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tv   Key Capitol Hill Hearings  CSPAN  March 8, 2016 6:00am-8:01am EST

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>> and those others we can bring forward to a worldwide sharing
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of the greatest human endeavor in history. [applause] presidential leadership in this initiative would improve, extend come and celebrate the american exceptionalism in a way that no other policy or program could. cycling pathways to occupied mars must be organized progressively with a decision made to go now full throttle out. as we said standing as proud americans from our exceptional nation with the world behind us, we came in peace for all mankind. we americans do these things, think big, act on our dreams,
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then look back and bring the world along with us. so to this room full of leaders, let me say this isn't the time to venture outward again -- this is the time to venture outward again much further in space bringing humanity out to mars making history there as we americans have here. listen closely to my challenge. the president who appeals to the higher angels and takes us closer to the heavenly body we call mars will not only make history, he will long be remembered as a pioneer for mankind to reach, to comprehend, and settle mars. and if not now, when?
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and if not us, who? i appeal to you to take up the challenge and bring us all along from the wild blue yonder with giant leaps to this waiting island in the blackness of space. this is the time. this is our time. and this is your time. it's an honor to be here with you, and i salute those who have the courage to lead this great nation, lead it forward, taking the next advances which are our destiny. as ronald reagan said, we americans have a rendezvous with
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destiny. let's go for it. god bless america. [applause] your supporter and dedicated warrior, mars guy, buzz. [applause] ♪ ♪ >> up next on c-span2, debate about the use of encryption technology and smartphones. then a conversation on prison sentencing laws. the senate is back in and will continue work on the prescription drug addiction bill. live coverage at 10 eastern. >> homeland security secretary jeh johnson will testify about his agencies 2017 budget
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request. he will take questions from members of the sonoma security and governmental affairs committee. that's why today at 10 a.m. eastern on c-span. later, conversation about the role that state party split and national political campaigns. we will hear from party officials. live coverage from the brookings institution starts at 2 p.m. eastern also on c-span. >> next, a conversation on the fbi apple case involving the unlocking of an iphone belong to one of the san bernardino attacker to congressman ted lieu takes part in this discussion on smartphone encryption technology and national security. this event was hosted by the wilson center. >> okay. good afternoon, everyone.
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we are specifically here are watching to unchain arpan, president and ceo of the wilson center, a recovering politician. my role in congress for most of my nine terms overlapped the subject we are dealing with today, and it is my great pleasure to welcome good friends on this panel but first a shout out to my congressman and good friend ted lieu for joining us. had literally is my congressman. i am still a resident of venice beach, california, which i represent all those years and he represents venice beach, california, and other parts. and again ted, 20 years later, thanks for looking out for what was then my young son dan while you were a member of i guess the state assembly, or maybe the torrents of city council. we go way back. encryption is time to. it's important, and ted is one
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of the only members are to understand the bits and bytes, thanks to a bachelors degree in computer science from stanford. no one here has missed the showdown between apple and the fbi. jim comey says he needs apples help raking into the san bernardino gunman's phone. apple says complaint would endanger its products and american data everywhere. we should all care how this ends. we are in uncharted territory. the fbi wants him cooks and just to build a branded custom operating system. credits call it golf os. -- some called a golden key or a backdoor. director comey says it's a front door, lawful search for leads from a dead homegrown terrorist. be the way it's a battle over much more than one phone. manhattan district attorney says
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he has 175 apple devices sitting in new york evidence lockers that he cannot unlock. los angeles pd have several hundred more than apple has flagged more than a dozen cases across the united states where the fbi wants to crack down, to crack its and security systems. if apple unlocks one device, where will the line be drawn? the endgame, whatever it is, will impact your phone, my phone and millions of others. it could have huge consequences for american tech firms, american cops and spies in every american and probably every world citizens cybersecurity. as i mentioned this is an area i know something about her i was a senior member of the house intelligence committee on 9/11. i was briefed as part of the so-called any update on what was then called stellar wind which was the precursor to the bold
