Apple is gearing up to take its legal fight with the FBI over iPhone encryption all the way to the Supreme Court, Bloomberg reports. The company is arguing that the FBI is overstepping its authority by using the All Writs Act to compel Apple to overcome security measures built into the San Bernadino shooter’s phone and is asking the courts to have Congress settle the dispute. Apple already has an advocate in Congress, with Rep. Ted Lieu (D-Calif.) issuing a public letter asking the FBI to withdraw its lawsuit against the company and leave the question to lawmakers. “Using the court process and an antiquated law to coerce a private sector technology company is especially inappropriate in this situation because Congress has been actively debating the very issue of the appropriateness of mandating ‘back doors’ and other ways to weaken encryption,” Lieu wrote.
Just in case that line of attack proves unsuccessful, Apple has hired former U.S. Solicitor General Ted Olson to help its legal team navigate what could be new territory, claiming that the code Apple uses to authenticate the apps it allows onto users’ phones is free speech protected under the First Amendment. An Apple executive who asked not to be named said the company contends that just as the government can’t force a journalist to write a story on its behalf, it can’t order Apple to write an operating system with weaker security. Bernstein v. U.S. Department of Justice — a 1999 case often pointed to by crusaders against Internet regulation — protected source code as free speech, but other cases centering around online piracy have weakened that argument over time. As the fight drags on, a small but dedicated group of protesters organized by digital rights non-profit Fight for the Future huddled outside Apple stores nationwide last night, some enduring rain and cold to show their support for Apple’s stand against the government, as noted by a USA Today report.