In the growing showdown between Apple and the Justice Department, the tech giant is taking its appeal today straight to lawmakers on Capitol Hill, reiterating calls for Congress – not a court – to decide the issues at stake.
“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,” Apple’s top lawyer, general counsel Bruce Sewell, is expected to tell a House panel this afternoon.
The Justice Department has been trying to force Apple to hack into an iPhone left behind by one of the San Bernardino, California, shooters. Two weeks ago, a federal judge in California issued an initial order telling Apple to do just that – but before making a final decision, the judge will hear arguments in the case later this month.
And just yesterday, a federal judge presiding over a separate criminal case in Brooklyn, New York, sided with Apple, saying federal authorities had no legal authority to compel such assistance from Apple.
The questions at the heart of this dispute could end up before the U.S. Supreme Court.
“We now find ourselves at the center of an extraordinary circumstance,” Sewell is expected to say in opening remarks today.
He is prepared to emphasize Apple’s belief that the Justice Department, namely the FBI, wants Apple to create a “backdoor” into the iPhone, and that building such software is “too dangerous” because it “would weaken the security for all” iPhones.
“Hackers and cyber criminals could use this to wreak havoc on our privacy and personal safety,” Sewell is expected to allege. “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?”
Before a different House panel last week, FBI Director James Comey dismissed the notion that Apple’s assistance in the San Bernardino case would endanger other phones around the world.
"The code the judge has directed Apple to write works only on this one phone, and so the idea of it getting out in the wild and it working on my phone or your phone ... is not a real thing," Comey told the House Intelligence Committee. "[In addition] the code will be at Apple, which I think has done a pretty darn good job of protecting its code."
Comey will be testifying before Sewell at the same House panel today, though he did not provide prepared remarks to the House Judiciary Committee.
On Dec. 2, 2015, Syed Farook and his wife, Tashfeen Malik, launched a deadly assault on a county government holiday party, killing 14 of Farook's coworkers in San Bernardino. With attacks like that, the public needs to understand "the costs associated with moving to a world of universal, strong encryption," Comey said.
"I love encryption," Comey insisted, but law enforcement "really does save people’s lives, rescue kids [and] rescue neighborhoods from terrorists ... and we do it a whole lot through search warrants of mobile devices."
He said there are "increasing situations where we cannot with lawful court orders read the communications of terrorists, gang-bangers, pedophiles, all different kinds of bad people." So, he said, "if we’re going to move to a world where that is not possible anymore, the world will not end, but it’ll be a different world than where we are today."
Federal prosecutors say Farook’s phone, given to him by his employer, could be hiding "crucial evidence" about the terror attacks.
"The government requires Apple's assistance to access the ... device to determine, among other things, who Farook and Malik may have communicated with to plan and carry out the IRC shootings, where Farook and Malik may have traveled to and from before and after the incident, and other pertinent information that would provide more information about their and others' involvement in the deadly shooting," prosecutors said in their initial filing on Feb. 16.
The Justice Department is basing much of its legal argument on the All Writs Act, which essentially tells judges they can compel action in order to enforce the orders they have issued. In other words, the law tells judges they can take steps to ensure their orders have meaning and effect.
In response to the New York judge’s ruling yesterday, the Justice Department noted that prior to the latest dispute, Apple complied with 70 similar orders to break into devices – orders that were based on the All Writs Act.
During his testimony today, Sewell is expected to express Apple’s “deepest sympathies” to the victims of the San Bernardino attack, saying Apple “has no sympathy for terrorists,” and, “Justice should be served.”
But, “We feel strongly that our customers, their families, their friends and their neighbors will be better protected from thieves and terrorists if we can offer the very best protections for their data,” he will say, according to prepared remarks.