FBI v Apple
A research resource developed by Professor Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics, Georgia State University College of Law
Back to Burge Chair Home Page: www.ClarkCunningham.org
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Congress has carefully regulated many forms of electronic data gathering by the government that may require the co-operation of private companies, such as telephone wiretapping, “pen registers” that monitor the numbers dialed from a telephone, interception of computer data transmissions, disclosure of email records, access to remotely stored data, and monitoring of communications sent via the internet.
Title II, Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2702(a)(2). See Matthew Sipes, Storage Wars: Greater Protection for Messages in Memory, 124 Yale L.J.F. 29 (2014); Ryan Watzel, Riley’s Implications for Fourth Amendment Protection in the Cloud, 124 Yale L.J.F. 73 (2014).
Within days after the San Bernardino order was issued, the Chairman of the Senate Intelligence Committee, Richard Burr, circulated proposals initially to create criminal penalties for companies that did not comply with court orders to decipher encrypted communications and later to create a civil requirement. However, as the tide turned against the FBI in the courts, media and views of the public, Senator Burr was unable to garner support from Congressional colleagues or even the White House. On June 29 the House Homeland Security Committee released a report reaching this conclusion: “Initially, lawmakers and some among law enforcement personnel believed the solution was simple: statutorily authorize law enforcement access to obtain encrypted data with a court order. Unfortunately, this proposal was riddled with unintended consequences ... [T]he best way for Congress and the nation to proceed at this juncture is to formally convene a commission of experts to thoughtfully examine not just the matter of encryption and law enforcement, but law enforcement's duty in a world of rapidly evolving digital technology."
H.R. 4528, Ensuring National Constitutional Rights for Your Private Telecommunications Act of 2016 (" ENCRYPT Act of 2016"), introduced Feb. 10, 2016.
-- Erin Kelly, Congress may block state laws mandating access to encrypted devices, USA Today, March 28, 2016 (“A bipartisan group of lawmakers in Congress is pushing legislation to bar states from enacting their own laws that would require manufacturers to maintain the ability to unlock encrypted smartphones. State legislators in California and New York have introduced bills to effectively ban encryption on any smartphone sold in their states. That has prompted members of the U.S. House to offer the ENCRYPT Act, which would stop states from adopting their own encryption laws. "A patchwork of 50 different encryption standards is a recipe for disaster that would create new security vulnerabilities, threaten individual privacy and undermine the competitiveness of American innovators," said Rep. Ted Lieu, D-Calif., who is sponsoring the federal bill with Reps. Blake Farenthold, R-Texas, Suzan DelBene, D-Wash., and Mike Bishop, R-Mich. "National issues require national responses.")
H.R. 4651, Digital Security Commisson Act of 2016, (introduced Feb. 29, 2016 by Homeland Security Chairman Michael McCaul and Senator Mark Warner ("McCaul-Warner Digital Commission")
-- McCaul-Warner Digital Commission website
-- Newt Gingrich & Jane Newman, A national debate on encryption — now, The Hill, Apr. 12, 2016 (Gingrich was Speaker of the House of Representatives from 1995-99, Newman served as the senior Democrat of the House Intelligence Committee from 2002-2008) (“The battle over the iPhone involved in the San Bernardino, Calif., shooting last year has ended in a truce. … But none of the questions at the heart of the encryption debate has been resolved. … That’s why members should use the Apple/FBI cease-fire as a chance to get smart. To start, Congress should pass without delay Rep. Michael McCaul (R-Texas) and Sen. Mark Warner’s (D-Va.) bipartisan proposal for an encryption commission.”)
-- Hillary Clinton Campaign, Setting the Rules of the Road to Promote Innovation while Protecting Privacy, June 27, 2016 ("Hillary ... supports Senator Mark Warner and Representative Mike McCaul’s idea for a national commission on digital security and encryption. This commission will work with the technology and public safety communities to address the needs of law enforcement, protect the privacy and security of all Americans that use technology, assess how innovation might point to new policy approaches, and advance our larger national security and global competitiveness interests.")
Upton, Pallone, Goodlatte, Conyers Announce Bipartisan Encryption Working Group, House Energy and Commerce Committee (Press Release March 21, 2016) ("The widespread use of strong encryption is important to protecting Americans’ privacy. .... Members will work toward finding solutions that allow law enforcement agencies to fulfill their responsibility without harming ... the privacy and security protections that encryption provides for U.S. citizens.")
