Apple Will Ask Congress To Step Into Fight Over Encryption

In testimony before lawmakers on Capitol Hill tomorrow, an Apple executive will say that the questions over encryption should be answered by Congress, not the courts.

WASHINGTON – Bruce Sewell, Apple’s senior vice president and general counsel, will testify in front of the House Judiciary Committee Tuesday, seeking to persuade lawmakers that the FBI's demand that the company help it unlock an iPhone that belonged to the San Bernardino shooter is reckless and without precedent.

Sewell will frame the court battle between Apple and FBI as an "extraordinary circumstance" and tell lawmakers that they, not a judge, should decide the thorny issues surrounding encryption, according to an advanced copy of his opening statements obtained by BuzzFeed News

“The FBI has asked a court to order us to give them something we don’t have,” Sewell will say. “To create an operating system that does not exist — because it would be too dangerous. They are asking for a backdoor into the iPhone — specifically to build a software tool that can break the encryption system which protects personal information on every iPhone.”

For more than two months, FBI technicians have attempted to gain access to the data held by Syed Rizwan Farook’s iPhone, looking for possible leads pointing to the people Farook had spoken to and the places he had been. Having exhausted its technical capabilities, the FBI has demanded, through a judge, that Apple design special software to disable and bypass several security features built into the phone.

The FBI has argued that the court order entails a very narrow search — a reasonable request of an American tech company to help federal law enforcement break into a single confiscated device.

Apple, however, maintains that this request involves far more than one iPhone. The company has argued that, if forced to create a special government-sanctioned operating system, there would be no limit to this new software’s application. Apple believes this represents an unacceptable risk to its customers across the globe.

“Should the FBI be allowed to stop Apple, or any company, from offering the American people the safest and most secure product it can make?” Sewell will say. “Should the FBI have the right to compel a company to produce a product it doesn't already make, to the FBI’s exact specifications and for the FBI’s use?”

Apple believes the answer to these questions rests not with a judge interpreting the All Writs Act, the 200-year-old statute invoked by the FBI. Instead, Apple insists that Congress should intervene and work through the challenges encryption poses to law enforcement.

"The decisions should be made by you and your colleagues as representatives of the people, rather than through a warrant request based on a 220-year-old-statute," Sewell will tell members of Congress.

Apple and the FBI, despite being locked in a bitter court and public relations battle, are somewhat in agreement on this point. FBI Director James Comey also believes the broader encryption debate that has been brewing for the past several years should be taken up by Congress. “I do think the larger question is not going to be answered in the courts — and shouldn’t be — because it’s really about who we want to be as a country, and how we want to govern ourselves," he said at a congressional hearing last week.

Sewell will conclude: “At Apple, we are ready to have this conversation. The feedback and support we're hearing indicate to us that the American people are ready, too.”

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