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telephone metadata program. i insisted then and believe now that security and liberty are not a zero-sum game. you get more of both or you get neither. to former congressional colleagues of mine, so lofgren, ma democrat from california, and darryl ice, republican, wrote in ipad yesterday for the "los angeles times." my hometown paper. they say the debate is too big for one courtroom. the conversation belongs to congress. and so here at the wilson center today we want to kickstart that dialogue. we have a rockstar program starting with congressman ted lieu complete on these issues on one of congress' few genuine techies. we are also pleased to welcome another good friend, kate martin come senior fellow at the center for american progress and former longtime director of the center for national secure the studies, and so i consulted regularly trying to wrap my old brain
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around these very tough issues. we also have susan hennessey. is she here? there she is. i can't see. managing editor of lawfare and former nsa nationals could agency lawyer. and david perera, cybersecurity reporter for politico pro who will expertly moderated the panel and introduce congressman lupu will make opening remarks. so one more shout out and that is to make him king in the blue sweater who would be hiding in the back if she could. she directs our digital futures program. i think everyone would agree that she is brought incredible tech expertise to the wilson center i don't know how children all this stuff. since i remember as a staffer on team harmon on capitol hill and i don't think she knew anything like this. but again the world wasn't like this and that's the point. the world is evolving managed by minute. we are going to stay on top or
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ahead of us at the wilson center, a digitally good news that a few people in congress are paying attention. so now please welcome our panel and our moderator. [applause] >> thank you so much for coming. we've done introductions. ted has a few things to say at the top and then we will dive into the conversation. just so you we will be taking questions from the audience after i've had a chance to exercise my ego a little bit and ask the panel some questions. >> thank you. it's such an honor to be here your let me thank jane harman and the wilson center for hosting this event. it was really an honor for me to grow up watching jane harman. i learned so much from her. i saw how she worked on a bipartisan basis to get things done in congress address our amazing leadership on national security. back then as i say, i went to
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sleep that night. perfect to find issues with congressman. so thank you for all you did for country. i'm honored to be here with this terrific panel. as congresswoman harman said i am a recovering computer science major. i know a little bit about cs issues but i served active duty in a force. i'm still in the reserves and when it comes to jervis i believe we should hunt them down and kill them. governments first priority is public safety. that's what i support apple's position. because strong encryption is a u.s. national security priority. i'm going to make just three brief points. i believe the fbi intentionally is trying to frame this issue as one of privacy versus national security. that is the wrong frame. the actual frame should be making some law enforcement investigations easier versus national security. if you look at our national security leaders none of them
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are saying yes let's put in backdoors. they are saying the opposite and it's quite extraordinary. you know have the secretary of defense saying that strong encryption is a u.s. priority. he is against backdoors and he also says we shouldn't do things best moments of anger and grief. because directly undercutting the fbi's message. but also michael hayden, former directodirector of nsa same basc support apple's position, strong encryption is used national security priority. that should be the right frame. do we want to make law enforcement job easier but then we can our national security? that's a debate. second point is, play on top of that all these issues such as privacy, such as the relationship between our government and you, how much do you want our governmengovernmen t to be able to compel you to take extraordinary action to assist law enforcement? let's say the apple team that developed the smartphone left,
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went to google, the fbi didn't compel google to do extraordinary actions to help break into an apple iphone? at what limit do we have? at what end do we want our government to compel people to take these actions to help law enforcement? on top of that we have effects on u.s. businesses abroad, and this is not going to affect smart phones year, not just here but countries around the world. the final point is because of how important these issues are we really should not let precedent be set and these issues be decide by unelected judges interpreting an 18th century statute. that's what the department of justice and fbi tried to do, can't use the all writs act, something best in 1789 and 20 is that to set precedent. up with the trumpet should be something that congress decides
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but once again it's about the look forward to answering questions and listening to my panel members. >> thank you so much. so that sets the stage a fair amount. in order to tackle this issue, pretty complex, a lot of moving parts. we decided we are going to divvy it up into a tale of three iphones. so we have the first iphone to set this off a lease in the context of apple and the cover try to get special access to apple device. and that is an iphone that's at the center or at the periphery rather of a methamphetamine distribution case in new york city. susan, can you quickly tell us what's going on? >> this is the case that you might have heard of over the past couple of days of a new york judge says fbi can't force apple to unlock an iphone.
