Apple’s top lawyer will testify before a congressional panel next week about the company’s escalating battle with the FBI over smartphone privacy, Washington sources have confirmed.

The hearing, scheduled for 1 March before the House judiciary committee, will be Congress’s first opportunity to quiz an Apple representative, vice-president and general counsel Bruce Sewell, over the company’s rejection of a court order demanding the company unlock the iPhone belonging to one of the terrorists who killed 14 people in San Bernardino, California, in December.

The fight has become a lightning rod for tech companies, privacy advocates and legislators in an election year on the emergent conflict between digital privacy and national security.



It is the first extended testimony about a legal battle that has stripped away all veneer of cooperation with the FBI. A justice department legal filing on 19 February acidly accused Apple of prioritizing a “public brand marketing strategy” over national security. An escalating war of words between the company and the government has broken out, with new missives coming almost daily.

FBI director James Comey, who conceded to a different House panel on Thursday that the resolution of the case will likely set a legal precedent, will also testify – but not alongside Sewell. Comey will speak first and without other witnesses, something aides said was typical for government witnesses, and Sewell will follow.

After a California court ordered Apple to cooperate with the FBI and open the locked iPhone, CEO Tim Cook published a letter to customers. He said he was “shocked and outraged” by the San Bernardino shooting and Apple had “no sympathy for terrorists”.



But he said the court order was “chilling” and Apple would fight it. “We feel we must speak up in the face of what we see as an overreach by the US government,” he added. A war of words between Apple and the FBI has unfolded practically daily, ahead of Apple’s highly anticipated first legal filing, expected Friday.

Congress has been on the sidelines of the FBI’s warnings, stretching back to October 2014, that law enforcement officials were losing access to communications data on terrorists thanks to mobile companies offering end-to-end encryption. Last year, the Obama administration ruled out seeking legislation to force mobile or software companies to design in “backdoor” access to government investigators.



Hill sources said the measure had little support in the current Congress, and opposition had intensified after a memo leaked from top intelligence lawyer Robert Litt suggesting that the administration could exploit public anger after a terrorist attack to resurrect the idea.



But after Apple rejected the court order, the top Democrat on the House intelligence committee, Adam Schiff of California, signaled in an about-face that he was open to legislation to compel decryption. The chairman of the Senate intelligence panel, Republican Richard Burr of North Carolina, has walked back reports that he seeks to criminalize a firm’s noncompliance with a decryption order.

Schiff and other members of the intelligence panel indicated at Thursday’s hearing that legislation was not their first choice to resolve the emergent policy dispute over encryption’s value to cybersecurity versus encryption’s challenge to law enforcement.

Comey, testifying earlier this month, has modified his stance to indicate encryption “overwhelmingly ... is a problem that local law enforcement sees”, with some “impact” on national security investigations, a position backed by the New York police and Manhattan district attorney, both of which have criticized Apple. A recently introduced House bill seeks to prevent states and localities from mandating backdoor access to encrypted communications.



Also testifying will be Cyrus Vance, the Manhattan district attorney who has said he wants similar judicial orders to access currently-locked iPhones. Vance stated last week that he has a backlog of 175 iPhones, blasting Apple and competitor Google as “sheriffs” of a digital “wild west”.

Vance will testify alongside Apple attorney Sewell.

The judiciary committee hearing is likely to be the first of several congressional oversight opportunities. The House energy and commerce committee has also invited Apple and FBI representatives to testify at a forthcoming hearing.