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Eshoo backs Apple's resistance to FBI iPhone access

Congresswoman cites 'dangerous precedent' from court order forcing tech company to write access programming

A ranking member of the U.S. Congressional Communications and Technology Subcommittee said she supports tech company Apple's refusal to unlock an iPhone owned by a shooter in the San Bernardino killings.

Rep. Anna Eshoo, D-Menlo Park, said in a statement on Friday, Feb. 26, that the Federal Bureau of Investigation overreached when it went to court to force Apple to unlock the phone owned by deceased killer Syed Rizwan Farook.

The iPhone, which investigators found in Farook's car, according to news reports, is the property of his employer, the San Bernardino County Health Department, which consented to the FBI search of the phone.

But the FBI reset the phone's iCloud password, and it has been unable to unlock the phone. If the wrong password is entered 10 times, the phone's data may become scrambled, the agency has said.

The FBI sought Apple's help to unlock the phone, but Apple would have to create a new program to do so, the company has said, and it has refused to do so, citing grave future privacy-violation concerns for all Apple devices.

A writ sought by the FBI from a California district court orders Apple to create a program that would give the iPhone a "backdoor" so that the data can be retrieved. But Apple strongly objects to the court order.

CEO Tim Cook said in a statement that "the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create."

Eshoo agreed.

"As a veteran of the House Intelligence Committee, I've seen first-hand the heavy damage that occurs when big government exceeds the limits set by law," she wrote in the statement. "The trust of the American people has been severely diminished by many indefensible undertakings, including Cisco routers being intercepted and bugged by our government before being shipped; the allegations that German Chancellor Angela Merkel's phone and those of other world leaders were being tapped; and the CIA spying on the Senate Select Committee on Intelligence as it was investigating controversial detention and interrogation programs.

"What Congress would not legislate, the FBI is now seeking to accomplish through the courts," the statement reads.

The FBI's request sounds simple and reasonable, but the implications of this case extend beyond any one company or device, Eshoo said.

"The FBI has gone to court to force a private company to create a system solely for the purpose of the federal government to use whenever and however it wishes. This came about after the government missed a key opportunity to back-up and potentially recover information from the device by resetting the iCloud password in the days following the shooting," she said. "This is a stunning overreach of the FBI to demand that a private company create a new operating system with a 'swinging door' that the federal government can enter and exit without any rules whatsoever, whenever they wish.

"The access being sought by the government is a national security issue with global implications. If forced to comply with the Court's order, Apple would not just be unlocking one phone. It would in essence be ordered to also unlock a world where our personal information is vulnerable to attacks by terrorist organizations, rogue nations and others seeking to cause the U.S. harm and instill fear," she continues.

Congress has determined that backdoors endanger the country because they weaken security. Efforts to circumvent code that protects sensitive information on one device creates a dangerous precedent for future seizure of information and a pathway for unauthorized access of that information by hackers, foreign governments and terrorists, she added.

In an interesting twist, she quoted one of the country's most notably conservative Constitutional scholars, the late Supreme Court Justice Antonin Scalia.

In a 1987 case, Arizona vs. Hicks, Scalia wrote for the court's majority: "But there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all."

Eshoo acknowledged the importance of law enforcement, but mass access to surveillance by the federal government is not the answer, Eshoo said.

"Our Constitution calls on us to protect and defend against enemies both foreign and domestic. It also provides for the protection of the citizenry from the abuses of its own government," she said.

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