Police and Tech Giants Wrangle Over Encryption on Capitol Hill

WASHINGTON — Cyrus R. Vance Jr., the district attorney of Manhattan, visited Washington late last month to argue his case on a pressing issue: encryption.

In a string of meetings with members of Congress, Mr. Vance told centrallawmakers that encryption needed to be diminished during criminal investigations. During a 45-minute session with Senator Angus King, an independent from Maine who is on the Senate Intelligence Committee, Mr. Vance said his office had 230 iPhones that might contain crucial information for cases but were useless because Apple refused to help the police break the encryption on the devices.

“I wanted to express a sense of urgency around resolution of this issue,” Mr. Vance said in an interview about his Washington visit.

A day after Mr. Vance was on Capitol Hill, tech executives including Kent Walker, the general counsel of Google, and Brad Smith, president of Microsoft, also met with lawmakers — but with a very different message on encryption. Tech executives at the meetings said they were concerned about any laws that would force companies to weaken the security of their technology, according to news officials representing these companies.

This kind of behind-the-scenes lobbying has become de rigueur in Washington as the battle over encryption shifts to Capitol Hill. It is the next phase of a bitter divide that spilled into public view this year when Apple refused to comply with a court order to help bypass security functions on an encrypted iPhone used by an attacker in the San Bernardino, Calif., mass shooting last year. Doing so would have let the F.B.I. gain access to the phone. That case ended after the F.B.I. found an alternative way into the device.

Yet the standoff between the United States government and Silicon Valley tech companies continues — and the flurry of activity around the issue is broadening. Last month, a Senate draft encryption bill, written by Richard M. Burr, Republican of North Carolina, and Dianne Feinstein, Democrat of California, rallied the attention of both sides. The bill would require tech companies to give access to encrypted data with court orders.

Law enforcement officials immediately announced their support of the bill and began to push lawmakers to back it. Trade groups representing tech companies like Apple and Facebook have flooded into congressional offices, sent letters expressing concerns that the bill weakens consumer privacy and security, and delivered scorching speeches about the proposals.

“This is an escalating fight,” said Robert D. Atkinson, president of the Information Technology and Innovation Foundation, a research firm based in Washington that is funded by tech companies including Google and Microsoft. “It’s become the focus now in Washington, with hearings and legislative activity.”

Law enforcement officials blame tech companies for creating the impasse.

“There’s no question our relationship with the tech industry has gotten worse, and now it seems like the tech industry is taking every opportunity they have to put up obstacles in our way, including trying to derail legislative efforts that would give law enforcement what they need to keep people safe,” said Terrence Cunningham, president of the International Association of Chiefs of Police.

Facebook, Google and Microsoft declined to comment on their lobbying activity. An Apple spokesman said the company has met regularly with members of Congress on encryption and other issues.

The amount of lobbying on the encryption bill is unusual at this early stage of a bill’s life, showing the stakes involved. Tech companies are reluctant to give access to encrypted information from their users, for privacy reasons and because it may affect their businesses. Law enforcement officials say their efforts to prevent and solve crime are hampered if they cannot see digital data on phones, messaging services and other technology services.

“Today, terrorists and criminals are increasingly using encryption to foil law enforcement efforts, even in the face of a court order,” Senator Feinstein said in a statement about the draft bill. “We need strong encryption to protect personal data, but we also need to know when terrorists are plotting to kill Americans.”

The rhetoric in Washington around encryption has grown increasingly sharp. Last month, when the contents of the draft encryption bill were leaked, the president of the Consumer Technology Association, a trade group that counts Apple, Google, Facebook and Amazon among its 4,000 members, spoke to an audience filled with government officials at a lunch hosted by the Media Institute.

The bill is “dangerously overreaching and technically unsophisticated,” said Gary Shapiro, president of the association. “This bill would essentially make effective cybersecurity illegal in the United States, pushing companies that take cybersecurity seriously offshore.”

Other tech trade groups, including Reform Government Surveillance and the Business Software Alliance, have also waded into the fray, sending critical letters and meeting with senators to warn of the dangers of the bill. And Silicon Valley executives have, in increasing numbers, made the trek to Washington to make their cases directly.

Bob Lord, chief information security officer at Yahoo, visited several members of Congress in late April to talk about the technology behind encryption and to warn of the “unintended consequences” of legislation that could weaken security. While he did not specifically mention the Burr-Feinstein bill, he emphasized how consumers and human rights activists worldwide depend on encrypted technology for their safety and privacy.

“The notion that we would weaken encryption or provide back doors, those suggestions will have unintended consequences,” Mr. Lord said.

Law enforcement officials, in turn, have frequently met with the same lawmakers in the Senate and House intelligence, judiciary and commerce committees who are being targeted by the tech companies, according to congressional staff members. Chief Cunningham and other members of the police chiefs’ group have talked with Mr. Burr and Ms. Feinstein, given opinions during the drafting of the legislation and hosted panels on encryption for House and Senate lawmakers.

Tech companies have turned to certain politicians to champion their cause, such as Senator Ron Wyden, a Democrat from Oregon. On the day the draft encryption bill was introduced, Mr. Wyden, who voted against the 2012 copyright bills known as the Stop Online Piracy Act and the Protect Intellectual Property Act, which were also opposed by the tech industry, said he had been flooded with calls from tech companies wanting to know what he would do.

Mr. Wyden said he intended to filibuster the proposal. He has since met with Intelligence Committee members to persuade them to kill the bill.

“I have not filibustered many issues, but I think the stakes are enormous,” Mr. Wyden said in an interview. “The bill as written is a lose-lose, because it will create less security, American families will be less safe, and your liberty and privacy will be damaged.”

For all the lobbying, few lawmakers have expressed their views on the encryption bill.

“I’m reserving judgment,” said Senator King, who met with Mr. Vance last month. “The issues are so complex, it’s like trying to nail Jell-O to the wall.”

Source | WSJ