White House casts doubt on encryption legislation

The White House on Friday cast doubt on the ability of Congress to solve the debate over unbreakable encryption with legislation.

{mosads}“I continue to be personally skeptical, more broadly … of Congress’s ability to handle such a complicated policy area, given Congress’s recent inability to handle simple things,” press secretary Josh Earnest said.

Proposals have been circulating in both chambers in response to law enforcement concerns that terrorists and other criminals are using encryption technology to communicate beyond the reach of authorities.

Privacy advocates and technologists have pushed back against regulation of encryption, arguing that providing any guaranteed access for law enforcement will undermine the privacy and security of all Internet users.

Attorney General Loretta Lynch indicated Wednesday that the Justice Department will not be proposing any legislation on encryption policy amid the current debate.

Lynch demurred when asked by Sen. Lindsey Graham (R-S.C.) whether her department would be willing to draft legislation to achieve its goal of preventing what Lynch earlier termed as “warrant-proof” encryption.

“I don’t think the department is at a point where we are drafting legislation here, but we are happy to work with you and others on the committee as you consider proposals,” Lynch said during a Senate Judiciary Committee hearing on department oversight.

A legal dispute between Apple and the Justice Department over the government asking the tech company provide access to locked iPhones has given new urgency to the conflicting legislation on Capitol Hill.

Apple is opposing a controversial court order to write software that would allow the FBI to hack into an iPhone used by Syed Rizwan Farook, who with his wife killed 14 people last year in San Bernardino, Calif.

Many believe that if Congress doesn’t step in, the courts could effectively set the guidelines for when the government can force companies to decrypt data.

“The reason why we have focused on litigation on a case-by-case basis is because, as we’ve noted, every platform is different,” Lynch said Wednesday.

But lawmakers have yet to coalesce around any proposal.

Sens. Richard Burr (R-N.C.) and Dianne Feinstein (D-Calif.) — the leaders of the Select Intelligence Committee — are working on a bill that would require companies to unlock phones under court order.

That bill has faced fierce resistance from the tech community, some influential national security leaders and tech-focused lawmakers on Capitol Hill, who argue such access would force companies to build vulnerabilities into their systems that malicious hackers would be able to exploit.

Feinstein told The Hill she passed the text along earlier this week to White House chief of staff Denis McDonough.

“My hope is since I was the one that gave it to Denis McDonough, they will take a look at it and let us know what they think,” she said.

The Obama administration’s response will determine the bill’s timing, Burr added.

The introduction “depends on how fast the White House gets back to us,” he said.

The White House last fall decided to back away from supporting similar legislative options, leading many to believe the administration will not champion the Burr-Feinstein effort.

Meanwhile, House Homeland Security Committee Chairman Michael McCaul (R-Texas) and Sen. Mark Warner (D-Va.) have introduced compromise legislation that would establish a commission to study how police might be able to access encrypted data without compromising privacy.

The bill is seen as the most likely measure to receive enough support to proceed.