Apple will argue this week that the issue of whether it should assist the FBI in accessing a locked iPhone used by one of the San Bernardino shooters should be decided by Congress, rather than the courts, the AP reports. According to documents detailing Apple's upcoming arguments in the case, provided to the AP by Apple attorney Theodore J. Boutrous Jr., the company will also claim that the US government is improperly using 1789's All Writs Act to force Apple's compliance.
Moving the case to Congress would make sense for Apple, which has more influence on Capitol Hill than it does in the courts. The company spent almost $5 million lobbying Congress in 2015, as the AP notes, and several of the figures that would be involved in a congressional debate are divided on the issue of encryption. Boutros also told the AP that the FBI was seeking to bypass Congress because its attempts to get the two houses to address the legalities of encryption in the past have failed.
Congress may be forced to rule on encryption
The strategy's not without risk, however. Congress could pass a law that requires all manufacturers to include backdoors for law enforcement to access their devices. Nate Cardozo, staff attorney at the Electronic Frontier Foundation, said this eventuality is part of the FBI's plan in fighting the San Bernardino case in public. "The FBI kind of doesn't care if it loses this fight if it puts pressure on Congress," Cardozo told The Verge. "They can't lose."
In this case, however, White House spokesperson Josh Earnest has questioned whether Congress should be involved in the final decision at all. "Sending complicated things to Congress is often not the surest way to get a quick answer," he said this week. "In fact, even asking some of the most basic questions of Congress sometimes does not ensure a quick answer."