WASHINGTON – Two top lawmakers won’t say whether a three-page “discussion draft” posted online late Thursday is the long-anticipated bill that would force companies to decrypt messages and devices when served with a court order.
The purported discussion draft, which has made lobbyists bananas and lawmakers mum, was posted around the same time that Senate Intelligence Committee Chairman Richard Burr (R., N.C.) said he was circulating a plan to compel companies to deal with encryption technology. Sen. Dianne Feinstein (D., Calif.) is working with Mr. Burr on the measure. Neither disavowed the document posted online, but nor would they take confirm its legitimacy.
“We’re still working on finalizing a discussion draft and as a result can’t comment on language in specific versions of the bill,” the two lawmakers said in a joint statement Friday morning, in the wake of the document being posted. “However, the underlying goal is simple: when there’s a court order to render technical assistance to law enforcement or provide decrypted information, that court order is carried out. No individual or company is above the law. We’re still in the process of soliciting input from stakeholders and hope to have final language ready soon.”
The legislation was posted to the Scribd online library by the news organization The Hill,which said it had obtained a “discussion draft” but didn’t provide more details.
Sen. Ron Wyden (D., Ore.) says if the document is indeed the draft of the bill, he will oppose it and will do whatever he can to stop it. “This is requiring American companies to build a back door,” he said.
Perhaps it’s fitting that legislation meant to address the issue of “Going Dark” would remain shrouded in so much secrecy. Bills are routinely leaked and floated on Capitol Hill, but legislation percolating through the intelligence committee is typically guarded much more closely.
The purported discussion draft proposes to “require the provision of data in an intelligible format to a government pursuant to a court order, and for other purposes.”
It would require “all persons receiving an authorized judicial order for information or data” to “provide, in a timely manner, responsible, intelligible information or data, or appropriate technical assistance to obtain such information or data,” among other things.
With Democrats and Republicans shifting their focus to the November elections, both parties have low expectations for congressional action on most issues. But the recent brawl between the FBI and Apple, which spilled into public view, raised expectations that Congress could make a push to deal with the thorny balance between security and privacy that has erupted over the use of encryption tools.
Presently, millions of Americans can send messages easily and securely that can’t be intercepted by criminals, employers, or even law enforcement. They can also lock their phones, or at least some phones, in a way that prevents information on that device to be obtained, even if law enforcement has a court order.
The discussion draft appears to attempt to make that illegal, essentially requiring companies to retain the capability to decrypt encrypted messages. Further clarification on the discussion draft was unattainable, in part because no one would admit to writing it in the first place. But it would essentially force some companies to change their business model. Some communications companies encrypt messages using digital keys that not even the companies themselves have access to. Other messages are encrypted using one-time events like the sound of someone’s breath or background noise.
The White House has called for technology companies and law enforcement officials to work together, trying to avoid taking sides in what has become a religious debate.
President Barack Obama on Thursday opined on the complexity of the issue Thursday, illustrating the complexity of an issue that so far has provoked debate but little momentum toward a resolution.
“In a society in which so much of your life is digitized, people have a whole new set of privacy expectations that are understandable,” Mr. Obama said in Chicago. “They also expect, though, that since their lives are all digitized that the digital world is safe, which creates a contradictory demand on government – ‘Protect me from hackers, protect me from terrorists, protect me from etcetera, etcetera, etcetera.”