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Apple v. FBI could pit Franken against Klobuchar — respectfully, of course

Franken has built a reputation in the Senate as an advocate for privacy, while Klobuchar’s background as a prosecutor makes her more sympathetic to law enforcement’s concerns.

Protestors demonstrate in support of Apple outside one of the company’s retail stores in Santa Monica, California.
REUTERS/Lucy Nicholson

WASHINGTON — The past week has seen a messy feud play out between the country’s top law enforcement agency and its most valuable company: the Federal Bureau of Investigation and Apple have gone to battle over whether or not the tech giant should be required to help authorities access the protected data of terror suspects.

On Capitol Hill, the fight has split lawmakers into two camps: those who believe Apple should cooperate with authorities to advance criminal and terror investigations, and those who believe that the limits in place are appropriate, and harbor continuing concern over the scope of government access to private data.

If hearings and legislation materialize in Congress, as many expect, Minnesota’s two Democratic senators — a friendly duo who agree on the vast majority of issues — could find themselves in prominent roles on opposite sides of the debate.

San Bernardino shooter’s iPhone sparks latest debate

The latest installment of the ongoing privacy-versus-security debate was launched on February 19 by a federal judge in California, who issued an order mandating that Apple help break into the iPhone of Syed Farook, one of the perpetrators of the San Bernardino shootings in December that left 16 people dead.

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The FBI wants to access the information on Farook’s iPhone, which is currently passcode-locked. Authorities don’t have any way to hack into it without the phone eventually self-wiping all of the data it holds.

The feds are asking Apple to build a tool that would help them unlock the phone — but the company has said before that it isn’t able to get around its own encryption. Apple CEO Tim Cook responded to the judge’s order with an open letter in which he claimed his company could not, and should not, give authorities a so-called “backdoor” into its devices.

At the center of Apple’s argument is the concern that the government is forcing the company to build something like a master key — a way to decrypt protected data that could apply to any phone, not just one that belongs to a terror suspect.

The tech giant’s Silicon Valley peers — Google, Facebook, Twitter — have rallied to Apple’s defense, echoing the concern that complying with the court order would enable a whole new form of government data collection. Microsoft founder Bill Gates, however, has taken a more moderate stance, saying that the government has abused its data collection tools in the past but also that the government shouldn’t be “completely blind.”

But federal officials have forcefully disputed Apple’s arguments, saying they’d only use new technology for a handful of serious cases. FBI Director James Comey insisted that decryption wouldn’t be a backdoor or master key, and suggested Apple — which has cooperated with law enforcement before — is simply making a publicity play.

Franken and Klobuchar take opposite, cautious approaches

For now, this battle will mostly continue to play out in the courts, where lawyers representing the FBI and Apple are debating the extent of the company’s obligations to assist law enforcement.

But both parties believe Congress has a role to play. Apple would like to see an exploratory commission formed on the issue, and its lawyers reportedly plan to argue in court that it’s up to federal lawmakers to pass new laws if they wish to require Apple to comply. Top brass at the Department of Justice would welcome such laws — but passage seems unlikely in a deeply divided Congress during an election year.

That won’t stop lawmakers from holding hearings, though, with each side aiming to influence the court of public opinion if nothing else. And in those hearings, two members of the Senate Judiciary Committee who also happen to be Minnesota’s representatives in the Senate will likely find themselves on opposite sides of the argument.

On the side of Apple and privacy advocates is Sen. Franken, the ranking Democrat on the Senate Judiciary panel on Privacy, Technology, and the Law, who has historically been skeptical of efforts to access protected data.

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In a statement to MinnPost, Franken balanced sympathy for Apple’s case with an acknowledgment that law enforcement has an investigation to conduct. “As I’ve always said, I strongly believe that Americans have a fundamental right to privacy,” Franken said.

“I fully understand why the FBI wants to get the information contained on this phone, but Apple has outlined what I believe are very serious concerns about what that could ultimately mean for consumers’ security and privacy.”

On previous occasions, Franken has forcefully defended privacy rights in the face of similar arguments from federal officials. In July 2015, at a hearing on encryption with FBI Director James Comey and deputy attorney general Sally Yates, Franken suggested federal authorities were inflating the importance of encryption, and questioned why they did not have hard data on how often Department of Justice officials ran into technological barriers in investigations.

According to the Hill, Franken appeared “frustrated” with the officials. “We need to think about how we think about this,” he told them.

According to Mark Jaycox at the Electronic Frontier Foundation, Franken is “one of a handful of senators who shows he understands tech issues,” and made it clear he hopes the senator will play a leading role. “I expect [Franken] to speak up on these issues because of his deep knowledge.”

Minnesota’s senior senator seems more sympathetic to the FBI’s case.

In a statement to MinnPost, Sen. Klobuchar struck a similar balance between security and privacy, but, like Franken, her particular point of view showed through. “As a former prosecutor, I am very familiar with the challenges law enforcement faces in obtaining the evidence they need,” Klobuchar said, adding that “very real risks have been presented as criminals and terrorists are constantly trying to utilize the latest technologies to evade capture and conviction.”

She did say, though, that “any proposal that would limit data security available to the public could impede efforts to protect American businesses and consumers from cyber-attacks by criminals and foreign governments.”

Previously, Klobuchar has come down harder on tech companies. In a Medium post from last fall, Klobuchar outlined as a plank of her national security platform that seemed to anticipate the Apple case. She wrote that the U.S. should not allow “technology to limit our intelligence agencies’ abilities to pursue terrorism investigations when done legally under court order.”

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“New technology installed by the phone companies and other communications companies has made it technologically impossible to access communications of and data on many of the terror suspects,” Klobuchar wrote. “It is imperative to our national security that companies responsible for promoting this type of encryption work with law enforcement to ensure that legitimate counterterrorism investigations are not unduly hindered.”

Minnesotans in the middle

Some of Klobuchar and Franken’s Senate colleagues have been less circumspect on the FBI-Apple debate.

Sen. Dianne Feinstein, a California Democrat and vocal law enforcement advocate, will reportedly introduce encryption-related legislation soon. She, along with Republicans like North Carolina Sen. Richard Burr, say they plan to take action if Apple doesn’t do what the feds want. “Apple is actually breaking the law,” Burr recently proclaimed.

Privacy hawks like Oregon Democratic Sen. Ron Wyden have forcefully defended Apple, arguing that weakening existing privacy structures would make make Americans vulnerable to foreign hackers. “If criminals and hackers can get [Americans’] information, because strong encryption has been gutted by their government, those criminals and hackers can use [the vulnerability] to hurt Americans,” Wyden told the Daily Dot.

The strident positions taken by their colleagues may make the more moderate Klobuchar and Franken instrumental in whatever solution Congress might reach.

Neither senator is an ideologue: while each has a fairly clear point of view on the encryption issue, both Franken and Klobuchar signaled an understanding of both sides’ arguments and a potential willingness to compromise.

Both senators welcomed the chance to hear more from Apple and law enforcement. Apple’s Cook and the FBI’s Comey have been invited to testify before lawmakers, though no hearings are currently scheduled.

Klobuchar said she hopes “both sides will come together to find a solution.” Franken said he hopes both will come to “explain the issues at stake to the American public… I remain hopeful that there’s a way to square this circle.”