Congressman Ted Lieu’s official response to FBI vs Apple

First, a bit of background on Ted Lieu (from Wikipedia):

Born in Taipei, Taiwan, Lieu’s family immigrated to Cleveland, Ohio, where he grew up. Lieu graduated from Stanford University in 1991 with a B.S. in Computer Science and an A.B. in Political Science and graduated magna cum laude with a J.D. from Georgetown University Law Center in 1994, where he was Editor in Chief of the Georgetown Law Journal and received four American Jurisprudence awards.

He also served as a law clerk to Judge Thomas Tang of the United States Court of Appeals for the Ninth Circuit.

He has a computer science degree from Stanford and a law degree from Georgetown. A rare combination for someone in Congress. A combination that gives him more insight than most into the technical issues in this case.

And now this from his web site:

This FBI court order, by compelling a private sector company to write new software, is essentially making that company an arm of law-enforcement. Private sector companies are not—and should not be—an arm of government or law enforcement.

This court order also begs the question: Where does this kind of coercion stop? Can the government force Facebook to create software that provides analytic data on who is likely to be a criminal? Can the government force Google to provide the names of all people who searched for the term ISIL? Can the government force Amazon to write software that identifies who might be suspicious based on the books they ordered?

Forcing Apple to weaken its encryption system in this one case means the government can force Apple—or any other private sector company—to weaken encryption systems in all future cases. This precedent-setting action will both weaken the privacy of Americans and hurt American businesses. And how can the FBI ensure the software that it is forcing Apple to create won’t fall into the wrong hands? Given the number of cyberbreaches in the federal government—including at the Department of Justice—the FBI cannot guarantee this back door software will not end up in the hands of hackers or other criminals.

This is an incredibly complex issue. It’s about the back door, about weakening (breaking really) encryption. It’s about the peak of the slippery slope when the government requests an ability to breach one person’s privacy. It’s about national security and having the tools necessary to fight terrorism. It’s about the perceived “vs” in Apple vs the FBI. It’s about politics and capitalism.

Barring some compromise by either side, this case seems headed for the Supreme Court (by way of appeal to a district court judge, then to the U.S. Court of Appeals in San Francisco, then the Supreme Court). To what may well be a split down the middle, eight-person Supreme Court. This is shaping up to be one hell of an election.



  • I’m just guessing, but I doubt that such a case would make its way to the Supreme Court that quickly. I think the process will take much longer, unless the DoJ wants to try and fast-track it, claiming they need the information on the phone for “national security” reasons.

    And no one even knows if the terrorists used long passcodes, in which case the brute force method would be unlikely to succeed before humans are extinct.

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    • StruckPaper

      Agreed regarding time required to reach Supreme Court. Do not agree regarding second part. Not even a case of agreement or disagreement.

    • freediverx

      Yet another reason to elect Bernie Sanders. Clinton and Trump, not unlike Obama, would likely appoint Supreme Court justices who sympathize with government surveillance aspirations.

      • HiawathaJones

        Socialists around the world agree. They would never abuse surveillance. The historical record proves it!

  • Caleb Hightower

    I believe Director James B. Comey is an honest patriot, pure of heart, but the next FBI Director needs to have better cyber/IT qualifications.

    Comey’s approach is akin to a toddler unable to open the cookie jar, so he smashes it instead. But that action, now, also makes all cookie jars fragile and weak.

    Corey’s just trying to do his job and appear competent, but he has no technical finesse and he’s creating an larger problem for everyone just from his inability to solve this one problem.

    • StruckPaper

      Do not be fooled. FBI is not standing idle while waiting for Apple to capitulate.

    • freediverx

      Comey, like many others in law enforcement and criminal justice, are more concerned with getting high profile arrests and convictions than on actually protecting the public or serving justice.

      We’ve yet to see any credible terrorist attacks stopped by the government’s warrantless surveillance tactics.

      National security is a two-sided affair, comprising both defensive and offensive tactics. But the NSA’s and the FBI’s actions have made it all too clear that they are willing to abandon the defensive element (for which they get no political glory) in exchange for absolute offensive capabilities – even when those capabilities are in direct contradiction to the Bill of Rights.

      • Caleb Hightower

        I do agree that Comey is a bit of an opportunist, using the high-profile, San Bernadino, terrorist case as a lever to push his agenda of mandatory back doors in all electronic devices. He’s the guy that went after Martha Stewart for insider trading back when everyone and their bastard step child was doing it. Corey’s previous overtures on back-door access initially fell on deaf ears. Now it’s a national debate.

  • I thought the TSA was handling national security? What good will cracking this phone do?

  • Mo

    This is a complex issue that will be decided by people who claim it’s simple.

    How would you suggest Apple compromise on this, Dave?

    • Apple have already compromised by performing reasonable steps to assist. This request is not reasonable. Here is where the Citizens United decision that made corporations essentially people might actually prove to be helpful: Apple has 4th Amendment rights now. It is unreasonable to force this and ruin a company this large: its global sales will be affected negatively, it’ll bleed money and jobs, and the entire tech sector will suffer, thereby causing damage to the US economy in a time it is recovering slowly but surely from a recession.

      I believe Apple and the US people will win this if we can get people past the idea that giving up all security somehow makes us more secure. The idea that “it doesn’t hurt me and will catch a few bad guys, maybe” (that has been proven false) is a very dangerous one.

  • chjode

    Ben Franklin – “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

    The FBI and specifically James Comey can go pound sand.

  • HiawathaJones

    Unmentioned is that Ted Lieu is a Democrat. Always interesting when those who like Big Government actually meet Big Government

    • Despite your attempt to use a tagline, don’t forget it was a Republican president who created the “Department of Homeland Security,” one of the biggest increases in federal government in recent history (and also directly responsible for the sub-agency we all love so much, the TSA, amongst other things).

      • HiawathaJones

        Hi Janak, it’s a tag line because it’s true. I appreciate you pointing the DHS disaster and share your fondness for the TSA. Doesn’t take away my basic point. I have a feeling if Lieu was a Republican it would have been pointed out in Daves story.

  • It seems like the strongest argument Apple has is that the code the court wants them to write would be compelled speech, which is clearly unconstitutional. It would be like the court requiring a leading author of books about evolution to write a book about creationism and refute all of his work and ruin his reputation. It goes against every tenet of free speech. And code has been clearly ruled to be speech. You have to think of each line and type it and no two programmers would write the same thing.

    The Supreme Court often punts on cases like these by ignoring the obvious broader issue — the widespread damage to U.S. society that is done by destroying the personal security of so many Americans — and ruling on a very narrow issue like you can’t compel Apple employees to write what the government wants them to write.

    If you remember that the U.S. government can compel you to press your finger on a TouchID sensor to open your phone — because it is an action — but cannot compel you to enter your password — because it is speech — that is like a microcosm of the current case. The court has not required Apple to pick up a crowbar and bash in a padlock, they have required them to write many lines of code and publish an entirely new version of their copyrighted work “iOS” even though they have stated they do not want to write or publish such a work.

    If I had to bet right now, I would bet that is how this case ends: a ruling in Apple’s favor that they can’t be compelled by the government to speak the government’s words.