Ex-FBI official: Government's request is necessary

Former FBI Assistant Director Chris Swecker said Tuesday that he supports the Justice Department's request to access data on the iPhone used by San Bernardino, California, terrorist Syed Rizwan Farook.

"I think it's necessary to make sure that we don't create technology safe zones and safe havens for terrorists and criminals," Swecker said on CNBC's "Power Lunch."

The high-stakes legal fight between Apple and the DOJ over the locked iPhone moved from the courts to Congress on Tuesday. FBI Director James Comey and Apple chief lawyer Bruce Sewell appeared before the House Judiciary Committee for a hearing on encryption.

The hearing comes amid two significant and conflicting court rulings in New York and California on whether Apple can be forced to help the FBI gain access to locked phones.

Comey warned in his prepared testimony that technological advancements have been accompanied by "new dangers." He said those can prevent law enforcement from collecting critical evidence in criminal and terrorism investigations.

Swecker noted that Comey's argument for gaining access to the locked iPhone is compelling because he knows the private sector well given his experience serving as Bridgewater's and Lockheed Martin's general counsel.

But Sewell said the FBI is asking Apple to weaken the security of its products, which he stated could create a dangerous precedent.

While Swecker conceded that this precedent could open up the "floodgates" to additional requests from the government, there is a significant difference between what the general public thinks of as hacking into Apple versus creating an override of 10 passwords.

Unlike a traditional hacking attempt to obtain information, the software the government is requesting would help the FBI break into the phone by bypassing a security time delay and feature that erases all data after 10 consecutive unsuccessful attempts to guess the pass code. This would allow the FBI to use technology to rapidly and repeatedly test numbers in what's known as a brute force attack.

Defense attorney Benjamin Brafman told "Closing Bell" on Tuesday that the government's citation of the All Writs Act isn't really valid.

"There are no laws that cover this. The All Writs Act that the government cites was written in 1789. When it was updated in 1948, they changed it grammatically, but they didn't change it substantively. Nobody contemplated this type of difficulty when these laws were written," Brafman said, adding that ultimately it will fall to Congress to give guidance on this issue or an exception created for the San Bernardino case.

"What you might be able to do in the San Bernardino case, create an exception that is fact-specific to a case where it involves an act of terrorism," Brafman added, saying that this is done in other areas of law.

Still, even if progress was made at the congressional hearing to obtain data from the iPhone in question, Sen. Mark Warner, D-Va., noted on Tuesday that the real challenge is making sure the results of the hearing would be followed by all parties.

As sensors become located on almost every device, this problem is only going to get even more complex, Warner told "Power Lunch."

"My heart lies with keeping Americans safe both domestically from crime and from terrorists. It's also about making sure American innovation continues to lead the world and that we maintain our constitutional principles. I don't think those are mutually exclusive."

— The Associated Press and CNBC's Christine Wang contributed to this report.