are looking for answers so if you have more to add to the record later we would welcome that as well. thank you very much. >> thank you sir. >> chairman would you entertain a unanimous consent is a change in panel. >> i would. >> i ask unanimous consent of a letter i received late yesterday from a constituent in the technology business concerning this case be placed in the record, this is emily hirsch. >> without objection we will make a part of the record. i ask witnesses on the second part of the panel to please come forward and be seated.
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[inaudible] [inaudible] [inaudible] [inaudible] [inaudible] >> now that mr. sewall has been reported similar tension previously accorded to director, i asked that the press moved back so we can begin the second panel. >> mr. chairman i would not would not assume that was not directed from this landau. >> we welcome our distinguished witnesses for today second panel if you would all please rise, i will begin by swearing you in.
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>> to you and each abuse where that the testimony you're about to give shall be the truth, the whole truth, nothing but the truth, so help you god. >> i do. >> think very much at the record reflect that all witnesses responded in the affirmative. i'll now introduce the witnesses. >> bruce sewall is a senior vice president and general counsel of apple. he serves on apple's legal team and oversees all legal matters including global security and privacy. prior to joining apple he was deputy general counsel and vice president of intel corporation. he received his bachelor's degree from the university of lancaster and a jd from george washington university. doctor susan landau is a professor of cyber security policy at polytechnic institute. originally trained as a theoretical political scientist doctor landau's expert in expert
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in cryptographic application. within cyber security policy work focuses on communication surveillance issues, she earned a bachelor degrees from princeton university, a masters from cornell university, phd from the massachusetts institute of technology. our final witness mr. sires junior is a district attorney of new york county. he currently serves his second term as district attorney after being reelected in 2013. he also served as cochair of on sentencings. he previously worked in private practice and taught at seattle university school of law. he is a a graduate of yale university and georgetown university law center. all of your written statements will be entered into the record in their entirety and we asked that each of you summarize their testimony in five minutes or less. to help you stay within the time there's a time and light on the table when the light switches from green to yellow you have one minute to conclude your testimony.
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when the light turns red that is that, time is up. we'll begin with you mr. sewall, welcome. >> thank you very much mr. chairman. thank you members of the committee. >> make sure that phone is on a pole close. >> thank you mr. chairman, it is my letter to appear before you today area and we appreciate your invitation the opportunity to be part of the discussion on this important issue which centers on the civil liberties and the direct foundation of our country. i want to repeat something we have said since the beginning. the victims and families of the san bernadino attack have our deepest some of the. strongly agree that justice should be served and apple has no sympathy for terrorists. we have the utmost respect to law-enforcement and share their goals 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.
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when the fbi came to us in the immediate aftermath of the san bernadino attack, we gave 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 infested gate of alternatives. we find ourselves in external circumstances. the fbi has asked the court to order us to give them something that we do not have. to. to create an operating system that does not exist. the reason it doesn't exist is because it would be too dangerous. they are asking for a backdoor into the iphone. specifically to provide a software software tool to break the encryption tool on every iphone. as we have told them and as we told the american people public, building that software would not just affect one iphone it would weaken the security for all of them. in fact just last week the
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director, he agrees that the fbi would likely use this as a precedent for other cases involving other phones. we have heard from district attorney who also that he absolutely plans to use this tool on over 175 phones he has in his possession. we can all agree this is not about access to one iphone. the fbi is asking apple to weaken the security of our product. hackers and fabric and minerals can use this to recover on our privacy and personal safety. it was set a dangerous resident for the privacy and safety of our citizens. hundreds of millions of law-abiding citizens trust apple products with the most intimate details of their daily lives. photos, privacy conversations, financial account, information about a user's location and location of that user family and friends. some of you may have an iphone in your pocket right now and if you think about it there is probably more information stored on that device then is the could
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steal by breaking at your house. the only way we know to protect that data is through strong encryption. every day, over 1,000,000,000,000 transactions occur safely over the internet. as the result as the result of encrypted communication. these range from online banking, credit card transaction, exchange of healthcare records, ideas that will change the world for the better, and communication between loved ones. the u.s. government has spent tens of millions of dollars through the open technology fund and other u.s. government programs to fund strong encryption. the review group on intelligent medication technology convened by president obama urged the u.s. government to fully support and not in anyway several, weaken weaken or make vulnerable generally available commercial software. encryption is a good thing. we needed to keep people safe. we've been using it in our products were over a decade. as a taxon or customers data
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becomes sophisticated the tools we need to defend against them need to be stronger too. we claim encryption will hurt consumers and well-meaning users who rely on apple to protect their personal information. today's hearing is entitled balance in america's security and privacy. we believe we can and we must have both. protecting our data with encryption and other methods preserve our privacy and keep people safe. the american people deserve an honest conversation around the important questions stemming from the fbi's current demand. can we put a limit on the technology that protects our data and therefore privacy and safety and the fact the face of increasing cyber attack. should the fbi be allowed to stop apple or any company from offering the american people the safest and most secure products it can make? should the fbi have the right to compel a company to produce a product it is not a ready make
