Apple To Argue Congress, Not Courts, Should Determine Outcome Of FBI Legal Battle

Apple lawyers plan to tell a judge this week that Congress, not the courts, should determine whether the FBI can force the company to unlock an iPhone. It's a route that could yield more success for Apple than in the judicial system, where experts have predicted the case could ultimately be decided by the Supreme Court.

Theodore Boutrous Jr., a lead attorney for Apple, told the Associated Press Wednesday Apple plans to argue that it's up to Congress to create a law that would either force or prohibit communications and tech companies from building strong encryption into their products. Apple also intends to argue that the All Writs Act, an 18th Century law that's been used to compel companies to take additional steps in meeting government search requests, is not applicable in this case.

The FBI is trying to force Apple to build new software capable of unlocking the iPhone 5c used by one of the San Bernardino, California shooters who killed 14 people last year in an attack possibly inspired by ISIS.

“The government is really seeking to push the courts to do what they haven't been able to persuade Congress to do,” Boutrous told the Associated Press. “That's to give it more broad, sweeping authority to help the Department of Justice hack into devices, to have a backdoor into devices, and the law simply does not provide that authority.”

Apple spent nearly $5 million on Congressional lobbying in 2015, the AP reported, on issues primarily related to tax and copyright law. The White House previously said Congress' inability to answer “the most basic questions” is proof the decision should remain with the courts.

Public polling on whether Apple should fight the court order has been split. A Reuters/Ipsos poll released Wednesday showed that 46 percent of respondents said they agree with Apple's stance, 35 percent disagreed and 20 percent said they do not know. Earlier this week, a Pew Research Center study found that 51 percent of U.S. adults think Apple should help the FBI, while 38 percent say no and 11 percent have no opinion.