WASHINGTON Members of the U.S. House Judiciary
Committee are considering filing a "friend of the court" brief
in Apple Inc's encryption dispute with the U.S.
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
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.
On Monday, a judge in a related New York case sided with
Apple in agreeing that the courts did not have the authority to
order Apple to unlock a phone.
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
The government has said the attack was inspired by Islamist
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 U.S. and overseas and ultimately
undermine the security of all Apple phone.
A number of large tech firms have publicly said they will
file briefs supporting Apple. Google, Facebook and Microsoft are
expected to file jointly and be represented by Neal Katyal, a
Georgetown law professor and former acting U.S. solicitor
general for the Obama administration, according to a source
familiar with the companies' plans.
Amazon, LinkedIn, Twitter, the Mozilla Foundation, and the
cloud storage firm Box, along with advocacy groups including the
Electronic Frontier Foundation and the Center for Democracy and
Technology, are also expected to support Apple.
Still, some major companies, including IBM, are expected to
sit out the fight. Telecom carriers have also been notably
reluctant to get involved; Verizon is unlikely to file a friend
of the court brief, despite comments from its CEO that the
company supports encryption with no backdoors, sources familiar
with the matter said.
A Justice Department spokeswoman declined comment on Sunday
about what other briefs were expected.
Apple's high-profile standoff with the U.S. government is
being played out as many of the Obama administration's most
senior officials are traveling to San Francisco this week to
attend the world's largest cyber security conference.
U.S. Attorney General Loretta Lynch, National Security
Director Michael Rogers and Defense Secretary Ash Carter are all
scheduled to speak at RSA conference, where the iPhone fight and
encryption more broadly are expected to dominate conversation.
(Additional reporting by Joseph Menn and Julia Love in San
Francisco and Malathi Nayak in New York)