Analysis | The Cybersecurity 202: The Justice Department is giving up on an encryption truce with Big Tech
By Joseph Marks
U.S. Assistant Attorney General for the National Security Division John Demers in 2018 in Washington, DC.
SAN FRANCISCO – The Justice Department has essentially given up hope that tech companies will voluntarily build into their products a special way for law enforcement to access encrypted communications to help track terrorists and criminals, a top official says.
Instead, the department is focusing on getting legislation that forces companies to cooperate – and is hoping encryption-limiting laws in Australia and the United Kingdom will ease the path for a similar law in the United States, said John Demers, assistant attorney general for national security.
The shift illustrates how law enforcement believes it now has a political advantage in the debate over warrant-proof encryption – especially in
“I've never seen such a bipartisan appetite for legislation," Demers said of that hearing. "It seems to me that in Congress something has shifted and it's shifted in favor of trying to find some solution to this problem.”
That's a sea change from 2016, when the FBI and Justice Department sought to appeal to Big Tech to find a compromise, as prospects for encryption-limiting legislation seemed all but dead. Back then, the momentum seemed to be security experts who argued there’s no way to give police special access to encrypted systems without raising the risk that criminal hackers could also break into those systems.
The FBI stepped back that year from a legal standoff with Apple in which it tried to force the company to help it crack into an encrypted iPhone used by San Bernardino shooter Syed Farook. And two years later the bureau was rocked by internal watchdog reports that found it had rushed to litigation against Apple without exploring other ways to crack into the phone and repeatedly overstated how many cases were foiled by encryption.
Demers pointed to two big changes since then that have given the government’s encryption arguments juice.
First, Congress and the broader public are feeling a lot less sympathetic to big tech companies in the wake of myriad privacy scandals and after Russian operatives co-opted social media to spread disinformation during the 2016 election.
“If you look at what the feeling is about social media companies in Congress today versus what it was
Second, Australia passed a first-of-its-kind law allowing police to force companies to give them access to encrypted communications in 2018 and the United Kingdom passed a more limited law in 2016.
Demers hopes those laws will create a model for how lawmakers in the United States might limit encryption, he said. But he’s also hoping if encryption-limiting laws spread that will knock back one big argument made by U.S.
“If their competitors are in these other countries [with encryption-limiting laws]
Justice officials have also shifted their messaging on encryption, talking less about the danger of
Facebook refused to change its plans, saying limiting encryption would damage
PINGED, PATCHED, PWNED
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