[Congressional Record Volume 162, Number 30 (Thursday, February 25, 2016)]
[Senate]
[Pages S1021-S1022]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SMARTPHONE SECURITY

  Mr. NELSON. Mr. President, on December 2, 2015, 14 innocent souls in 
San Bernardino were gunned down in a violent act of terrorism, and it 
involved one of these, an iPhone. This item has become ubiquitous, and 
a lot of us carry them around in our pocket. Yet almost 3 months later, 
law enforcement has not been able to fully access the iPhone--the one 
used by the terrorists in gunning down these 14 people. The information 
on this particular iPhone could shed some light on how he planned the 
attack with his wife and would obviously give authorities an 
opportunity to see if others were involved in the attack. The contacts 
in that

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iPhone could indicate whether there were other terrorists in the United 
States or abroad who helped them in that attack. Yet 3 months after 
these murders, the FBI cannot access the contents of the iPhone because 
a security feature on the iPhone potentially erases its contents after 
10 incorrect passwords are entered. The maker of the iPhone, Apple, 
says it would need to develop new software--software that it claims 
does not exist today--in order to disable that feature.
  If this security feature were to be disabled by Apple, the FBI could 
use what it calls ``brute force attack,'' which is the ability to run 
different combinations of numbers through the iPhone in milliseconds, 
to try to assess the different password combinations in order to gain 
access to the iPhone, but they still don't have access even though the 
court is involved.
  Last week a Federal magistrate judge ordered Apple to provide 
reasonable technical assistance to the FBI in order to provide access 
to the perpetrator's iPhone. Apple opposes this order, given the 
concerns that technology developed to intentionally weaken its security 
features could be abused if it is in the wrong hands. In other words, 
there would not be the privacy concern. They claim it would put 
smartphone users' data and privacy at risk. It is a legitimate 
argument. They also view the Federal magistrate judge's order as an 
example of government overreach.
  Well, in response the Department of Justice filed a motion in 
district court to compel Apple to comply with the magistrate judge's 
order, and because of the complicated nature of the issues of national 
security, individual privacy, which we value, and First Amendment 
questions involved, there will no doubt be prolonged litigation that 
may ultimately have to be resolved by the U.S. Supreme Court.
  I certainly understand the risk to Americans' privacy, as expressed 
by Apple and other technology companies, but I don't want to run the 
risk of letting the trail go so cold on this terrorist attack--and 
potentially other similar cases--that we lose this valuable information 
all because this is winding itself through months and years in the 
courts. In other words, we need to know what was behind this attack. 
Everybody recognizes that this was a terrorist attack. We need to 
obtain this information in order to get to the bottom of it and root 
out and see if there are other terrorists in the country planning to do 
the same thing so we can protect our people and our national security. 
There has to be a way that the FBI can get the information it needs 
from the terrorist's iPhone in a manner that continues to protect 
American smartphone users.
  Now, surely common sense can prevail here. This is why this Senator 
urges Apple and the FBI to work together in order to resolve the 
stalemate.
  Let me go back over this again. We have a dead terrorist. He and his 
wife killed 14 Americans. We have that dead terrorist's iPhone, and we 
have a Federal judge's order that says we have the right to get that 
information in order to protect the Nation and its people. It is just 
like if we had this terrorist, dead or alive, and we needed to get an 
order to invade that person's privacy to get into their home and get 
evidence to protect the Nation from other terrorist attacks. There 
would certainly be no objection to that. The judge's order would be the 
protector of that privacy. This is a similar situation, except the FBI 
has an iPhone and they still can't get the information in it.
  What if this terrorist were not an American citizen and this 
terrorist were illegally in the United States? Would the same standard 
apply? I think Apple would say yes. We can draw up the different 
scenarios, but the bottom line is we are going to have to protect our 
people. That is why this Senator urges Apple and the FBI to work 
together in order to resolve the stalemate. I understand that 
consideration must be given as far as the protection of privacy in 
people's iPhones. We have always found a way to balance our cherished 
right to privacy and our cherished right of securing ourselves and our 
national security, and that is what is needed in this case. The safety 
and security of our fellow Americans depend on it. Otherwise, when the 
next terrorist strikes--51 percent of Americans who have been surveyed 
today say they feel the government needs access to this information to 
protect against future attacks. If the next attack happens and 
information is on an iPhone, that 51 percent will soar and it will be 
very clear that the American people support the protection of our 
national security.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.

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