Black caucus treads carefully into Apple-FBI fight

Greg Nash

The Congressional Black Caucus is taking a cautious stance in the fight between Apple and the FBI over a locked iPhone even as prominent civil rights groups rush to back the tech giant.

“We have not taken a position on it,” Caucus Chairman G. K. Butterfield (D-N.C.) told The Hill this week.

The case has raised significant civil rights concerns, and other prominent African-American leaders and Black Lives Matter supporters are lining up behind Apple in its defiance of an FBI court order directing it to unlock the iPhone of one of the San Bernardino shooters.

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Those activists say an FBI win would set off a slippery slope of intrusive government data requests that would most directly affect minorities and political activists.

But the CBC says it has no plans to issue a letter or statement similarly siding with Apple.

Instead, several CBC members said they believe they can help find common ground in the divisive fight that has pitted law enforcement and the government against the tech community and privacy advocates.

“We have a different role than our civil rights leaders and others,” said Rep. Cedric Richmond (D-La.), a CBC member who is also ranking member of the Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies.

“We have responsibilities to go into our SCIF [sensitive compartmented information facility], our confidential briefings, our classified briefings and make sure we’re getting all the information.”

Apple last month rebuffed an FBI court order asking the company to create software that would allow the agency to hack the phone used by Syed Rizwan Farook, one of two assailants who killed 14 people in last December’s terrorist attack in Southern California.

Such software, Apple argued, is tantamount to a dangerous “backdoor” that would allow hackers to crack all iPhones’ encryption. Complying would also set a troubling precedent that empowers law enforcement to force other companies to undermine their security, the company added.

Civil rights leaders and activists quickly picked up on these sentiments, injecting a new voice into a long-standing fight between tech and government.

“In the context of white supremacy and police violence, Black people need encryption,” tweeted Malkia Cyril, director of the Center for Media Justice. The racial justice group that signed on to a letter defending Apple sent to Magistrate Judge Sheri Pym, who is overseeing the case.

The Rev. Jesse Jackson swiftly became a vocal Apple backer as well, praising CEO Tim Cook at a company shareholder’s meeting and then writing his own letter to Pym.

“This case cuts right to the heart of our right to live free from unwarranted government surveillance,” he wrote.

CBC member Rep. Sheila Jackson LeeSheila Jackson-LeeDems sustain protest as GOP angles to start recess early House erupts as GOP tries to halt Dems' sit-in House caucus to focus on business in Latin America MORE (D-Texas) called this input “vital” to the debate.

Racial justice activists are defending the constitutional concerns raised by the case, Jackson Lee said.

These are “voices who typically look to the Constitution for privilege, permission and for protection,” or “the three p’s,” said Jackson Lee, who has worked on cybersecurity legislation and is the top Democrat on the Subcommittee on Crime, Terrorism, Homeland Security and Investigations.

Black Lives Matter organizers argue secure devices allow them to exercise their First Amendment right to free speech, while shielding them from unreasonable searches and seizures, per the Fourth Amendment.

CBC members recognize that the outcome of the Apple-FBI case could endanger those “three p’s.”

“I understand the slippery slope that gets created once you open a backdoor,” Butterfield said.

“I do share Apple’s concern that if we create the technology [the FBI wants], then we may be opening Pandora’s box,” Richmond said. “That’s the biggest concern.”

But CBC members have competing concerns in the case. They also appreciate the FBI’s counter argument that encryption has left authorities increasingly blind to criminal and terrorist plots.

“Right now I’m personally against opening a backdoor, but I’m also in favor of national security and I’m hoping that they can find a compromise without creating a backdoor that can be used in other instances,” Butterfield said, representing the middle-ground approach several CBC members expressed.

The issues at hand are “very nuanced,” Richmond said.

The Louisiana lawmaker has been personally involved in a similarly complex case in his district with a locked iPhone at the center.

Brittney Mills, a Baton Rouge woman who was eight months pregnant, was shot to death last year on her doorstep by an unknown gunman. Mills’ personal diary is on her iPhone, and the family has asked police to open it. But Apple’s security has stymied investigators.

Richmond recently invited the Mills family to a House Judiciary Committee hearing where FBI Director James Comey and Apple General Counsel Bruce Sewell were testifying to highlight the personal nature of the conflict at hand.

“I think what we need to do is make sure all sides are still talking to each other and figure out if we can find that respectful balance,” Richmond told The Hill.

“But I’m not sure that we found it yet,” he added.

That creates an opening for lawmakers willing to bridge the gap between the two sides, CBC members said.

“There’s a good need for people with this interest to sit down and see if there’s a way forward on this,” Rep. Bennie Thompson (D-Miss.), the top Democrat on the Homeland Security Committee, told The Hill.

There is also less pressure for the CBC to take immediate sides, with the FBI pausing the legal fight while it tries a secret new method to hack into the San Bernardino shooter's phone without Apple's help.

But Butterfield said he may revisit the issue when Congress returns after its two-week hiatus.

And all members may be pushed to eventually vote on legislation that would give lawmakers more access to encrypted data.

Sens. Richard BurrRichard BurrGingrich, Christie top Trump’s VP list: report Homeland Security Committee pushes encryption commission in new report Clinton endorses Warner-McCaul encryption commission MORE (R-N.C.) and Dianne FeinsteinDianne FeinsteinHomeland Security Committee pushes encryption commission in new report Clinton ally stands between Sanders and chairmanship dream Clinton endorses Warner-McCaul encryption commission MORE (D-Calif.) — the leaders of the Senate Intelligence Committee — are on the cusp of releasing a bill that would force companies like Apple to comply with government requests for locked information.

Another measure, from House Homeland Security Committee Chairman Michael McCaul (R-Texas) and Sen. Mark WarnerMark WarnerOvernight Cybersecurity: Calls grow for encryption panel Homeland Security Committee pushes encryption commission in new report The Hill's 12:30 Report MORE (D-Va.), would establish a national commission to study how police can get at encrypted data without endangering Americans’ privacy rights.

“At the end of the day we’re going to have to vote on it. So that’s a stance,” Richmond said. “But I don’t think [the CBC is] in a position now to do it, because I still think there’s so much more information to be gathered.”