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you might be confused that are multiple cases going on. this is a case in new york in the eastern district. what's really important to understand about that case is its in iowa's seven but the difference between an ios seven, there's a number pashtun ios seven. how the device is grid. important to understand is apple has the capacity to unlock the phone that to bypass the locking mechanism to extract the data. they maintain that capability voluntarily. they provide a service to the ios approximately 70 times in the past pursuant to an all writs order. they declined to do so in this case. they are challenging the use of the all writs act to compel the kind of assistance at question but it's important to understand where we are, sort of the questions about compelling them to write new codes. those arise in california some
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months later. i magically judge in newark has said this is an improper application of the all writs act. the department of justice has appealed and it will also go to the district court within the next couple of weeks. >> kate, should apple, it's done it 70 times before at the very least, unlock the iphone? it doesn't require it to code it's a special operatives which is what the fbi is asking for in the case of the san bernardino shooters, county issue. it wasn't his own iphone. should they do in brooklyn? >> so rather than directly answer your difficult question, i'm going to lay out what i think the issues are. i think first of all it's really important to note that this case and the san bernardino case are cases where the government, law enforcement has a warrant to get
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the information that it's seeking on the phone. and when you step back and we talk more broadly about the encryption debate, one of the things i think we have to keep in mind is that when law enforcement says, well, we only want to get access to information for which we have a warrant, that, in fact, that's not completely true. that there are many instances in which they want access to information and in which they don't have a warrant. so that's an important backdrop. so here they have a warrant which means that there is no fundamental fourth amendment problem in getting access to the information on the phone. the case really does resolve, revolve around application of the statute, the all writs act. the way the all writs act comes out is in wiretapping cases more
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generally, the congress has already required the telephone companies, for example, to provide technical assistance to law enforcement when they want to conduct a lawful wiretap with a warrant. >> through calea? >> no. it's just through, sometimes through calea but leah do something slightly different. the wiretap act itself, their sewer provisions of the wiretaps actor director by the telephone companies to give assistance in carrying out wiretaps. then we have the leah which was a statute that said they have to build the telephone systems in a way that they will be wiretap accessible, but we leave the details of that up to the telephone companies. none of the statutes specifically require companies
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to help the government in carrying out warrants apply to apple in this situation or to the iphone. and so the government is relying on the all writs act as a quote gap filler statue to say you have an obligation to help law enforcement facilitate this lawful search. >> can you voice an opinion? are they doing, is apple doing the correct thing by resisting the fbi request specifically in brooklyn, which s. is know to come is different one in san bernardino. >> i think apple is correct in requiring a court, rather than simply turning over information in response to a court order. i think it's more, i'm now going to state an unpopular opinion. i think it's more questionable
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whether or not it's such a slamdunk when one or the other. i think, in some ways, i'm not sure that i agree that we want congress to take this particular issue up right away. one of the things this particular issue, one of the things that the court can do, which the congress is not so great at, is look at the specific operating system, the specific ways in which apple would have to take steps to unlock that operating system, the specific reasons why the government needs the information and what the ward is for the information. -- the warrant. and the all writs act in some way so as to the court can look at all those factors, balance them and come to a conclusion about whether or not the court is going to compel apple to give
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assistance in this particular case. so i'm not going to express their view about that particular case. i do think that there might be some utility for those of us who care about privacy to recognize that the all writs act could have a useful role to play because it requires the involvement of a judge and it requires a particular showing by the government before it can invoke that assistance. >> ted. >> i actually don't disagree with you that congress should not take this up right away. which is what i am a co-author of legislation that chairman mccaul and senator warren introduce which put together an expert panel of very, very smart people to look at this issue, provide recommendations to congress. something that cox can do and courts can, look at a much
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broader issue and have lots of hearings, have lots of very intelligent experts, have people from the wilson center weight gain and weakened and craft policy. i believe we do need to take time on this it's very complicated. but on the new york case, i'll give you my answer. i support apple's position as does those judge in this case, judge ornstein, who wrote an opinion i thought was a pretty good opinion. he writes in the that he doesn't believe that the folks that passed the all writs act in 1789 intended to solve the debate then and end it there. we are in a whole new world in the 21st century at the 18th century statute to a 21st century problem i don't think is going to give as much confidence. i also just note that the fbi director wrote an open letter recently. how many times has the fbi director ever done that? he could have done that on this
