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LEGAL VIEW WITH ASHLEIGH BANFIELD

Apple Gets Orders; Previewing the South Carolina Race. Aired 12-12:30p ET

Aired February 17, 2016 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


(COMMERCIAL BREAK)

[12:00:38] JIM SCIUTTO, CNN ANCHOR: Hello, everyone. I'm Jim Sciutto. Ashleigh Banfield is off today. And welcome to LEGAL VIEW.

We begin today with a court battle that has enormous implications for your personal privacy and security your phone, your e-mail, your text messages, your identity in pictures, the places you go, the people you talk to, all the things that you expect or at least hope to be yours and yours alone. This story today pits the U.S. government against the first high-tech company to say no, we won't do what you want us to do. And that company is none other than Apple. The FBI wants to crack into a dead terrorist's iPhone. They cannot break its security protections. Apple says it cannot either. That's just the way it works.

A federal judge, however, now demanding Apple cooperate with the terror investigation and crack open that one particular iPhone. Apple's response, "no." But it's not nearly as simple as it sounds because Apple's CEO insists he's not being difficult, only that the iPhone security is very tight for a reason. And it is impossible to compromise that one iPhone without compromising the security of all iPhones, more than 700 million of them in use worldwide today.

Our justice reporter, Evan Perez, he's following this story.

Evan, starting with this, when you look at this, just how much legal pressure is there on Apple right now?

EVAN PEREZ, CNN JUSTICE REPORTER: Well, this is a lot of legal pressure, Jim, because the FBI is no -- there's no -- there's no mistake here that the FBI chose this case to test this issue, right? This is an issue that's been boiling for some time. And they've chosen this issue because we are talking about a terrorist attack that killed 14 people. We're talking about an attack that happened in the United States. And in this case, it's a cell phone that's actually owned by the San Bernardino County Health Department, which employed Syed Farook, one of the terrorists that carried out this attack in San Bernardino.

And what Apple is saying is simply that they don't have right now the technical capability to break into cell phones. The FBI and this judge agrees, saying, look, you've got to figure it out. You've got to figure out software that you can load on to this phone to be able to bypass the security feature. The security feature basically is this, that if you enter a password more than 10 times, the data on this cell phone automatically erases.

The FBI director addressed this very issue in a congressional hearing recently. Take a listen to what he had to say.

(BEGIN VIDEO CLIP)

JAMES COMEY, FBI DIRECTOR: It is a big problem for law enforcement armed with a search warrant when you find a device that can't be opened, even though the judge said there's probable cause to open it. As I said, it affects our counterterrorism work. You know, with San Bernardino, very important investigation to us. We still have one of those killers' phones that we have not been able to open.

(END VIDEO CLIP)

PEREZ: And the big issue here for Apple is that they say what the FBI wants is a back door. You heard the FBI director there, he's saying, it's a front door. We're going to go into the front door and we want Apple to bring this into their own labs. They're the ones that are going to be able to do this.

SCIUTTO: You're right, that they chose the perfect case for this, right, because this is not some theoretical terror attack. It's a terror attack that happened.

PEREZ: Exactly.

SCIUTTO: Many people are dead. In this case legally, can the Justice Department force Apple's hand here?

PEREZ: Well, certainly, the -- this case is -- we believe, is going to end up at the Supreme Court because they will not stop until they get a final say on this very important issue. And I think Apple also feels that they have to go all the way to the Supreme Court to establish what is the limit of national security versus privacy.

SCIUTTO: Right. And we'll see if there are nine justices by the time they make it to the Supreme Court.

PEREZ: Exactly.

SCIUTTO: If they make it that far. Evan Perez, thanks for covering the legal side of it.

Now, just -- this is just one, albeit very large company versus the government. High tech firms, cyber security experts are watching this very carefully. And you better believe that the lawyers on all sides are watching too. The ultimate decision here will set a powerful precedent.

So I want to get to all the implications. We have Brian Stelter, he's our senior media correspondent, Paul Callan, he's a legal analyst, and David Kennedy, he's a computer security expert, a so-called ethical hacker who runs a high-tech computer security company.

Brian, if I can just start with you for kind of historical context here. This is different, of course, from Edward Snowden and WikiLeaks, but you say we wouldn't even be talking about this had we not had Edward Snowden.

