The Justice Department's latest bid for a law enforcement-friendly solution to "strong encryption" on smartphones and other consumer devices has fallen flat with the tech community and appears highly unlikely to spur action on Capitol Hill.
Congressional sources say there is little likelihood of legislation advancing any time soon that would require tech companies to maintain an ability to access data on an encrypted device under court order — despite a top DOJ official's urgent call for a new law addressing what he described as "warrant-proof" technology on mobile and other internet-connected products.
Deputy Attorney General Rod Rosenstein on Oct. 10 blasted tech companies for allegedly refusing to cooperate on the encryption issue, which flared into public view following attacks in San Bernardino and Paris in which terrorists reportedly used encrypted devices to communicate.
"Our society has never had a system where evidence of criminal wrongdoing was totally impervious to detection, especially when officers obtain a court-authorized warrant," Rosenstein said in a speech at the U.S. Naval Academy. "But that is the world that technology companies are creating."
Law enforcement refers to such communications as "going dark," and has complained that the tech community's products outstrip the government's ability to gain access in criminal probes and intelligence activities.
This was a top priority for former FBI Director James Comey, who initiated a dialogue on the issue with tech companies that largely went nowhere. New FBI Director Christopher Wray, at his confirmation hearing in July, stepped gingerly around the issue and suggested he knew "how to talk to the private sector" and would "try to get them on board."
The tech community — and its allies in Congress — have rejected the idea that it should build in "back doors" or other ways to get past the security of their own products.
"The Department of Justice should be using their bully pulpit to promote the adoption of strong encryption and other defensive cybersecurity technologies, not demonizing companies who are attempting to protect their customers' private data and compete on cybersecurity," said Sen. Ron Wyden, D-Ore.
Wyden, pointing to Rosenstein's use of the "warrant-proof" technology wording, said, "Despite his attempts at rebranding, a government backdoor by another name will still make it easier for criminals, predators and foreign hackers to break into our phones and computers."
Tech groups and companies declined to comment on Rosenstein's speech. Sources said that with encryption legislation seemingly off the table, there is no need to engage in a debate with the administration over the issue.
"Our industry has engaged and will continue to engage with law enforcement and the administration to address this critical issue in a way that does not create more vulnerabilities to be exploited by bad actors — something that would almost certainly cause serious physical and financial harm to American citizens," said one source close to the IT industry. "Protecting individual privacy and advancing national security is of utmost importance to us — it's not a binary choice, we can and must do both."
Multiple congressional GOP sources close to the issue said there was no progress on encryption and Congress won't be addressing it in the near-term.
The House and Senate Judiciary committees would have prime jurisdiction, according to sources, but have made no moves toward advancing legislation so far.
Likewise, the office of Senate Intelligence Chairman Richard Burr, R-N.C., declined to comment, though Burr led efforts to craft legislation in the last Congress with then-Intelligence ranking member Dianne Feinstein of California, who is now the top Democrat on the Senate Judiciary Committee.
Those efforts fizzled amid opposition from the tech sector and a lack of support from the Obama administration.
There does not appear to be a viable legislative vehicle in sight for action on encryption, regardless of how DOJ uses its bully pulpit to flog the issue.
Charlie Mitchell is editor of InsideCybersecurity.com, an exclusive service covering cybersecurity policy from Inside Washington Publishers, and author of "Hacked: The Inside Story of America's Struggle to Secure Cyberspace," published by Rowman and Littlefield.