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to their exact specification and for the fbi's use? we believe each of these questions deserves a healthy consideration. most important in the decision should be made by you and your colleague as representatives of the people. rather than through war requests based on a 220-year-old statue. granting the fbi request with early undermined fundamental principles of the constitution. at apple we are ready to have this conversation. the feedback and support hearing indicate the american people do to. we feel strongly that our customers and their families, friends and neighbors will be better protected from these and terrace 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. thank you for your time. i look for to your question. >> thank you. miss landau, welcome. >> thank you mr. chairman a members of the committee, thank you for the opportunity to testify. the fbi pitch this battle a
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security versus privacy. as a number of members it is really about security versus security. we have a national security threat going on and we haven't solved the problem at all. what do smart forms have to do with the? everything. they hold our photos, music, notes and calendars much of that permission is sensitive, especially photos. smart phones are increasingly wallets and give us access to all sorts of accounts, bank accounts, drop boxes and so on. many people store proprietary business information on their smart phone even though they know they should not. an essay will tell you that login credentials is the most effective way to a system. in fact they said seven a public talk a month ago. here's what smart phones are extremely important. they are poised to become authenticated to a wide variety of systems. in fact there are already being used that way including in some
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high place government agencies. the district attorney will tell you that large-scale data breaches have nothing to do with smartphone encryption but that is not true. look look at today's new york times, where there is a story about the attack on the ukrainian power grid. how did it start? is started by the login credentials of system operators. we have got to solve the login authentication problem and smart phones are best way for to do it. not if it is easy to get into the date of the smartphone. the committee has already observed there many phones that will go through the process of being a marked, not just want to san bernadino. what that means for apple is that is going to have to develop a routine to do so. what happens when you have and find a piece of code to update a
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phone and your signing the pisa code that is an operating system where you do it once. you do it do it occasionally, it's a whole ritual and very senior people are involved. if you're dealing with phones that are daily being updated in order to solve law-enforcement cases than what happens is you develop a routine, get a web page, low-level employee to supervisor admitted becomes a process that is easy to denver. i have respect for apple security but not one of becomes a routine process to build an update for phone. will happen is organized crime or a nationstate will do so using an update to then hack into a phone, maybe the phone of a secretary of of chief of the federal reserve, maybe the phone of a hvac employee who is going to serve as the power plant. what we are going to do is decrease our security. that's that's the risk that is coming from the request. i get that law-enforcement wants data protection allows maximum under legal authorization. an nsa colleague once remarked that while his agency has the right to break into certain systems, no guarantee that right would be easy to do so.
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the problem is when he billed the way in for someone who is of the owner to get at the data you build away and for someone else to get in as well. let me go to clear for a moment. moment. clea is a security nightmare, i know congress didn't intend it that way but it is. if yes the intelligence people there tell you, there many ways for the various stores to take advantage of the opening offered by law-enforcement. instead of embracing the communication device and security we so badly need, law-enforcement is wanting to suppress 20 century techniques. meanwhile our enemies are using 21st technologies against us. you may recall within the late 1990s the nsa was complaining it was going deaf from encrypted calls. they've improved their technology a great deal. according to mike mcconnell from that time until the an essay has better thicken than any time in history.
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what we need is law-enforcement to develop 21st century capabilities for conducting electronic surveillance. the fbi has expertise but there not at the scale necessary. asking to weaken protection. congress can help, the fbi needs an investigative center with agency with a deep technical understanding of modern telecommunication and technology and also because all phones or computers, modern deep in expertise in computer science. researchers who understand first types of field devices. they need to know were technologies and where will be in six months i will be be at two-five years, communication technology and two-five years so they can develop the surveillance technology themselves. expertise need not be in house, the fbi could pursue a solution where they develop some of their own expertise and close
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contractors to do the work. however the solution they must develop moderns to their capability. your job is to help the fbi built such capabilities, determine the most efficient and effective ways that they can be utilized by state local law-enforcement they don't have resources and to also for that capability. thus way forward that does not put our national security at risk. and enables law-enforcement investigations while encouraging industry to do all i can to develop better technology for security data. that is a win-win and where we should be going. thank you. >> mr. vance, welcome. >> thank you. thank you so much for allowing me to participate today. i'm i'm testifying as a district attorney but on behalf of the national district attorneys association. i'm very grateful for you giving us the opportunity to be here
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because much of the discussion in the prior panel and in the comments by the other speakers here have been about the federal government and the issue of security and cyber crime and the federal context. it's important for us to recognize that state and local law-enforcement agencies handle 95% of the criminal cases each year around the country. we have a very deep interest in the subject matter of this hearing today and thank you for letting us participate. apple and google's decision to engineer their mobile devices to be worn as had an effect on public safety and privacy under our fourth amendment. i agree with everyone here including many members of the house that we really need congress to help solve this problem for us. that's why it's so important that your undertaking this effort.
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in looking at this issue there are basic backs from the state law perspective that are very important to this debate but not in this dispute. number one, as tim as tim cook said an open letter to his customers on february 16 of this year, smart phones, led by led by iphone have become an essential part of our lives. nothing could be more true, we are all using her cell phone for every aspect of our lives. number two, smart phones are also essential for criminals. our office investigates and prosecutes a huge righty of cases from homicides, sex sex crimes, international financial crime, including terrorism cases. criminals in each of those cases you smart phones to share information, to plan and commit crimes, whether it's through text messages, photographs, videos. number three, criminals know the ios eight operating system is warranted


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