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GOP congressman: I'm more in Apple camp versus FBI

Republican House Judiciary Committee member Jason Chaffetz said Tuesday a smartphone is either "encrypted or it's not."

Ahead of afternoon testimony before the committee from Apple's top lawyer and the FBI's director, Chaffetz told CNBC: "I'm more in the Apple camp on this one, in saying it's a dangerous precedent for the government to come and dictate that you have to hand ... access to all of your data, in case you commit a crime in the future."

At issue is a government court order directing the tech giant to help authorities hack the iPhone belonging to one of the San Bernardino terrorists. Last week, Apple filed a motion to vacate, saying creating such a tool would open a Pandora's Box.

"Unfortunately in this day and age you can't keep it away from the bad guys," Chaffetz told "Squawk Box."

In a ruling that could help Apple in the San Bernardino case, a federal judge in Brooklyn on Monday said the government cannot force the company to unlock an iPhone in a New York drug case.

"You can't compare your average drug dealer being prosecuted to a case of real, serious terrorism," Tusk Ventures CEO Bradley Tusk told "Squawk Box" in an earlier interview. "The idea that there's absolutes on either side doesn't make any sense."

Tusk, a strategic counselor to tech leaders facing regulatory issues, said there are examples when people are willing to give up some privacy for convenience and security — pointing to E-ZPass for highways tolls on the convenience side and airport screening on the security side.

"Apple has no problem using my data everyday to sell me stuff," added Tusk, former campaign manager for New York City Mayor Michael Bloomberg's third run for office.

Apple's general counsel, Bruce Sewell, will argue at the Capitol Hill hearing that creating an unlocking tool would weaken the security of hundreds of millions of Apple devices, according to his prepared statement.

Sewell is set to testify directly after FBI Director James Comey, who told lawmakers last week that creating an unlocking technique would "unlikely" set a legal precedent, and would not be useful for breaking into later generation Apple devices.

"[But] where does this stop, and this is a question for Director Comey as well," Chaffetz said, bringing up technically advanced, electric automaker Tesla as an example. "Are they going to mandate that Tesla provide information so you can go back and track wherever that car has been?"

"What about Facebook? Are you going to be able to go in and just force Facebook to do certain things and track your whereabouts," said Chaffetz, a four-term Republican congressman from Utah and chairman of the House Oversight and Government Reform Committee.

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— Reuters and Associated Press contributed to this report.