BRIAN STELTER, CNN SENIOR MEDIA CORRESPONDENT: Yes, because the Snowden leak several years ago restarted a conversation about this balance between security and privacy. Snowden freed (ph) and the revelation from the documents Snowden leaked created new awareness of technology companies' relationships with the government and frayed those connections. Apple and other companies have had to have a more tough stance against government attempts to get information from their customers.

[12:05:23] And Apple has turned this into a selling point. Not just in the U.S., but importantly all around the world. When Apple talks about the privacy benefits of technology, it is selling to customers in many other companies, and that's one of the reasons why CEO Tim Cook is taking such a strong hand here. And, by the way, we've heard from Snowden a few minutes ago on Twitter saying, this is the biggest tech case in the legal world of the last decade.

SCIUTTO: And we know that following those Edward Snowden revelations, that a lot of customers fled American security providers to European -- they talk about tens of billions of dollars lost.

STELTER: Right.

SCIUTTO: So certainly there's a business question here.

STELTER: Yes.

SCIUTTO: David Kennedy, I want to go to you with a very basic technical question that I imagine a lot of our viewers have because viewers at home are saying, why won't Apple crack into a dead terrorist's cell phone, just one cell phone, right? Why does it have to affect everyone else? But, technically, if they do, do they -- whether you call it a back door or a front door, does this mean that they, in effect, break security on everyone's iPhones?

DAVID KENNEDY, SECURITY CONSULTANT: That's exactly what it means. It essentially means that they're giving a way for law enforcement, for the government to be able to actually crack those phones themselves, and for any other phone in the future. So, you know, this basically reduces the security over all iPhone devices and platforms and wouldn't necessarily be the most secure platform out there today.

SCIUTTO: OK. So Paul Callan, you've been around the law a little while. Look at this case here. Who has the advantage going in?

PAUL CALLAN, CNN LEGAL ANALYST: Well, you know, it's -- you're trying to balance the need for information about terrorists as against privacy rights of the American public. And I think we should be clear, the FBI is not asking for the password to this phone. What they're asking for is, they have this thing, you know, ten times and you're out. You try it ten times, you can't get it, the phone erases everything. They're trying to disable that feature. But Apple says, that's a key feature that protects private information

on the phone. And, in fact, the Justice Department had to go all the way back to a 1977 case involving ancient technology to say, you know, this has been done in the past with phone registers and organized crime cases. But I don't think that really applies and I think that this is going to be a pitched battle in the U.S. Supreme Court.

STELTER: And Apple is saying, let's debate this in public. You know, this is usually something that's happening in courthouses and mostly in private. Most Americans don't hear about these situations. What Tim Cook did overnight with his statement is say, let's talk about this in public. I think many people -- you know, I'm holding my iPhone right now. I appreciate the fact that if I don't put in the pass code correctly within 10 times, it is going to wipe the phone.

KENNEDY: I agree.

STELTER: Because we all know that usually means some criminal has it, it's been stolen or something. This, of course, is a very different case. But we all can kind of do that test in our own minds. And, by the way, here's one other test. What if this was the Chinese manufacturer of a Chinese phone that needed access to the technology and what if it was the Chinese government or another government, not the U.S. government, asking for access? I think people's feelings might be very different if that were the case.

CALLAN: And, you know, Jim, I think that --

SCIUTTO: David, this is a -- David, if I could ask you about this because, you know, I cover counterterrorism a lot and this goes back to an argument that law enforcement, counter terror officials have been making for some time, that terrorists are going dark. They need a back door for encryption so that, for instance, the Paris attackers were using encrypted communications to help prevent plots like this in the future. But -- so, again, for folks back home, they'll think, well, why not? You know, that will help keep us safe. I guess to Brian's point, what Apple will say is that if the government gets a back door, that means it's only a matter of time before hackers, authoritarian governments, et cetera, get a back door. Is that an accurate argument?

KENNEDY: It is. Once that back door is actually out there, having other governments get access to that is an eventuality. In addition, you know, the Paris attackers, in a lot of cases, didn't use encryption as a key method for communication. So that was actually a false pretense to try to get this encryption back door area started. So, you know, most of the terrorists still don't use encryption. There's other ways of identifying that type of information. We have humant (ph) we have signant (ph). There's a lot of other intelligence ways of getting this type of information than back dooring our own privacy. And once you give these type of back doors into these types of technologies, you know, it's a slippery slope for security and privacy.

