Congress Should Decide Encryption Issue, Sen. Angus King Says

Transcript

STEVE INSKEEP, HOST:

A long-running battle between the government and tech companies has come down to a single phone. Apple is resisting a court order to crack the encryption on the iPhone of a San Bernardino shooter. Some in Congress are talking of changing the law. So let's discuss that and more with Senator Angus King, Independent of Maine, and a member of the Senate Intelligence Committee. He's in Maine this morning. Senator, good morning.

ANGUS KING: Good morning, Steve, how are you?

INSKEEP: I'm doing fine, thanks very much. What, if anything, is wrong with the law in this area?

KING: Well, first let's say that the fundamental responsibility of any government is national security - in the preamble to the Constitution, provide for the common defense and insure domestic tranquility. The problem with what's happening in this case is that it's purporting to make a very big change in the law by one judge under a 1789 statute.

INSKEEP: Oh yeah, that's what he's referred to in ordering that the iPhone be cracked open.

KING: Exactly. And I think it's important to also realize that this isn't a case of Apple being asked to simply flip a switch or, you know, plug in a wire from one place to another. They're being asked to write new software that doesn't exist. They purposefully did not create this kind of backdoor...

INSKEEP: Right.

KING: ...And they're being asked to create new software. And then it opens up all kinds of issues about privacy, hackers, other countries. There's a host of difficult issues here, and that's why when you mentioned at the top of the show that the committees were looking at this, that's where I think we should be going. This court case is a kind of shortcut around the public policy process. This is a really tough issue, and, you know, we've been talking about it for some time now. But there - I can argue it either way. And to decide it in this case is just, I think, the wrong approach. There's an old saying in law school - hard cases make bad law.

INSKEEP: Well, let's talk about some of the particulars here. It sounds like you have not made up your mind but that you see some of the concerns on both sides. Could you envision changing the law so that somebody goes to jail if a company like Apple refuses to comply with an order like this?

KING: I haven't seen - I haven't heard the arguments that would make that case. And I haven't seen a proposal yet that satisfies the objections. The problem is, you create a key like this, and it can't - it's hard to say that it's going to be hidden. And then it becomes used both by our government in multiple cases, but also it could get out as far as hackers are concerned or other countries. What do we do if we pass a law that says this has to be done, and then China says, oh, well, OK, we're going to pass that law too and we want access to every iPhone in China? Iran says the same thing, Russia says the same thing - you know, the bad guys go underground. They'll shift to some other encrypted platform.

INSKEEP: You're not sounding like a fan of the federal government's position on this one.

KING: Well, I don't think - I think they should have come to the Congress with a proposal to debate the issues rather than go to court. I mean, this isn't something that just jumped up in the last couple of months. The intelligence community, in particular the FBI, have been sounding alarms about this for more than a year. So to argue that suddenly we have to do this because of the San Bernardino case doesn't really pass the straight-face test. I mean, they've been talking about this. And to say, well, it will only apply to this case, that just - that doesn't wash. This is a major piece of public policy.

INSKEEP: We've just got about 30, 40 seconds here, but let me ask this bottom-line question we've been asking this morning, and it's the way a prosecutor might frame it in a situation like this. I have encryption to deal with. I'm denied some information. As a result, I don't get a terrorist and people die. Would you say that would be worth it to protect people's privacy?

KING: I would say it would be worth it if, in fact, it would - if you could demonstrate that that would be the case and that the results and ramifications around the world wouldn't lead to more problems and more people dying. It's a very complex issue, and that's why I think we need to decide it.

INSKEEP: You're saying more people might die if encryption is undermined.

KING: Yeah, because it might push terrorists onto some other encrypted app that we can't get at, or that we couldn't - some other way that we couldn't - we'd lose track of them. It's exactly what happened when Snowden revealed that we knew that terrorists were using Yahoo Mail, so they went somewhere else.

INSKEEP: Senator Angus King of Maine. Pleasure to talk with you.

KING: Steve, pleasure to talk to you. Transcript provided by NPR, Copyright NPR.