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case which is much older than the san bernardino case. but they realized having, making prosecution of drug dealer versus privacy, that was not a very good friend for them. so i do think that there is some -- picking this specific case and to that, and to me that does seem inappropriate. >> i will do you imagine. i do think apple, so i think the first thing to note is there's nothing unpatriotic about apple challenging a court order. that's the right of an american company and if the company believes there's a defective process computes the right to ensure a federal judge take up the issue and tell them yes or no. so with that at the outset, judge ornstein's opinion which will certainly go up on appeal and we will get the ultimate answer on that, regarding the applicability of the all writs act. looked yes, the all writs act as a 1789 statute. the bill of rights is ratified
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to usually good we think that's pretty good law. the notion that laws die of old age just doesn't hold, like that's not come i think another way to refer to those laws would be bedrock principles, a foundation to the credit jurisprudence. it's important understand that a lot of ways to look at these things. the impor important thing aboute appliques is for our note security concerns there. apple has the software in question. they voluntarily engineered it. they protect it. there's been no intimation it's ever been compromised on that case. there is a warrant. i think it's important to understand what is happening in terms of the argument, in terms of whether or not congress has a role to speak it. what apple is asserting in the eastern district of new york is not the security concerns. is asserting the question of reputational harm. there are rules under 1977
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supreme court case this is a court can compel this type of third party assistance under a number of limited editions. can't be an undue burden, there has been necessities. again it's for a federal judge to decide if these facts any particular case and i think it's appropriate for a federal judge to make those determinations and they are better situated often. what apple is asserting in the eastern district is the all writs is not an appropriate application because all writs is supposed to be this gap filling statute. really this is a matter for congress to decide. congress should be speaking at who are stretching the scope of all writs beyond what feels comfortable to us. that might not be wrong. it's possible a judge might say that might be true but is is an appropriate application to apple itself is starting to assert these concerns about congress needs to speak in this area as a
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defense to being compelled to do something. something. i think when all site design it's time for congress to speak, it's important to sort of recognize the way that the role of congress usually being raised in the court process now that it's getting harder and harder to sort of separate but you out. >> judge ornstein, the judge in eastern dish of your, otherwise known as brooklyn, suggested in his ruling that congress has spoken. congress spoke through two ways, through calea. it ruled out the kind of tactical thing that the government is asking apple to do. it considered it and they rejected it explicitly through calea because calea said that you do not have to decrypt communications on the government's demand. it also classifies apple as an information service and sent specifically where apple is an information service and
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information services are excluded from the scope of calea. there's a number of reasons why calea does not apply. judge ornstein also said, this is maybe the weaker of his arguments, that congress has already spoken when it debated and rejected expansion of calea. >> right. i think this would put his position and and a perfect context, this isn't the next decision in what's been termed the revolt of the magistrate. it's very unusual for magistrate judge to issue an opinion at all. judge wednesday issued a 50 page opinion in this case. so ultimately a district judge will decide whether or not these somewhat novel legal arguments are valid. the more traditional understanding of calea, again a federal judge might decide otherwise is that calea applies to data in transit. it's an interception statute and what's at issue here is not
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implicated. sort of the larger issue of what congress says when congress does nothing is a difficult one to reconcile. so even within his opinion he cites the case president which says when congress doesn't say anything you can draw to equally tenable explanations for that, right? either congress affirmatively liked endorses the status quo or congress wants to change things in an aggressive way. >> ted, say nothing if you agree with susan. spent just the notion you can't sort of draw a conclusion whenever congress has not spoken. so that sort o of his teasing ot those other two separate arguments that he is asserting. >> i think it's important to understand the context in which this is happening. i believe congress did speak. the fbi tried to get this proposal through last year but they couldn't get a single member of congress to carry a
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bill that would do that. so my view is congress spoke by not accepting what the fbi and doj wanted to have happen. but there's another element to consider, which is courts interpret laws. courts don't have independent authority to make people do stuff. they can't compel you to take action. they need a source of authority which is a law. and in this case they are citing this all writs act, and what the judge is saying, i don't think that law would apply in this situation. if congress is just silent, the courts can't come up with its own authority to make you do something. they need some sort of a statutory basis to compel action. if congress decided i think that silence does speak volumes. >> let's move on to the second iphone in our tale of three iphones, and that is the one in san bernardino. kate, do you want to do the
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press he? >> sure. probably most of you know so i'll try to be sure, but specific. the fbi has the iphone that was used by one of the dead terrorists in san bernardino. that iphone belonged to his employer. so it has a warrant to access the information on the iphone, but it can't do so because the information on the iphone is protected by a passcode, and it has taken steps to get whatever information was on the iphone and was also in the eye cloud, they've gotten. so this is information that doesn't exist anyplace else. it under potential on the iphone of the dead killer.