Danny Yadron, Oregon senator threatens to filibuster any attempt to weaken encryption, The Guardian, March 30, 2016 (“Ron Wyden, a vocal privacy advocate, said he would ‘use my power’ to block legislation regulating what data tech firms must provide to investigators.”)
Mark Hosenball & Dustin Volz,White House declines to support encryption legislation, Reuters, Apr. 7, 2010
Compliance with Court Orders Act of 2016 (discussion draft released Apr. 13, 2016, not yet introduced) (Co-sponsors: Richard Burr, Chair, Senate Select Committee on Intelligence, Dianne Feinstein, Vice-Chairman, Senate Select Committee on Intelligence) (limited to crimes resulting in death, serious bodily harm, threat of death or seriously bodily harm, Federal crimes against minors, serious violent felonies, serious Federal drug crimes, or equivalent state crimes)
-- Steven Trader, Sens. Release Draft Bill Following Apple-FBI Encryption Fight, Law360.com, Apr. 14, 2016
Bipartisan Encryption Working Group Releases Roadmap, House Energy and Commerce Committee (Press Release April 21, 2016)
Upton Sets the Record Straight on Encryption Debate, House Energy and Commerce Committee (Press Release April 21, 2016)
-- Rep. Fred Upton, Deciphering the Encryption Debate, Apr. 26, 2016 (Chairman, House Energy and Commerce Committee) ("For months we have witnessed an intense and important debate between law enforcement and the technology community about encryption. While much of this recent debate has focused on the FBI and Apple, this issue is much bigger than any one entity, device, application, or piece of technology. At its core, this is a debate about what we, as a society, are willing to accept. If you have paid any attention to the debate, it might appear to be a black and white choice. Either we side with law enforcement and grant them access to encrypted technologies — thus weakening the security and privacy of our digital infrastructure. Or, we can side with the technology community and prevent law enforcement from accessing encrypted technologies, thus creating a warrantless safe-haven for terrorists, pedophiles and other evil actors. It is important that we move beyond the “us versus them” mentality that has encompassed this discussion for too long. This debate is not about picking sides — it is about evaluating options.")
H.R.5321, Stopping Mass Hacking Act, introduced May 25, 2016
-- Brendan Sasso, Lawmakers Scramble to Block Expansion of FBI Hacking Power: The Justice Department wants to be able to use a single warrant to hack thousands of computers, National Journal Daily, 2016 WLNR 15465228, May 20, 2016. (“Lawmakers in both chambers are working to block the FBI from expanding its power to hack into computers around the world. Democratic Sen. Ron Wyden and Republican Sen. Rand Paul on Thursday introduced the Stopping Mass Hacking Act, which would reject the FBI’s bid to allow individual judges to authorize remote searches of an unlimited number of devices located outside of their jurisdiction. Democratic Sens. Tammy Baldwin and Jon Tester and GOP Sen. Steve Daines have signed on as cosponsors.”)
Dustin Volz, Mark Hosenball & Joseph Menn, Push for encryption law falters despite Apple case spotlight, Reuters, May 27, 2016
Congressional Leaders: Bipartisan Encryption Working Group Making Progress, House Energy and Commerce Committee (Press Release June 22, 2016) ("Key Takeaways from Meetings to Date: Encryption is a good thing that safeguards Americans’ privacy and helps protect Americans from criminals and hackers. Members of the encryption working group see a range of obstacles to broad legislative mandates to require special access to law enforcement.")
Michael Macagnone, Senate Rejects Bid in Spending Bill to Extend Spying Powers, Law360.com, June 22, 2016 ("The U.S. Senate on Wednesday voted down an amendment [offered by Sen. John McCain] that would have extended the FBI's ability to use national security letters to obtain Ameicans' internet records without a court order")
Committee Releases Encryption Report, Going Dark, Going Forward: A Primer on the Encryption Debate: Report Lays Foundation for a Robust National Dialogue, House Homeland Security Committee (Press Release June 29, 2016)
-- Report: Going Dark, Going Forward: A Primer on the Encryption Debate (House Homeland Security Majority Staff Report June 29, 2016) ("Initially, lawmakers and some among law enforcement personnel believed the solution was simple: statutorily authorize law enforcement access to obtain encrypted data with a court order. Unfortunately, this proposal was riddled with unintended consequences ... [T]he best way for Congress and the nation to proceed at this juncture is to formally convene a commission of experts to thoughtfully examine not just the matter of encryption and law enforcement, but law enforcement's duty in a world of rapidly evolving digital technology.")