It appears that the Obama administration will refrain from giving its outspoken support to any legislation that aims to compel high-tech companies to help law enforcement agencies crack mobile phone encryption.
On the other hand, it won’t level any outspoken opposition either.
Introduction of such a bill — sponsored by Sens. Dianne Feinstein, D-Calif., and Richard Burr, R-N.C., chairman of the Senate Intelligence Committee — is expected soon. Although the White House has reviewed a draft of the measure and offered feedback, it is expected to provide minimal public input, Reuters reported Thursday.
The bill gives federal judges broad authority to compel tech companies to assist government agencies, but it doesn’t prescribe what the businesses have to do or the circumstances under which they could be ordered to help. Penalties for not complying with the law also appear absent from the draft measure.
The White House did not respond to our request for comment for this story, but earlier this month at a press gaggle on Air Force One, Press Secretary Josh Earnest shed doubt on the ability of Congress to tackle the encryption issue.
“I continue to be a little skeptical of Congress’ ability to handle such a complicated policy area, given Congress’ recent inability to handle even simple things,” he told reporters.
Lack of Understanding
More public discussion is needed before Congress starts to act on encryption, maintained Jonathan Katz, director of the Maryland Cybersecurity Center.
“We need to see where the public stands on how much they value privacy of their communications versus the ability to track terrorists. The public hasn’t been given chance to think through the issues and understand what’s going on,” he told TechNewsWorld.
“Nor, for that matter, have a lot of the politicians who have come out with opinions about this. I think they don’t fully understand the technical issues either,” Katz added. “It’s worthwhile for them to really understand these issues before they start passing laws that relate to them.”
White House Unclear
If the White House opposes what Feinstein and Burr are cooking up, it’s not being very clear about it.
“It seems that they’re not actively backing the legislation, but they’re not opposing it either,” Katz said.
Congress isn’t alone in trying to grapple with the encryption issue. The states are taking action, too, and while Feinstein and Burr seem to be stopping short of forcing tech companies to weaken their encryption to accommodate government agencies, proposed laws in states like California and New York do not.
“I predict that one side will always be unhappy, and we’ll eventually see the U.S. Supreme Court weigh in on the issue,” vThreat CTO Marcus Carey told TechNewsWorld.
Weak Encryption, Weak Solution
If there’s a solution to the conflict between law enforcement and the tech companies, it doesn’t lie in weaker encryption, maintained Steve Kelly, president of Intego.
“A tech company’s first responsibility is to the consumer, so it’s correct to make products as impenetrable as we possibly can,” he told TechNewsWorld.
“When you create any backdoor to your encryption, you ultimately open it up to attackers who will exploit it,” Kelly explained, “and compromise the security and personal information of consumers.”
While tech companies shouldn’t weaken their encryption, they shouldn’t refuse to help law enforcement when they can, he added. “It’s in the tech companies’ best interest to do everything they can to help the government, because public sentiment could turn against them very quickly in the wake of a large-scale terrorist attack.”
FBI Show and Tell
Meanwhile, the FBI visited Capitol Hill to brief Feinstein on how it gained access to the data in the iPhone belonging to one of the San Bernardino killers, Syed Farook.
Since the agency has not shared the technique with Apple, the move could be interpreted as a slight to the Cupertino company, which refused to help the FBI crack the phone’s password.
However, that may not be the case.
“The move to brief Congress wasn’t an ego stroke,” maintained Mark Longworth, CEO of Shevirah.
“There are legislators who are sympathetic and have proposed amendments and bills to give the FBI greater technical access to modern, encrypted communications like they have with CALEA (the Communications Assistance for Law Enforcement Act ),” he told TechNewsWorld.
“The FBI is simply supplying those legislators with ammunition on how difficult and costly the methods they have are,” said Longworth, “as well as how important it is to get to the data in cases like San Bernardino.