Yesterday’s Judiciary Committee hearing was both dramatic and surprising. I watched it live, from beginning to end, live-tweeting all the way.
If you are interested in the details of the hearing, if you want to get a sense of all the players and the tone of each interaction, take a read through my Twitter stream (starting with this one) and please do follow me on Twitter if you don’t already.
At a higher level, here are some takeaways from the hearing.
The hearing was really two hearings. The first half was a Q&A with FBI Director James B. Comey. Comey was surprisingly calm and reasonable. Though he was clearly on the other side of this issue from most of the folks in the room, he seemed to be interested in finding the right solution, a balance between security and privacy. His emphasis was on security, on the ability to investigate potential wrongdoing by terrorists, pedophiles, criminals of all stripes. But he understood the call for privacy. He did not diminish the other side’s arguments. He truly seemed to be seeking a middle ground.
The people asking the questions were the members of the Judiciary Committee. And there were a lot of them. Amazingly, they almost all were on the same side of the fence as Apple, the need for privacy, and the concern about overreach by the government. It was fascinating to watch each of them unfold their cases, get their questions answered, all within each person’s 5 minute time limit. They were all professional, had done their homework. Most were surprisingly tech-savvy and understood the real issues, what Apple would have to build to enable the FBI access to the San Bernardino iPhone 5c. The painful parts of the hearing occurred when you had to listen to someone ask questions who truly did not understand how all this works. Fortunately, those members were few and far between.
FBI Director Comey had some significant weak points. He was frequently on the wrong end of the argument, and he clearly did not know the technical details. When pressed for his take on something a little deeper, he relied on the argument that he has people that know the technology, sort of a “beneath my pay grade” feel. That particular issue really stuck with me and came up time and again. The FBI needs to modernize, needs a deeper understanding of the technology with which they are grappling. That knowledge needs to run deep and start at the top.
The second half of the hearing brought in Bruce Sewell, Apple’s Senior VP and General Counsel, along with Susan Landau, Professor, Worcester Polytechnic Institute and Cyrus Vance, the Manhattan District Attorney.
They each read a prepared statement (here are links to the statements from Sewell, Landau, and Vance).
Sewell was terrific. Professional, well spoken, calm, deliberate, all in all a perfect representative for Apple. At one point during the Q&A, Representative’s Sensenbrenner and Gowdy got combative, almost attacking Sewell. The sense was that Apple was complaining about existing policy and that Sewell should have come in with some replacement legislation. Sewell dealt with each of the attacks quite well. Time was on his side, as he only had to respond to each of them for 5 minutes. As to the notion that Apple should prepare legislation, that seems preposterous to me. Congress creates legislation. They should ask for Apple’s assistance, not expect them to show up and do their work for them.
But I digress.
The real star of the show, in my opinion, was Susan Landau. The sense I got was that she knew more about this topic than anyone in the room, by far. Her opinions were reasoned, she expressed legitimate concerns, and she came down 100% on Apple’s side here. If you watch one part of this testimony, fast forward to the second half and find places where the committee asks her questions. Apple should hire her. Even better, the FBI should hire her.
I was not a fan of Cyrus Vance. Granted, he was on the opposite side of this argument, but he seemed stubborn, and perhaps ill-prepared. That’s my two cents. Read his opening statement, watch the stream, draw your own conclusions.
Bottom line, I think the Judiciary Committee, as a whole, sides with Apple here. Surprisingly, if there is new legislation, I think it would be to prohibit laws that limit encryption, prohibit laws that require a back door. They get it.
They also spanked the FBI a bit here, accusing Comey of using the courts to do an end run around Congress. This part of the issue got a bit territorial. I suspect that was a mistake on the part of the FBI, since they really want legislation requiring all encryption to come with a Comey back door.
Good read… thank you!.. I couldn’t sit through it all. lol
The main problem with Comey is he’s only thinking about his own effectiveness (and that of the FBI) regarding the high-profile Bernadino case. He’s disregarding the larger ramifications his “Hail Marry” solution will bring. “As long as my ass is covered, to hell with everything else.” For an FBI Director, he has remarkable tunnel vision here.
Therefore, if you measure Comey on the success of the Bernadino case, then it shows him to be an incompetent investigator.
The President should publicly weigh-in on this and either support Comey’s strategy 100% or replace him with a more qualified Director. Particularly, one well versed in cyber surveillance and terrorism.
Good job! Thank you.
“As to the notion that Apple should prepare legislation, that seems preposterous to me. Congress creates legislation.”
Clearly you’re not familiar with ALEC and the contemporary model of legislation where corporate interests present their desires to Congresspeople along with a very big check and then if the check is big enough it becomes law.
Finding “a balance between security and privacy” sounds dangerously like finding a balance between having sexual intercourse and remaining a virgin.
I couldn’t figure out Sensenbrenner’s angle. He was fairly antagonistic with Sewell, but if you read some of his opinion pieces, he seems like he understands and argures for a position similar to Apple’s.
I’ve got to say that it’s refreshing to read a comment section filled with thoughtful posts.
Dave, unlike many here, I don’t think you (or Shawn) really get it. If you haven’t done so, please read Orenstein’s decision beginning to end. Comey comes across as reasonable and smooth, but the entire “privacy vs security” phrase is a false dichotomy which was created to make it look like that’s a “reasonable” tradeoff. It never was, and is not now, true that there is a “privacy vs security” tension. There is NOTHING secure about removing protections for privacy. Bruce Schneier has been writing about that false “tradeoff” for the past decade. You might try reading about it.
I’m with you. I don’t believe I ever promoted a privacy vs security balance. I was pointing out that Comey seemed to be seeking a middle ground. To be clear, I think the backdoor is a binary case. If it exists, it will be compromised.
OK, thanks Dave, but “Though he was clearly on the other side of this issue from most of the folks in the room, he seemed to be interested in finding the right solution, a balance between security and privacy. ” seems to imply YOU think a “balance” is the “right solution”, not that Comey does. You might want to clarify that wording.
I’m pretty hardcore on this issue, because I think we started down the slippery slope with the Patriot Act (or, perhaps more accurately, that’s where the slope we’re already on got really really steep.) and we’re rapidly marching toward runaway government power. (see how all the current presidential candidates, save Sanders have spoken on this issue).
This is not an exaggeration. Many laws have been passed in wording almost exactly as “suggested” by ALEC. The train is off the rails.
Excellent overview Dave! Sensenbrenner needs to hear from his constituency on how important people regard both their privacy and the security of their information. Gowdy is a peacock masquerading as a leader.
And not a very good looking peacock either. Although, I’m not sure if peacocks are mean and nasty,like, say, geese.
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