Sci & Tech

Encryption Battle Rages

Encryption Battle RagesEncryption Battle Rages

Members of the House Judiciary Committee are considering filing a “friend of the court” brief in Apple Inc’s encryption dispute with the US government to argue that the case should be decided by Congress and not the courts, five sources familiar with the matter said.

The sources cautioned that no final agreement had been reached on what would be an unusual intervention by congressmen in a legal proceeding.

Any filing would occur after a panel hearing on Tuesday that will include FBI Director James Comey and Apple General Counsel Bruce Sewell. The court deadline is Thursday, Reuters reported.

The filing would argue that the Feb. 16 order from a federal court in California that instructs Apple to write special software to unlock an iPhone 5c used by one of the San Bernardino shooters threatens the constitutional separation of powers, the sources said.

They said the brief would come from individual committee members of both Republican and Democratic parties but not the judiciary committee itself. Reuters could not determine which members were likely to be included.

Lawmakers could wait until the appeals process before intervening, the sources said.

Apple last week formally opposed the order in court, calling the case “unprecedented” and a violation of free speech rights that would override the will of Congress.

The San Bernardino case has come to represent a broader debate over how much authority law enforcement should have to compel companies to assist in monitoring digital communications.

The encryption debate does not divide along party lines, with liberal Democrats and libertarian-leaning Republicans both supporting Apple’s stance. Many pro-law enforcement lawmakers of both parties, and Republican presidential front-runner Donald Trump, support the government’s position.

The unusual Congressional intervention would come on top of a wave of support for Apple among its Silicon Valley brethren.

Some two-dozen companies and civil liberties groups are expected to weigh in on Apple’s side. Relatives of some of the shooting victims are planning to back the government’s case, said their lawyer, Stephen Larson.

The Federal Bureau of Investigation earlier this month sought and obtained a court order requiring that Apple write new software and take other steps to unlock an iPhone 5C that was used by Rizwan Farook, who along with his wife went on a shooting rampage on Dec. 2 in San Bernardino that killed 14 and wounded 22.

The government has said the attack was inspired by militants and the FBI wants to read data from the phone to investigate any links the couple might have had with militant groups. Apple is concerned that the order would lead to endless similar requests in the US and overseas, and ultimately undermine the security of all Apple phone.

  NY Judge Backs Apple

In written testimony to the US House of Representatives Judiciary Committee released on Monday, Apple general counsel reiterated the tech giant’s stance that the FBI’s request to help access the phone “would set a dangerous precedent for government intrusion on the privacy and safety of its citizens”.

The US government cannot force Apple Inc to unlock an iPhone in a New York drug case, a federal judge in Brooklyn said on Monday, a ruling that bolsters the company’s arguments in its landmark legal showdown with the Justice Department over encryption and privacy.

US Magistrate Judge James Orenstein in Brooklyn ruled that he did not have the legal authority to order Apple to disable the security of an iPhone that was seized during a drug investigation. A senior Apple executive, who spoke on condition he not be named, said during a call with reporters that Orenstein’s decision would bode well for the company in the San Bernardino case, which has touched off a fierce national debate about the balance between fighting crime and preserving privacy in the digital age.

Although US Magistrate Judge Sheri Pym, the judge in the San Bernardino case, will not be bound by Orenstein’s decision, the senior Apple executive said it will likely be influential. In both cases, the government relies on the All Writs Act, a broad 1789 law that enables judges to require actions necessary to enforce their own orders.

The Justice Department is “disappointed” in Orenstein’s ruling and plans to ask a higher judge within the same federal district to review the matter in the coming days, a department representative said. Though the defendant in the drug case has already pleaded guilty, the Justice Department still believes the phone may contain evidence that “will assist us in an active criminal investigation”, the official said.

When fighting the government’s order to help extract data from the iPhone, Apple had argued that being forced to do so “could threaten the trust between Apple and its customers and substantially tarnish the Apple brand”, according to court records. Inc, Alphabet Inc’s Google, Facebook Inc, Microsoft Corp and Twitter Inc have voiced support for Apple.

The iPhone 5s at issue in the case was seized by the US Drug Enforcement Administration during a 2014 search of the Queens, New York, residence of Jun Feng, who authorities suspected of being involved in drug trafficking.