Apple v. FBI case on hold, but 'going dark' debate rages on

Though Apple and the FBI will not meet in court this week, questions about the role of encrypted communications in plotting terrorist attacks resurfaced after Tuesday's bombings in Brussels.

Hours after a judge granted the Justice Department's request to delay a hearing over whether Apple should help investigators unlock the San Bernardino shooter's iPhone, the Brussels bombing quickly revived the debate over terrorists use of encryption.

"We do not know yet what role, if any, encrypted communications played in these attacks,” Rep. Adam Schiff (D) of California, the ranking member on the House Intelligence Committee, said in a statement. “But we can be sure that terrorists will continue to use what they perceive to be the most secure means to plot their attacks."

The fact that Representative Schiff mentioned encryption shortly after the bombings and in the midst of the heated Apple v. FBI iPhone dispute over the San Bernardino phone indicates that the broader debate between US government officials and the tech sector over encryption is hardly cooling off. 

"That the attackers could go forward even when Brussels was under constant vigilance for just this kind of assault, shows how difficult and dangerous the threat from [the Islamic State] remains,” Mr. Schiff added in his statement. He did not respond to a request for additional comment.

Schiff's comments regarding the potential use of encryption in the Brussels bombings, which killed 31 people and wounded 250 others, are reminiscent of lawmakers' remarks following last year's deadly attacks in Paris carried out by the Islamic State (IS). Soon after the series of bombings and mass shootings, Senate Intelligence Committee Chairman Richard Burr (R) of North Carolina said, "Encryption has been a problem, will continue to be a problem, and that problem will grow."

Those comments echoed FBI Director James Comey's longstanding concerns that the spread of end-to-end consumer encryption only exacerbates the agency's so-called "going dark" problem, meaning it can't track terrorist or criminal communications cloaked with this kind of technology.

But in the months following the Paris attacks, it remains unclear exactly what role encryption played in the terrorists' plotting. According to a recent New York Times article, the attackers relied on throwaway – or burner – phones to communicate. And while the planners may have used encryption to communicate, according to the Times, "what kind of encryption remains unknown."

However, the SITE Intelligence Group, a private intelligence firm in Washington, reported in December that it discovered documents disseminated by IS militants that ranked the safety of 33 encrypted chat applications.  

While it's unknown if IS militants used any of those apps to plan the Brussels bombing, it does appear that IS militants may have used it in the aftermath of the attacks to evade investigators' attention. On Tuesday, Michael Smith II, chief operating officer of the defense consulting firm Kronos Advisory, tweeted that IS tech support teams called supporters of the group in Belgium to turn toward encrypted channels and stay away from social media. 

Even with all the uncertainty around how militants use encryption, that hasn't stopped it from becoming a political issue. After the Paris attacks, Senator Burr and the top Democrat on the Intelligence Committee, Sen. Dianne Feinstein (D) of California, have said they plan to introduce a bill that could force companies to unlock encrypted data to comply with government requests. In December, the pair also introduced a bill to force social media firms to report extremist content to federal authorities.

And of course, the strong security measures used on the iPhone of San Bernardino shooter Syed Rizwan Farook have been at the center of the boiling legal feud between Apple and the FBI. Investigators sought to compel Apple to write new software that would bypass the security features such as encryption on the iPhone – until, just one day before the evidentiary hearing was set to begin, law enforcement announced that an outside party may have found another way into the device that did not require Apple's help.

Even so, the policy debate over encryption continues in Washington. Lawmakers have announced several bipartisan efforts to address the encryption issues in greater depth. One such effort is a bipartisan initiative led by Sen. Mark Warner (D) of Virginia and Rep. Michael McCaul (R) of Texas that would establish a commission to produce nonbinding resolutions on encryption.

On Monday, just hours before DOJ moved to postpone the Apple hearing in Riverside, Calif., a bipartisan group in Congress announced they would form a working group to find "solutions that allow law enforcement agencies to fulfill their responsibility without harming the competitiveness of the US technology sector or the privacy and security that encryption provides for US citizens."

Silicon Valley does not seem ready to drop the issue, either. Launching the new iPad and iPhone devices on Monday at Apple's Cupertino, Calif., headquarters, Apple chief Tim Cook focused on the San Bernardino controversy directly. "We will not shrink from this responsibility," Mr. Cook said of Apple's role to protect privacy. 

So far, lawmakers' views on the encryption issue have not followed party lines. Even though Republican presidential contenders Sen. Ted Cruz of Texas and Donald Trump criticized Apple for refusing to help the FBI access the iPhone used by Syed Rizwan Farook, who plotted December's attack in San Bernardino that left 14 dead, many other Republicans have backed Apple in the case. 

“The reality is that forcing Apple, or any other tech company for that matter, to create a special [government operating system] to hack into that phone could cause irreparable damage to Americans’ privacy protections,” said Rep. Darrell Issa of California, who is also part of the congressional working on encryption announced Monday.

"It’s important that the government take all steps possible before asking for wide-reaching powers that would dramatically impact the future of cybersecurity for years to come," said Representative Issa in a statement.

Rep. Will Hurd (R) of Texas said that FBI Director James Comey and other US law enforcement officials have gone too far in attacking Apple and its security practices, especially characterizing those firms as not being helpful when it comes to terrorist investigations. The fact is, said Representative Hurd, Apple and others have aided law enforcement numerous times. 

Instead of alienating Apple, he said, the FBI should be engaging with it and other tech firms to better understand the technology it's selling consumers. “I would rather have that conversation with an American company than a Russian company," he said. "That gives us a competitive advantage in chasing bad guys.”