Apple to push for Congress to decide case

Associated Press

WASHINGTON

Apple Inc. will tell a federal judge this week in legal papers that its fight with the FBI over accessing a locked and encrypted iPhone should be kicked to Congress, rather than decided by courts, The Associated Press has learned.

Apple also will argue that the Obama administration’s request to help it hack into an iPhone in a terrorism case is improper under an 18th-century law, the 1789 All Writs Act, which has been used to compel companies to provide assistance to law enforcement in investigations.

A lead attorney for Apple, Theodore J. Boutrous Jr., previewed for the AP some of the company’s upcoming arguments in the case. Apple’s chief executive, Tim Cook, also has hinted at the company’s courtroom strategy.

Apple’s effort would move the contentious policy debate between digital-privacy rights and national-security interests to Congress, where Apple – one of the world’s most-respected technology companies – wields considerably more influence. Apple spent nearly $5 million lobbying Congress last year, mostly on tax and copyright issues. Key lawmakers have been openly divided about whether the government’s demands in the case go too far.

Magistrate Judge Sheri Pym in California ordered Apple last week to create specialized software to help the FBI hack into a locked, county-issued iPhone used by a gunman in the mass shootings last December in San Bernardino, Calif. Syed Farook and his wife, Tashfeen Malik, killed 14 people at an office holiday party in an attack at least partly inspired by the Islamic State group.

“The government is really seeking to push the courts to do what they haven’t been able to persuade Congress to do,” Boutrous said in an AP interview. “That’s to give it more broad, sweeping authority to help the Department of Justice hack into devices, to have a backdoor into devices, and the law simply does not provide that authority.”

The White House spokesman, Josh Earnest, this week disputed that Congress should settle the issue and called the government’s request narrow. Earnest said the magistrate judge “came down in favor of our law enforcement” after evaluating arguments by Apple and the FBI. Apple hasn’t yet made any filings in the case because the Justice Department asked the magistrate to rule before Apple had an opportunity to object.

“Sending complicated things to Congress is often not the surest way to get a quick answer,” Earnest said. “In fact, even asking some of the most basic questions of Congress sometimes does not ensure a quick answer.”