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in order for that information to be accessed, what the fbi has proposed to the court is the following. that there are three mechanisms that apple has put in the operating system of that phone so that someone can't use what's called brute force, which is running every conceivable combination to find a pass code to break into the phone. and those features are that, they are quite clever action on thing. one is that if someone makes 10 wrong drives, the phone just blows itself up. no, it erases all the information on the phone. the second one is that if you
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want to try to, multiple times, to get into the phone, you have to wait between each time. so the fbi says that if that feature wasn't disabled, it would take them 26 years to try all of the different possible passcode. that if the third feature was disabled, which requires a passcode to be typed in manually by a finger, and instead the phone was configured so that the fbi could use an automated way of typing in a passcode, the fbi would be able, using brute force, to get access to the information on the phone in 26 minutes. so what the fbi has done is asked the court to use the all
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writs act to order apple to write the software that would disable those three particular features on this particular phone. there's been a lot of back and forth about how to get that do done. >> so in this case, apple is being asked not to just break into one of its products but to actually affirmatively do something no tech company has ever done, and that is write custom software for the federal government that breaks its own product. all writs at really applies here speak with right. so we are no now getting into kd of the heart territory, at least to my mind. this would be a novel application of the all right. they are being compelled to create something. i think it's important to understand the choice that is
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being made here and why. the government is not think they would have the capacity to write the code but it might be harder for them. they might have some unintended consequences, certainly apple is going to be better. the problem is what apple has created their devices they only run software that has been signed by apple's special signing key. there's been in this larger debate about encryption a lot of discussions about notions of key escrow, and the tech community has asserted strongly and recently that these are the keys to the kingdom if the u.s. government cannot be trusted to keep the site. >> you are talking about the conflict whereby companies would store the keys with a third party, retrievable by the government in circumstances such as this? >> exactly. that accompanied would be required to put its signing keys somewhere else. essentially what's happened is the government has said okay, we believe you. we don't trust ourselves with this key.
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we buy that we should not be messing with sort of encryption in the genuine sense of the word. we believe this is important equity to protect. the problem is is that if you don't give us the key you have to write the software because we can't sign the software in question. i think and sort of that context, while certainly a judge is going to have to decide, is this appropriate application of the law, it's important to understand what the trade-offs, why the government thinks that it might be reasonable to ask this kind of heightened assistance. because of course as with all laws as technologies change, we read into what the the laws and we see whether not they can be stretched. i think this is starting to raise questions of was this the intention of sort of the all writs gap building is there a gap? we are starting to get into the realm of really substantive law where we would expect to see
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statutes on the matter. there are certainly difficult legal questions in california. that said no matter what happens in california we are all collectively going to have to decide what we want the future to look like. and to my mind which really at stake in california is whether or not we want the scope of government access, of lawful government access to be dictated by our laws, by the fourth amendment, by courts, by warrant, by a neutral magistrate or if you want the scope of that access to be dictated by technology. reasonable minds can differ and there are all sorts of really complex equities on either side, but when you get down to the core values choice year, i think that's when using two sides that are really having difficulty sort of reconciling what i very deeply held notions. >> ted, are there constitutional issues at play?
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>> absolutely. i think it is unprecedented for a court to compel a private sector company to take extraordinary actions which is to great software that they do not have to weaken their own product. that is simply a legal issue spewing but not just under the all writs act. author perhaps this amendment a first amendment -- >> so alvarez is first and fifth in issues. they do say writing computer code is equivalent to freedom of speech, and that they shouldn't be compelled to do this speech. not sure what i think of that. i think they're stronger argument is the all writs act is not apply in this case particularly when the government comes fbi tried, congress rejected it. i think it's helpful to take a step back and think about not just apple. it's not just about this company.
