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Apple Accuses Justice Department of Trying an End-Run of Congress on Encryption

Law enforcement has tried, unsuccessfully so far, to mandate encryption back doors.

Chip Somodevilla, Gabriella Demczuk / Getty

In its bid to overturn a court order to help federal investigators hack a phone used by one of the San Bernardino attackers, Apple lays out a number of arguments.

Here’s the political angle: Apple is accusing the Justice Department of trying to do an end-run around Congress to get what it wants — namely to force technology companies like Apple to punch holes in their encryption.

The Justice Department has tried the legislative route to require such back doors. The most recent effort would have significantly expanded the reach of the Communications Assistance for Law Enforcement Act — the law that defines how private companies can be drafted to help law enforcement when it comes to electronic surveillance.

Law enforcement pushed for access to encrypted communication on devices. But that effort fell flat last October, when the Obama administration made clear it wouldn’t seek passage of the legislation, after companies successfully argued that it would compromise data security.

FBI Director James Comey made a fresh push for access to encrypted information on smartphones after the November terrorist attacks in Paris, renewing his criticisms about how technological advances were cloaking more and more information from law enforcement through a process he called “going dark.”

The rhetoric intensified after the Dec. 2 mass killings in San Bernardino. Earlier this month, Comey foreshadowed last week’s court filing when he told a Senate Intelligence Committee that encryption had prevented law enforcement from gaining access to information on one of the attackers’ phones.

Apple called the Justice Department’s effort to force it to help bypass the security protections on one of its iPhones an attempt to “short-circuit public debate.”

“Whether companies like Apple should be compelled to create a back door to their own operating systems to assist law enforcement is a political question, not a legal one,” Apple writes.

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