And one thing to mention on that is that, you know, this is from an old Apple 5C device, which basically doesn't have a lot of the newer security features like we call security enclave. So they'd have to backdoor the new technology as well to allow the FBI or other law enforcement agencies to get access to this type of data. So this isn't just a one time off thing. This is a major case that, you know, I think it was put very well. It's probably the largest tech, you know, issue and decision that we have to make as a people in our generation. So this is something that's going to be really catastrophic to security privacy moving forward and from here on out.

STELTER: And, of course, it's a private company.

SCIUTTO: That's a great point. Paul --

STELTER: It's not the government. It's a private company making this (INAUDIBLE).

[12:10:03] KENNEDY: Yes.

STELTER: It's a reminder of how powerful Apple is.

SCIUTTO: Well, it is a private company --

CALLAN: Well, and I also think that --

SCIUTTO: That provides cell phones to 700 million, 800 million people.

Paul, just very quickly --

STELTER: Right.

SCIUTTO: Because we don't have a lot of time. I just want to ask you a point that David brought up there. Is there any precedent for a company going against the government on an issue like this where you've got privacy up against national security in such a direct way?

CALLAN: Well, yes. In the lower courts, there have been many cases like this. And so far private companies have won. And one of the reasons they've won is, think about what's going on here. The FBI is trying to compel essentially private citizens to assist them in a criminal investigation by disabling this decryption method. And John Paul Stevens in that '77 case said, you know, the only time this has happened before is when British troops occupied the U.S. in the 1700s and they had something called the Writ of Assistance which forced the colonialists to assist the British. And he said that's what the Constitution is for, to prevent the government from compelling citizens to have to do this. So it's going to be quite a battle in the Supreme Court.

SCIUTTO: And that might be a Supreme Court with just eight justices. We'll see. Paul Callan, Brian Stelter, David Kennedy, great to help us break this very complicated issue down.

Turning now to another contentious battle. Tonight, Ben Carson, Ted Cruz and Marco Rubio will answer tough questions from South Carolina voters at the first of two back-to-back CNN town hall events. We'll take you on the campaign trail before Saturday's next big primary.

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[12:15:25] SCIUTTO: We are entering the final stretch in two key battles in the presidential race. GOP candidates are canvassing South Carolina with just three days left until the first in the south primary. Several events have already taken place today with many more expected across the state as the day goes on. A new poll shows it will be a tough, uphill battle for the GOP field. That's because Donald Trump is holding a commanding 16-point lead over Ted Cruz. Similar storyline taking place with Democrats in the South -- in South Carolina, with Hillary Clinton topping Bernie Sanders by double digits there. In Nevada, however, Clinton in a dead heat with Senator Sanders. As for the GOP side, Trump is also up by a large margin in Nevada.

We'll take a deeper dive into Nevada in just a few minutes. But, first, let's take a closer look at the race in South Carolina, especially with just hours before three of the GOP candidates get ready to make their pitch to voters during a CNN town hall. CNN's Phil Mattingly is following one of those candidates set to take the stage tonight, senator Marco Rubio. Also joining us is our own Jim Acosta, who's on the trail with the Trump campaign.

Phil, if I could begin with you. Senator Rubio has had a heated back and forth with Ted Cruz and Donald Trump. What has he said today?

PHIL MATTINGLY, CNN CORRESPONDENT: Well today the attacks have only grown sharper when it comes to Ted Cruz. And, look, what this all comes down to is really two-fold. First and foremost, Marco Rubio and his campaign see Ted Cruz's voters as people that they can bring over. And if they want to come in second place in South Carolina, or really make a move up, trying to cut into Donald Trump's lead, they need to grab some supporters of Ted Cruz. How they're doing that, in part alleging dirty campaign tactics. This is what Marco Rubio told reporters today.

(BEGIN VIDEO CLIP)

SEN. MARCO RUBIO (R), PRESIDENTIAL CANDIDATE: When you say something outlandish and untrue every day, I think it does reflect the kind of campaign that you're running and what you're capable and willing to do in order to win. I've been saying for a while now that Ted, unfortunately, has proven that he's willing to say or do anything to get elected. I don't think that's a positive thing to see in a president.

