On January 25, 2016, at the State of the Net Internet Policy Conference in Washington, D.C., Assistant Attorney General Leslie Caldwell from the Department of Justice and Commissioner Terrell McSweeny from the Federal Trade Commission spoke separately on whether regulatory agencies should have “back door” access to encrypted consumer data. The primary argument for “back door” access to encrypted information by law enforcement personnel has been to facilitate investigative efforts to thwart criminal and terrorist activities, including cyberattacks. Caldwell called such access “essential” to national security interests, and highlighted that while online information security is a critically important priority, so is the protection of “our values and our safety.” Conversely, McSweeny, while recognizing the difficulties encryption poses to law enforcement, said she was “worried deeply” about mandatory back doors, which she felt could make consumer data less secure.
Caldwell’s position—in line with other leaders in the law enforcement community including Attorney General Loretta Lynch and FBI Director James Comey—is that technology companies should design their encryption in such a way that they can break through it when the government presents them with a search warrant. Comey, in particular, has been a strong opponent of unbreakable encryption, stressing that law enforcement must be able to access certain data and communications in order to investigate terrorism and other criminal activity. In response, many in the technology community have argued that there is no way to design encryption that only certain actors, including law enforcement, can break for limited purposes. Facing customer unrest following the recent public outing of U.S. government mass surveillance programs, many companies such as Google and Apple have implemented encryption programs that even they cannot break. State legislatures are also joining the fray, as bills recently introduced in New York and California would seek to ban smartphone encryption entirely.
Reporter, Ehren K. Halse, San Francisco, +1 415 318 1216, ehalse@kslaw.com.