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if this happen with a microsoft product, same thing would've happened. but also the american library association come in in support of apple. why are they involve? they don't see any limits to this. if the court interprets all writs act to compel this action, what's to keep the court from telling amazon, hey, you create software to identify for us people we think are suspicious based on the books they bordered and you send it to the fbi. you can imagine all sorts of actions the government can compel you to do is to assist law enforcement. my view is that private individuals and private sector companies are not an arm of law enforcement. i think this case raises very troubling issues about the relationship of our government to you. >> so i would just add that citizens and congressman raise the kind of larger policy questions, is that i think there's a riskier in connection with the approach that apple is
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taking. which is that if you step back for a moment and ask the question, well, who's going to decide, or who's going to access to information that's been encrypted, and when is the government is ever going to access to information that's been encrypted and how are we going to decide that? that's a very large question that has many subparts, depending on what kind of devices you're talking about, what kind of information you're talking about, which part of the government, what kind of process is undergoing an award or something else? easy step back and go, well, this particular case where the government has a warrant, there is no privacy interest at stake in connection with the date on the phone. do we have a real problem in
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compiling a company to help decrypt this information on this vote in these circumstances? so the problem as i see it is that whether or not congress has, in fact, already given the judge the power to order that kind of compulsion, as you said, congressman come in the all writs act. but if you step back and say as a society, do we want a judge to have that kind of power? i think the answer might well be, yes, in this particular situation. and what i am very concerned about is that apple and some of the other industries position is, okay, we are going to find -- fight this in court but if they lose in court it will give the fbi much greater ability to come to congress to ask for the
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kind of law that the all writs act does not. but in asking for those changes in the law, law enforcement and the intelligence community are likely to ask for much broader powers and are likely to ask for the power to access information when they don't have a warrant, but they just have a national security letter, or they just have a fisa 702 order, or many of the other times of authorities that gives the government access to and that's the danger that we run when, with all due respect, at the moment doesn't seem to me that we have the political context in which we will end up with, the wisest decision making process. okay, so i just say it, but this
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kind of problem. >> just to push back on that a little bit but i think one way to describe it is to say you don't think you'll get the law that you think is ideal. traditionally, we understand we express those values by voting for elected representatives. it's important to note congress is not obligated to pass a law that says apple at all companies shall compel. they could repeal deleo. the scope -- to leah. the scope of what congress is empowered to do on our behalf essentially limitless but it's only the constitution. i think it's important to realize whenever we see polls that said 49% or 51%, who cares which side is which, it's the roughly divided country on these issues at this point. the way we traditionally resolve these really difficult value
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decisions is we've elected members of congress and they vote and to vote on behalf of their constituents in a way they think are a noble discharge of that service. i'm always a little bit suspicious of the notion of, well, we walked a lot and we don't want to use the gap filling but it's because we're afraid they're going to pass a bad law. i agree there should be a careful consideration here that they're going in principle should be first, do no harm. that said, i think that, i'm always suspicious of sort of stall tactics honestly, because i think the fundamental democratic process is we have opinions and you guys vote. >> so i've got a really cool want to tell you about. i learned from jane harman to work on a bipartisan they spent
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a couple weeks ago i introduced the and to act with republicans and democrats. what this law does come it says states cannot mandate encryption backdoors in consumer products. because the of california and new york with state legislators introducing bills that were going to require companies like google and apple and so want to put backdoors into their products, and that made no sense because you can't have google make a smart phone just for california and not for kansas. so that's going to work its way through but i think that's a good law. so your notion, there is a risk that we could get the crazy lawyer for president there's all sorts of risks, but a think it's more important to note into specific san bernardino case when you talk about apple fighting court, they didn't pick this fight. if you read what happened, according to apple they write
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about the court's finding in a newspaper. they were working with the fbi. they provide a huge amount of assistance. they provided the engineers, all sorts of advice. and i think the fbi saw an opportunity to try to find a speech in a very particular way to try to get the american public on their side. and begin wins the last time you saw the fbi director write an open letter quick it wasn't addressed to the judge. if they were just concerned about this case on this phone, he would not have done. but he wrote an open letter to influence the american public which is fine. >> just to correct because he did publish that letter on -- he did write a piece back in july sort of put out the encryption challenge, talking about what law enforcement was like asking for ideas and support, for partnership, engagement. i think he has written sort of specific of the open letter in the past, entity think law
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enforcement has at least attempted to be sort of opened with her equities here. >> i want to ask a question by the all writs act to to take us back to look at because it's a law that sort of is at the crux of all this. the supreme court as i understood established, there's three basic test. they are's proximity to the shoot at hand. it is, would it be an undue burden, it is any necessity. let's talk about necessity. does that iphone, anybody actually think, have any evidence on that the fbi did truly has a compelling urgent need to do, to get at? especially given the wealth of metadata that the fbi already has been able to extract. they know who he is called, who syed farook culprit they know the content of this sms messages. they know what patsies download.
