Daniel Conley, the district attorney in Suffolk County, Massachusetts, testified Wednesday before the committee that companies like Apple and Google were helping criminals by hardening encryption on their smartphones. He echoed previous statements by the recently-departed Attorney General, Eric Holder.
"In America, we often say that none of us is above the law," Conley wrote in his prepared testimony. "But when unaccountable corporate interests place crucial evidence beyond the legitimate reach of our courts, they are in fact placing those who rape, defraud, assault and even kill in a position of profound advantage over victims and society."
Rep. Ted Lieu (D-CA), who described himself as a "recovering computer science major," provided one of the most forceful counter-arguments. (He is just one of four House members with computer science degrees.) Lieu also is a Lieutenant Colonel in the United States Air Force Reserves and served for four years as a member of the Judge Advocate General’s Corps.
"It is clear to me that creating a pathway for decryption only for good guys is technologically stupid, you just can't do that," he said, underscoring that he found Conley’s remarks "offensive."
It's a fundamental misunderstanding of the problem. Why do you think Apple and Google are doing this? It's because the public is demanding it. People like me: privacy advocates. A public does not want an out-of-control surveillance state. It is the public that is asking for this. Apple and Google didn't do this because they thought they would make less money. This is a private sector response to government overreach.
Then you make another statement that somehow these companies are not credible because they collect private data. Here's the difference: Apple and Google don't have coercive power. District attorneys do, the FBI does, the NSA does, and to me it's very simple to draw a privacy balance when it comes to law enforcement and privacy: just follow the damn Constitution.
And because the NSA didn't do that and other law enforcement agencies didn't do that, you're seeing a vast public reaction to this. Because the NSA, your colleagues, have essentially violated the Fourth Amendment rights of every American citizen for years by seizing all of our phone records, by collecting our Internet traffic, that is now spilling over to other aspects of law enforcement. And if you want to get this fixed, I suggest you write to NSA: the FBI should tell the NSA, stop violating our rights. And then maybe you might have much more of the public on the side of supporting what law enforcement is asking for.
Then let me just conclude by saying I do agree with law enforcement that we live in a dangerous world. And that's why our founders put in the Constitution of the United States—that's why they put in the Fourth Amendment. Because they understand that an Orwellian overreaching federal government is one of the most dangerous things that this world can have. I yield back.
"They have a job to do and it is in their interest to make access to data by law enforcement as easy as possible," he told Ars by e-mail.
"But I was surprised at their rhetoric stating that companies seeking to protect and encrypt Americans’ data from unconstitutional government intrusion are implicitly helping terrorists and criminals," he said. "That view reflects a fundamental misunderstanding of the issue. Private-sector technology companies are responding to the American people’s demand that our current out-of-control surveillance state be brought under control."
When asked to elaborate on his "technologically stupid" comment regarding backdoors, Lieu wrote:
Backdoors create unnecessary vulnerability to otherwise secure systems that can be exploited by bad actors. Backdoors are also problematic because once one government asks for special treatment, then other governments with fewer civil liberties protections will start asking for special treatment. In addition, computer code is neutral and unthinking. It cannot tell if the person typing on a keyboard trying to access private data is the FBI Director, a hacker, or the leader of Hamas as long as that person has the cryptographic key or other unlocking code. The view that computer backdoors can only be used by "good guys" reflects a lack of understanding of basic computer technology.
But, when asked what steps Lieu takes in his personal or professional life to protect his digital security, he simply responded: "That’s private."
The entire hearing, which runs two hours and 15 minutes, is viewable below.