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US House members mull court filing arguing Congress should decide Apple-FBI encryption fight

A report on Monday claims members of the House Judiciary Committee are mulling an amicus curiae brief filing in the Apple-FBI encryption debate, arguing the dispute should be settled by Congress, not the courts.




Citing multiple sources familiar with the committee's plans, Reuters reports the "friend of the court" filing, if it is lodged, would argue that the government's motion to compel Apple's assistance in unlocking an iPhone involved in last year's San Bernardino shooting threatens the constitutional separation of powers.

The publication said the filing is unlikely to come from the committee itself, but rather individual members on both sides of the aisle. A concrete timeline has yet to be fleshed out, though sources say any potential filing would likely be lodged after Tuesday's Judiciary Committee hearing on encryption. Apple general counsel Bruce Sewell and FBI Director James Comey are scheduled to be in attendance.

Word of prospective congressional pressure comes just hours after a U.S. federal magistrate judge in New York raised similar concerns regarding the separation judicial and legislative powers in a ruling that denied a government motion to compel Apple's assistance in a separate iPhone unlocking case.

"It is also clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts (in proceedings that had always been, at the time it filed the instant Application, shielded from public scrutiny) rather than taking the chance that open legislative debate might produce a result less to its liking," Magistrate Judge James Orenstein wrote in his ruling.

Commenting on the issue last week, Apple CEO Tim Cook suggested the government withdraw its demands and form a commission to discuss the broader implications of forcing tech firms to break their own security. Cook later reiterated his stance in an ABC News interview. The idea is already being explored by House Homeland Security Chairman Michael McCaul (R-Texas) and Senate Intelligence Committee member Sen. Mark Warner (D-Va.), who are working toward the creation of a bipartisan commission on encryption.

In a related development, Reuters on Monday pointed to a Fox News interview in which U.S. Attorney General Loretta Lynch said she hopes Apple ultimately decides to comply with the federal court order handed down in California.

"It is still our hope that they will see their way clear to complying with that order as thousands of other companies do every day," Lynch said.