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they even have a backup copy of the iphone albeit one data back to october 19 but we are not talking about the huge gap. isn't it really just what an opportune for the fbi to make a point rather than to actually gather evidence speak with i have two reactions because this has been raised quite a bit. want is we don't want certain laws for law-enforcement really, really, really wants evidence and whatever they choose kind of want evidence. the rule is both decent weather not a judge says they can get and that's the role. a little bit i think while certainly the facts might be more friendly in one case for another, it might be more or less useful in front of the public conversation. i think it's important to understand we are attempting to help neutral principles. >> by the all writs access necessity. >> ss because when the government can do it so.
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it's the assistance in question is necessary. kind of the necessity you're talking about is whether or not law enforcement needs access. that goes to kind of how we all balance. it's totally reasonable that the american people decide this technology is important to our lives. the cybersecurity threat is massive, and we think that we are willing to accept the fbi not have access to some amount of information. my personal sense and also put on my former ic had for this, this assortment of weird terrorist event for a lack of a better word. it's kind of workplace shooting, kind of a terrorist event. it's really important that the fbi understand what happened, why it happened. there was allegedly sort of a fight at a party. were they playing this terrorist event for long periods of time?
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was this always the intended target? these are important things to which the phone would certainly have at least some value. i think the right question to be asking is, is not to be expected find a sleeper cell on his work phone. no, probably not. but this is a meaningful investigative lead. it's as important the lead kind of as any at least conceptually. this is the kind of investigative work we would expect from law enforcement. we would expect him to be investigating these crimes. that includes looking at the full. i'm always sort of suspicious on this question of how valuable is it. the question is, if it's of any value, then the larger discussion just becomes one of whether or not the law applies or not. >> kate, to look like you have something to say. >> well, i'm more skeptical of what the fbi was doing but if you go back a couple months, there was an internal process inside the administration about
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whether or not the administration and the white house would go to congress and ask for new laws to deal with a new encryption capabilities. the administration decided not to come and i think we have to remember why, and one of the reasons is because as secretary of defense and everyone up and below him, to the president, et cetera, has acknowledged, strong encryption is essential to maintain the security, or to create more security in the internet, and the internet is an essential component of our security. and it's made insecure and the companies who are working on encryption are making it more secure. so they decided not to go to congress, that the trade off did not require a new law. then we have the san bernardino. now we have an investigation
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which is an important investigation, but we don't have simply one little part of the investigation. we all of the sudden have an enormous public controversy created by the fbi on, you can't regulate the encryption should prevent us in getting access to the phone of this dead terrorist. so i think that the question of whether not there's anything really useful or necessary on that phone does go to what is the fbi trying to do here. it's quite legitimate for them to try to influence the public debate on encryption. but let's be clear that that's what they are doing more than trying to get the information on that particular phone. >> i agree this in particular
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case has sort of a particular emotional resonance. that's not the case that jim comey has been yelling about on the hill. he testified just two or three weeks ago at this point and jesse mentioned december but his buddy mentions another case. and ios nine from a woman eight months pregnant opened her door and she's murder. no leads in that case, no, i didn't get a. the family has given consent the phone. she has a detailed i'm on the phone to the fbi and certainly there is some evidence about whawhat you plan to do that dayn the phone and they can't unlock it. i don't think this is a case of the fbi trying to use kind of the most dramatic set of facts. whenever i personally think about how do i come down on these issues and where did my values -- >> that's the second most dramatic set of facts, the dead woman. >> right, but these are all real things. its regional to decide another value is more important but it's not reasonable to pretend as
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though people don't really care about investigating terrorist attacks. it's not reasonable to not pretend people are really murdered in this country that biggest issue with encryption is child pornography. people say that's fear mongering. that's reality. we might decide that as a nation, our online security values, where we think the future is going, the way we want our relationship with our government to look like, but that obvious we don't expect companies to provide this kind of assistance. but we have to do that eyes open and understanding what the trade-offs could potentially be. >> let's talk about the third iphone. this is a hypothetical iphone. this is an iphone apple could make that would actually make this argument about the san bernardino moved. it could put security features in the next generation of iphones but it would make it
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impossible for anybody to get in -- moot. there's some technical details about the disappeared would make a secure enclave, make one of the chips on inside iphone much more harder to update. we don't have to get into the technical details. is anything, is anybody going to say apple shouldn't do that. there should be a law preventing apple from making the iphone so secure that not even it can get into it? >> if they did that made we should ask apple to protect our national security secrets. i was on oversight committee last year having hearing after hearing of massive breaches in our federal government. for example, speed we will have a warehouse of iphones. >> security clearance of some 20 million records affected me personally. foreign government now has my most sensitive information.
