Going Dark

Questions for Apple

By Susan Hennessey, Benjamin Wittes
Tuesday, March 1, 2016, 12:35 PM

The House Judiciary Committee at 1:00 pm is holding a hearing at which FBI Director James Comey and Apple General Counsel Bruce Sewell will both testify on going dark matters. Here's the live video:

The other day, Stewart Baker wrote this sardonic but serious piece in which he posed some questions for Apple.

We have a few of our own:

  • What is your understanding of how China's 2015 Counterterrorism Law―which appears to require companies to provide decryption and other technical assistance―applies to Apple's iPhone under the new operating systems? Does it oblige you to do what you are declining to do in the US?
  • Does Apple expect to face such a requirement under China's Commercial Encryption Regulations?
  • In Apple's February 17 letter to the Eastern District of New York, attorney Marc Zwillinger listed nine cases in which Apple is litigating its refusal to provide assistance to the USG. Could you give us a similar list of pending proceedings in China?
  • Can you get this committee a list of any cases in which Apple has asserted immunity from liability under CDA § 230 for activity conducted by third parties using its systems?
  • Can you explain to this committee why Apple should be immune from liability for the activity of third parties on its systems while simultaneously engineering its systems to impair law enforcement's ability to investigate and prosecute criminal and terrorist activity by third parties?
  • Can you articulate Apple’s rationale for declining to provide the assistance requested in the EDNY, despite Apple’s decision to voluntarily retain the capability to help?
  • Do you believe there are any security implications at stake in the case in the EDNY? In other words, is Apple being asked to compromise its systems in any way by being asked to provide material that it retains the capacity to access?
  • Does Apple believe there is any mechanism of lawful government access whatsoever that does not, at least in theory, create a security vulnerability?
  • Does Apple oppose―as a matter of principle―any and all legislation which might require the provision of technical assistance to law enforcement confronted with an encrypted device?
  • Does Apple believe there is any federal law under which it can be compelled to provide any technical assistance whatsoever to the United States government?
  • Would Apple agree to be bound by the factual determinations―though not policy recommendations―of a congressionally authorized commission in which Apple was a participant?
  • Has Apple engaged in any form of lobbying, or meetings with members of Congress or the executive branch in an attempt to advocate for particular legislation or prevent the passage of such legislation? Can you provide the committee with a list of all such contacts, and an approximate dollar amount spent on such efforts?