Top Intel Lawyer: Terrorist Attack Would Help Government’s Encryption Argument


From The Washington Post:

White House officials have backed away from seeking a legislative fix to deal with the rise of encryption on communication devices, and they are even weighing whether to publicly reject a law requiring firms to be able to unlock their customers’ smartphones and apps under court order.

For the past year, law enforcement and the intelligence community have warned that an inability to obtain decrypted data is putting public safety and national security at risk, arguing it will allow criminals and terrorists to communicate securely. They have appealed to tech companies to voluntarily come up with solutions for their own products, and they don’t want to rule out legislation entirely.

But over the summer, momentum has grown among officials in the commerce, diplomatic, trade and technology agencies for a statement from the president “strongly disavowing” a legislative mandate and supporting widespread encryption, according to senior officials and documents obtained by The Washington Post.

Their argument: Ruling out a law and supporting encryption would counter the narrative that the United States is seeking to expand its surveillance capability at the expense of cybersecurity. They say the statement from the president also would help repair global trust in the U.S. government and U.S. tech companies, whose public images have taken a beating in the wake of disclosures about widespread National Security Agency surveillance.

And, they argue, it would undercut foreign competitors’ claims that U.S. firms are instruments of mass surveillance.

Strong pushback has come from national security officials who think that they ought to be able to retrieve text messages, photos and other material when they have a warrant and who think that their inability to do so is hampering criminal and counterterrorism investigations. If they can’t gain access to decrypted data, they warn, there will be a tragedy that could have been averted.

“The encryption issue . . . both in this country and abroad is going to have a major impact on how law enforcement and intelligence do their jobs,” said a senior administration official, who was given permission to be interviewed, but on the condition of anonymity because of the topic’s sensitivity. “It’s not surprising that they want to make sure that the public discourse includes a healthy debate about their issues as well.”

The official said that the White House’s goal is “driving towards a consensus where we can get an administration position out there.” But “there are people that have very strong opinions on both sides of this issue.”

Privately, law enforcement officials have acknowledged that prospects for congressional action this year are remote. Although “the legislative environment is very hostile today,” the intelligence community’s top lawyer, Robert S. Litt, said to colleagues in an August e-mail, which was obtained by The Post, “it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.”

There is value, he said, in “keeping our options open for such a situation.”

Litt was commenting on a draft paper prepared by National Security Council staff members in July, which also was obtained by The Post, that analyzed several options. They included explicitly rejecting a legislative mandate, deferring legislation and remaining undecided while discussions continue.

None mentioned calling for legislation.

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