(END VIDEO CLIP)

MATTINGLY: Questioning Ted Cruz, questioning his campaign. And, Jim, what this goes down to is everything from fake FaceBook pages to robo calls that are accusing Marco Rubio of failures while he's in the Senate. Again, it's South Carolina. We expect a lot of tactics like this. But Marco Rubio, what they're trying to do right now is raise questions about what type of campaign Ted Cruz is running. Again, hoping to cut into some of that support, Jim.

SCIUTTO: Phil Mattingly, thanks very much. And, Jim Acosta, stand by. I just want to get to an event, a live

event, with Ted Cruz. He's in South Carolina campaigning. Let's have a listen right now.

SEN. TED CRUZ (R), PRESIDENTIAL CANDIDATE: Have you ever once, in a Republican presidential campaign, seen a Republican candidate for president praising Planned Parenthood effusively on a national debate stage? Mind you, he had just called me a liar for saying that was his record.

And Marco Rubio does the same thing. Marco Rubio is behaving like Donald Trump with a smile. At the debate, I made three points about Marco's record on immigration. Number one, that Marco, right now, currently, supports granting citizenship to the 12 million people here illegally. That is a fact. It is a fact he said just a couple of debates ago on the debate stage that he currently supports that, and he acknowledged, this may not be the majority view in my party, but I, Marco Rubio, support it. And he said it on "Meet the Press." with Chuck Todd just a few weeks ago where he went even further and said he would grant citizenship to illegal aliens with criminal convictions. The first point I made about immigration, that Marco currently supports granting citizenship to the people here illegally is a fact. It is his own record. It is his own words.

The second observation I made about him is that in Florida he supported granted in-state tuition to illegal immigrants. That, likewise, is a fact. There's no gray area. There's no interpretation. It is a legislative fact.

And the third point I made is that Marco went on Univision, in Spanish, and said that on his first day in office he would not rescind President Obama's illegal executive amnesty. Now that, too, is a fact. Look, the Univision -- you can go watch the video. He said this on national television. It is this bizarre notion that words said on national television somehow don't exist. And Marco's response was exactly the same as Donald's. It was to yell liar, liar, liar. And, indeed, to respond with the quip, how would Ted know what I said on Univision. He doesn't even speak Spanish. Well, as the debate demonstrated, that was another false statement for Marco. Although I will readily admit, my Spanish is not great. But that's also a debater's trick Marco was doing because, notice, he didn't answer the substance of anything I said because the facts were all true and accurate. And instead, both Marco and Donald, their strategy is simply to yell liar, liar, liar.

[12:20:45] But I will say it has been even more unfortunate. Both Donald and Marco have gone a further step. In addition to yelling liar whenever anyone points to their actual record, makes true statements about their policy positions, the second strategy that both Donald and Marco have relied upon is utter fabrications. Yesterday, Donald Trump retweeted his own social media director who claimed that Senator Tom Coburn had said that I was dishonest. Now, I understand this amplified the attack that Donald's making. He's been screaming liar, liar, liar every time anyone points to Donald's own record, so it was great for him to be able to point to someone else saying the same thing. There's just one minor detail. The quote was a complete fake. Indeed, within a few hours, Tom Coburn went on the record and said that the quote was a, quote, "utter fabrication."

In response to that, Donald deleted his tweet. His social media director deleted his tweet. But then amazingly, a few hours later, Donald went on a national TV broadcast and repeated the fabrication after he had deleted the tweet, after Tom Coburn had said it was an utter fabrication, Donald happily sat on national TV repeating things that are simply made up. That have no basis in truth, that are complete fabrications. That is a new level for presidential politics.

And I would note, the Rubio campaign is doing the same thing. They are right now in the closing period of a campaign. Not focused on any positive policy agenda. Not focused on any substantive differentiation between his record and my record. Not focused on any accomplishments that Mr. Rubio has. But instead devoting all of their energy to, number one, screaming liar, and, number two, focusing on two fabrications. Number one, this fake FaceBook post that was allegedly put up retracting Trey Gowdy's endorsement. Now, the FaceBook post is a fake. We didn't design it. We had nothing to do with it. And yet the Rubio campaign, over and over and over again, is claiming that we did with zero evidence. Falsely attributing misconduct to us with no basis whatsoever other than it fits the narrative they would like to drive.

