Senate Intelligence Committee chairman Richard Burr, R-N.C., is planning to draft legislation that would punish tech companies that defy judicial orders to "decipher encrypted communications" for government investigators, according to a new report.
"Burr hasn't finalized plans for how legislation would be designed, and several people familiar with the process said there hasn't been an agreement among any other lawmakers to pursue criminal penalties," according to The Wall Street Journal. "It's also unclear whether Mr. Burr could marshal bipartisan support on such an issue during an election year that has divided Washington in recent months."
A fight between privacy advocates and national security experts over data encryption came to a head last week when a federal judge ordered Apple to help federal officials "unlock" an iPhone owned by one of the San Bernardino terrorists. Apple CEO Tim Cook is refusing to cooperate.
The FBI and Apple officials have been negotiating behind the scenes for months, but the issue went public when the executive branch secured a court order that Apple must help. Cook is promising to appeal the ruling. "We can find no precedent for an American company being forced to expose its customers to a greater risk of attack," Cook said. "For years, cryptologists and national security experts have been warning against weakening encryption. Doing so would hurt only the well-meaning and law-abiding citizens who rely on companies like Apple to protect their data."
Kansas Republican Mike Pompeo, a member of the House Permanent Select Committee on Intelligence, said that Cook's position was the real danger to Americans. "His decision to disregard national security interests by refusing a federal order to allow the FBI access to Syed Rizwan Farook's iPhone is a decision to hinder the investigation into the deadliest domestic terror attack since 9/11," Pompeo said Thursday.
That's an extension of a public case that national security officials have been building for months. They've argued that terrorists have already succeeded in carrying out attacks because of the technology. "People say, 'Why didn't you see Paris?' It was under the radar because they were using an app called Telegram and they were communicating through an encrypted application," House Homeland Security Committee Chairman Michael McCaul, R-Texas, said in December.
McCaul's statement followed FBI director James Comey's discussion of how encryption affected the investigation of the Islamic State-inspired shooting in Garland, Texas. "That morning, before one of those terrorists left and tried to commit mass murder, he exchanged 109 messages with an overseas terrorist," Comey told the Senate Judiciary Committee. "We have no idea what he said, because those messages were encrypted."
Burr's eventual proposal could receive bipartisan support from national security hawks. Sen. Dianne Feinstein, D-Calif., already endorsed legislation to weaken current technology. "Encryption ought to be able to be pierced," she told Comey in December.
Such a bill could put President Obama in an uncomfortable position when pressuring the Chinese government about its desire for government "backdoors" into technology systems.
"This is something that I've raised directly with President Xi," Obama said in March. "Those kinds of restrictive practices I think would ironically hurt the Chinese economy over the long term because I don't think there is any U.S. or European firm, any international firm, that could credibly get away with that wholesale turning over of data, personal data, over to a government."