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it was because of a lack of encryption and other strong cybersecurity offensive but we need to upgrade in both the private and public sector. keep in mind that virtually every federal employee has a smartphone of some sort, whether it is government issued for your personal and. they keep huge amounts of information on that phone. but he really wanted it easier for foreign adversaries to hack those phones? you don't and that's what our national security establishment has largely come out same strong encryption is a u.s. national security priority. we don't want to create vulnerabilities. i would be completely fine with future iphone that uses of this. >> i might surprise you on this. i'm sure there are some people that will say no, apple should not be able to great that phone. i think apple should be able to agree that phone. i think it would be a real mistake i did it take companies how to build their product that
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apple has an obligation to make the safest most secure forms they possibly can, weighing all other there is business equities along the way. i think even though the congressman is one of i think for people who have a computer science degree, sometimes congress waste into technical issues, some of your colleagues have less of a gentle touch but i think that kind of law probably ends up doing more harm than good. what i would think would be useful and clarify block of useful in clarifying the mine where it comes down, is a law that explains exactly the scope of the obligation looks like. coming from my background i'm very skeptical of the notion that there is such a thing as a phone you can't get into. i think that while certainly we are all going to have to accept the fact that they're certain information law enforcement isn't going to be able to see the future, there are other cases where there might be gaps.
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they will create a whole other set of problems, who can spy on you through your refrigerator and waffle maker and all these things. they are already thinking about this. so the vulnerabilities are going to continue to exist. really what's at issue in the, what's at issue in california is not an issue of encryption. it's an issue of lawful hacking. this is where it can be difficult to bring. while i whenever% agree with every statement both of you made on encryption i also think of the a terrible mistake to sort of put in genuine backdoors or force people to alter cryptologic features. that seems problematic to me the limited scope, limited though to access device hacking, requesting that companies% of law provided some level of assistance, i think the level should be dictated by congress and not all writs, was not the law might apply come whenever we get there that's probably the
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right solution. i think it is a way to find my way to this. i don't think it has to be kind of, it's 2016 and we're going to decide what the future looks like and off we go. i think we can take one step at a time. we can lower the tone of the rhetoric but i think things like, you know, federal preemption laws, that sort of stick of a character of so these issues are a good idea. i'm skeptical of commissions but hopeful. i think it is sort of a way to be collaborative, to be creative and to kind of take one step at a time. >> i want to make sure we have time for audience questions. >> i have no personal involvement in any of this, and no knowledge giunta is the average american citizen. first of all i think you made a
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very good point and may have missed is in the immediate the media but i don't number anywhere people talking about all these other cases. sounded to me like it was one case and maybe apple could just at one time and that was the end of it. but clearly it's nowhere near that. again, i didn't know that but maybe the rest of the public is smarter than i am and they need a but i missed it. but my question is, i'm not sure i understood what you all say because i'm not an expert in this come if there were 60 cases in new york or apple or someone agreed to let them have the information, why are they denying it on the 61st? if they have a great 60 times before. what about that case is different? did they just change their mind or is it a different legal issue? i'm not clear about that. >> the san bernardino case -- >> i was referring to the first case, the brooklyn case speak for our two questions in the eastern district case.
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the first is whether or not this is an appropriate use of the all writs act so a judge has determined it's not that, it will go up on appeal. .. >> they would suffer economic damage to their reputation in the long term. that implicates some sort of core understandings about civi


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