Apple v FBI: Fight goes to Capitol

Tech giant hopes for Supreme Court's support on privacy grounds; Congress hearing next Tuesday

WASHINGTON • The fight over Apple's refusal to help the FBI break into an iPhone used by a terrorist in California is destined for Washington. The only question is whether it will be the United States Congress or the Supreme Court that breaks the impasse.

Apple argues that the Justice Department is overstepping its authority by forcing the company to help disable the encryption on an iPhone used by one of the two shooters who killed 14 people at a holiday party in San Bernardino on Dec 2.

The company's argument that lawmakers failed to give prosecutors the power they are seeking reveals a gambit that the Supreme Court will side with it on privacy and block an attempt to make it a "hacking" department for the government.

Apple said on Thursday in its first response in court to a judge's order to help the government that relying on a law that predates smartphones by more than two centuries is unprecedented and threatens the civil liberties of hundreds of millions of mobile phone users. That law, the All Writs Act of 1789, has been used by prosecutors to obtain court orders to enforce search warrants where there is a legal vacuum.

Apple contends Congress has had the chance to expand the power of law enforcement to access encrypted data on smartphones and hasn't.

The Supreme Court ruled unanimously in 2014 that police must get a warrant before searching a mobile phone. Whether the All Writs Act gives the US the authority, once it obtains a warrant, to compel the company to write new software to unlock a mobile phone goes beyond the scope of that 2014 ruling.

The Supreme Court ruled unanimously in 2014 that police must get a warrant before searching a mobile phone. Whether the All Writs Act gives the US the authority, once it obtains a warrant, to compel the company to write new software to unlock a mobile phone goes beyond the scope of that 2014 ruling.

"At a minimum, what should happen is Congress should legislate in this area" of national security, with the courts then weighing the constitutionality of the legislation, said Professor David Rudenstine of the Benjamin N. Cardozo School of Law.

Meanwhile, it may take anywhere from several months to two years for the case to work its way from a magistrate judge in Riverside, California, to the Supreme Court - and there is no guarantee the high court will agree to review it.

The first step is a court hearing set for March 22 in Riverside, where the magistrate who issued the order will consider Apple's objections.

Separately, US lawmakers moved to break the deadlock that has divided the public by calling a hearing with the FBI and Apple in an effort to craft "a solution".

The hearing called by the House Judiciary Committee on Tuesday will be the first in Congress since Apple said it would challenge the court order.

BLOOMBERG, AGENCE FRANCE-PRESSE

A version of this article appeared in the print edition of The Straits Times on February 27, 2016, with the headline 'Apple v FBI: Fight goes to Capitol'. Print Edition | Subscribe