And then, secondly, the Rubio campaign is talking about these supposed push polls that have been going out. Now, I have no idea if there have been push polls or not. But what I know is, our campaign has had nothing to do with them. We have said that multiple times.

Now, what is a push poll? A push poll is a poll that is not conducted to measure public opinion. Not conducted to determine, OK, where are the candidates, which messages are resonating, which ones are not. That's a typical poll that every campaign is doing. A push poll is something different. A push poll is something that goes out very, very widely and it is designed just to push negative messages to reach lots of voters. It's a means of voter communication. And often push polls are pushing information that is nasty and often false.

Now, I don't know whether there have been push polls or not in this campaign. But I know that our campaign had nothing to do with it. And yet Marco, his campaign sent out 500,000 robo calls with a major campaign surrogate of his accusing our campaign of being behind the push polls. Now, he was asked today what evidence he had for that. He had no evidence. Has no basis whatsoever.

[12:25:18] He simply -- his campaign -- look, it's unfortunate. His campaign has not gotten the traction he wanted. I recognize that the Rubio campaign is disappointed with a third-place finish in Iowa. They're disappointed with a fifth place finish in New Hampshire. And the consultants who are running his campaign have apparently made the decision that their one hope of doing well is to make false attacks with no basis whatsoever.

I will note the one person we know has done a push poll is Senator Marco Rubio. When you send 500,000 robo calls, you're not trying to measure public opinion. You're trying to drive a negative message. And what was the push poll the Rubio campaign was pushing? That the Cruz campaign was unethically driving these push polls. They have no basis for it. This is an entirely made up fabrication, just like the Tom Coburn quote that Donald Trump used.

And let's be clear. How do we know it's Marco Rubio? Well, because the robo call ends with --"this was paid for by Marco Rubio for president." That's actually how someone responsible points for evidence. How do I know they did those robo calls? Because it's from their campaign directly.

Look, ethics matter. When you have Donald Trump and Marco Rubio repeatedly putting forth fabrications with no evidence, no basis whatsoever, just trying to throw mud and attack, I get that candidates want to tell the voters, listen, everyone's dirty, everyone's unethical. But if that's not true, and their strategy of screaming liar whenever anyone points to their record, and relying on fabrications, is not indicative of candidates running honest campaigns.

And with that, I'm happy to answer questions.

QUESTION: Senator, I know you're here defending yourself, obviously, and to point to your record. But for a while you told us that you would not get down in the mud. Do you feel that this is you stooping to their level in some way?

CRUZ: From the beginning of this campaign we've taken the high road. Many of you all have been on the road with us now for nearly a year. You've seen attack after attack, personal attack after personal attack. And I don't respond in kind. And I'm not going to. I'm not insulting anybody here. I am responding with simple facts.

Mr. Trump has sent me a legal cease and desist letter saying stop telling the voters my record. Now, that is objectively legally frivolous. I will make that point. I will point to substance and policy and record. That should be the bread and butter of politics.

But the insults and the falsehoods and the fabrications have no business in politics. It is incumbent on all of us to speak the truth. I can't change what the others do, but I can change and impact what I do. And we are going to continue to focus on substance and issues, my record and the record of Donald Trump and Marco Rubio and the other candidates.

QUESTION: Yesterday the president singled out Donald Trump and essentially said, in not so many words, that he wasn't serious enough to be president of the United States. That a reality TV show is not the presidency. Do you agree with the president on that?

CRUZ: I think a great many South Carolinians are concerned that Donald Trump is not prepared to be commander in chief. That he doesn't have the basic knowledge, understanding, judgment and temperament to keep this country safe. And as we've seen the rise of radical Islamic terrorism, that has become the most determination the voters are making. I think when Donald Trump at one of the prior debates, evidence that he did not know what the nuclear triad was. That is a real problem for someone who wants to be commander in chief to have no idea about the basic tools that defend ourselves from nuclear aggression. [12:29:53] Likewise, I think Justice Scalia's passing this weekend

elevated the stakes of this election. That the people of South Carolina are asking the very simple question, who do I trust to nominate principled constitutionalists Supreme Court justices?