On April 13, 2016, Senate Intelligence Committee Chairman Richard Burr (R-NC) and Vice Chairwoman Dianne Feinstein (D-CA) released a new draft of a bill that would effectively prohibit unbreakable encryption and require companies to comply with court orders to help the government access consumer data on computers or mobile devices. The release of the draft bill closely follows the Department of Justice’s (“DOJ”) legal battle with Apple, Inc. over granting access to an encrypted iPhone belonging to one of the perpetrators of the shootings in San Bernardino County, California. The DOJ was able to gain access to the data on the phone without compelling Apple, Inc. to provide assistance, but the episode has brought out a strong debate as to how to balance the competing needs of public safety and individual data privacy.
Supporters of the effort to enact this legislation say that Congress must provide law enforcement with the ability to investigate cases in which encrypted devices may contain key evidence. In a joint statement, Burr and Feinstein said that “[n]o individual or company is above the law,” and that the government must be able to ensure adherence to court orders aiding ongoing law enforcement activities. Opponents of the measure include Senator Ron Wyden (D-OR) – also a member of the Senate Intelligence Committee – who has stated that the proposal would effectively require a “backdoor” to be built into devices and software that would “damage the security and well-being of the country by weakening encryption.” Other opponents argue that the bill would undermine American technology companies by giving foreign competitors (not subject to the same contemplated “backdoor” requirements) an economic advantage over U.S. companies.
The latest draft of the bill contains significant new sections from previous drafts that had been released. The new version specifies what kind of crimes and threats would trigger the bill's mandate: crimes with the potential for death or serious bodily harm, foreign intelligence or terrorist threats, federal crimes against minors, and serious violent felonies or drug offenses. In addition, the latest draft of the bill extends the obligation of companies to cooperate with court orders relating to state crimes or threats, while previous drafts had focused only on federal crimes. The draft bill also includes language stating that impacted companies would be compensated for the costs of providing technical assistance or data.
Reporter, Ehren K. Halse, San Francisco, +1 415 318 1216, ehalse@kslaw.com
