More in sorrow than in anger, Calbuzz regrets to report that on the issue of Apple vs the FBI both Kamala Harris and Loretta Sanchez are evasive, elusive and equivocating pettifoggers incapable of giving a straight answer to a straight question.
That is the conclusion to be drawn from our unstinting efforts to bring clarity to the positions of the leading U.S. Senate wannabes on the most crucial issue now pitting civil liberties against the power of the state: Apple’s resistance to the FBI’s demand for new software to let the feds break into the iPhone of the San Bernardino terrorist killer.
At a time when Sen. Dianne Feinstein has unambiguously (and wrongly, we think) come down foursquare on the side of the FBI, it was more than a little depressing to watch Harris and Sanchez bob, weave and duck when we asked each whether, as a U.S. Senator, she would or would not defend a California company against an unprecedented law enforcement demand.
As the transcripts show below, there are small differences between the two in terms of emphasis and process: Harris, implicitly criticizing Feinstein’s stance, suggests there should be a negotiation between Apple and the FBI to find a solution (hey, why not try that with the Israelis and Palestinians while we’re at it!). Sanchez says she supports Apple’s right to appeal (How brave is that!) but that the answer is for Congress to hold hearings and then do . . . something.
Done on the fly at last weekend’s Democratic convention, the brief interviews are worth a quick read, if only to get a sense of the dodgy language and behavior in store from whoever wins the seat now held by Barbara Boxer. (Note — Boxer had been silent on the issue, as far as we know until we asked for her position and got this weasely statement: “We have to find a way to prevent a crime — whether it is terrorism or murder — by getting into a phone without jeopardizing security and privacy for everyone. It needs to happen on a case-by-case basis, and each case should be decided in a court of law.”)
We caught up with Sanchez at her Friday night welcome party for delegates. Harris was a bit more of a challenge: we had to pull an old school Sam Donaldson ambush on her as she sidled out the back door of the San Jose Convention Center after a brief appearance at her own Friday bash, heading for a black SUV parked at the curb.
It would be fair to say that she did not seem delighted to see us.
Calbuzz: We’re told that you haven’t taken a firm position on Apple versus the FBI and we can’t believe that the Attorney General wouldn’t take a position. Where are you on that whole thing?
Harris: I don’t think it’s that simple so I’m not going to chose one over the other because it’s not that simple.
There’s no question that we’ve got to figure out what we’re going to do in terms of protecting peoples’ privacy, that’s the work that I’ve done as Attorney General my entire career as Attorney General and I have a lot of examples of that work. But most of the progress that we’ve made has been because we’ve brought the technology in to sit down and deal with their responsibility and knock heads when we have to.
We did that over mobile apps we’ve done it on the work that we’ve done on cyber-exploitation. That has to happen. There has to be some understanding and some give that’s going to be the result of these two groups coming together to figure this out.
CB: But they’re not coming together, they’re in court. Do you feel that the FBI has a legitimate position to say that Apple’s basically got to invent this new software in order to get into the phone?
KH: I believe we’re always going to see a tension between the need to protect individuals’ privacy and the need for law enforcement to have the tools that we need to investigate crime and hold people accountable. That’s always going to be a tension.
CB: If you were in the U.S. Senate, you’d be expected to say whether you think the FBI is overreaching here or not or whether you are defending a company from California.
KH: I am the Attorney General of California and based on everything I know, I can tell you that it is not that simple. So that’s my answer and there are a lot of variables that have to be discussed and figured out and it’s not as short as picking a side. That’s not the answer.
CB: Well, somebody’s going to pick a side in court, aren’t they?…C’mon, when you weigh those two things (privacy vs. law enforcement) where’s the 51% and where’s the 49%?
KB: It depends on the facts of the case. It’s not that simple
CB: Are you familiar with . . .
KH: I gotta’ go.
All righty, then.
Calbuzz: Where do you stand on Apple versus the FBI?
Sanchez:. You know, if you look at the history of Apple, when we have had a warrant from the government asking for information, they have generally tried to comply with that. My understanding is that this is a different issue and I really do believe it’s a new issue.
And the issue is that of the policy implications of, do you go back, when you’ve made an airtight system so that hackers and others don’t get into it, do you go back and make the key to open it up? And if you open that up does it make you more susceptible to hackers and others.
It’s new ground on the issue. And I believe that Congress is more capable of holding hearings, of investigating, we have the budget to do that. The court system opines on a very narrow issue in one case, I mean it really takes into account one thing…
I completely agree with Apple that if they want to go back into court and appeal that they should. They have the right to do that and they should go and do that. But the reality is that I think Congress is more capable and really should take this subject up of this new ground-breaking: Do we require someone to make a key if they’ve never had a key.
CB: Isn’t that the difficulty in the whole thing, that the government is trying to compel a private business to create a product that they have not created?
LS: Exactly. And I think that it’s new ground and that the Congress should study, we certainly have the investigative funds to do that that the courts don’t have and that’s a responsibility of some of Congress to look at the implications of that.
CB: So are you saying the FBI should back off until Congress has had a chance to look at it?
LS: No, I’m saying Apple should appeal what is going on and I think Congress should take this up and investigate to decide what the policy implications are.
CB: In the meantime, should the FBI back off, or what?
LS: Well, the executive branch is going to do what the executive branch does. I think they’re not going to back off. But certainly Apple has the right to, and should, appeal and I think Congress should take it up as an issue.
CB: So as a U.S. Senator, going into hearings, would you be looking through the lens of protecting a California company or would you be looking through the lens of supporting law enforcement?
LS: Well, if you look at other votes that I have taken, for example, there were some really great things in the Patriot Act, but I have voted against the Patriot Act and its continuation consistently in my time in the House because I am a big believer in civil rights. So that might give you an indication of which way I might approach it but it all depends on the issue at hand and what we find out about it.
Then she was whisked away by an aide and we headed for the free cookies.
Late breaking news from Politico:
A federal magistrate in Brooklyn, New York, has denied the government’s application to force Apple to help law enforcement gain access to an iPhone belonging to a man who pled guilty in a meth conspiracy.
The ruling is likely to bolster Apple’s resistance in California to a separate FBI request that the company help investigators circumvent security features on an iPhone used by one of the terrorists in the San Bernardino shootings.
In the New York case, U.S. Magistrate Judge James Orenstein rejected federal prosecutors’ claim that a 1789 law authorizes the government to obtain a court order seeking to bypass a passcode-lock on an Apple phone.
“Nothing in the government’s arguments suggests any principled limit on how far a court may go in requiring a person or company to violate the most deeply-rooted values to provide assistance to the government the court deems necessary,” Orenstein wrote.
Apple originally cooperated with prosecutors in the Brooklyn case, but reversed course after Orenstein asked the company’s lawyers to weigh in with a formal legal position.