The Justice Department this week revived a long-simmering fight with tech companies by calling for “responsible encryption,” which would make it easier for law enforcement to obtain the data of criminal suspects.
In a speech on Tuesday to the U.S. Naval Academy, Deputy Attorney General Rod Rosenstein singled out Apple (AAPL) for refusing last year to write software to help the FBI access the iPhone of the dead terrorist who conducted the San Bernardino massacre.
“The data on the phone was encrypted, but Apple had the ability to assist the government in obtaining that data. The government sought Apple’s voluntary assistance. Apple rejected the government’s request, although it had the technical capability to help,” said Rosenstein.
The confrontation between Apple and the FBI produced months of courtroom drama in 2016, but quickly fizzled out when the FBI revealed it had found another means of getting into the iPhone.
This also led to a temporary halt of an intense debate over a growing number of tech companies’ decision to offer end-to-end encryption, which makes it hard or impossible for third parties to intercept their messages.
Rosenstein’s speech amounted to a new salvo in this debate as he touted “responsible encryption” as an effective way to balance privacy and the needs of law enforcement.
The tech world was having none of it, however, blasting Rosenstein’s phrase as a new euphemism for “backdoor” (a term for hidden software features that let companies or governments track users) and warning that it was a danger to privacy:
"responsible encryption" is that what we're calling backdoors these days?
— Steve Ragan ⚠️ (@SteveD3) October 10, 2017
The Deputy AG's attack on encryption relies on faulty premises, fallacies, and misunderstanding the Constitution https://t.co/m9692jkgjL
— EFF (@EFF) October 11, 2017
In denouncing Rosenstein’s proposal, the Electronic Frontier Foundation repeated familiar arguments that backdoors not only encourage government surveillance, but pose a danger to everyone’s privacy since hackers are quick to discover and exploit them too. In a blog post, the digital activist group also claimed secure technologies are nothing new—pointing to an unpickable lock that existed for 70 years—and claimed a mandatory imposition of “backdoors” would violate the First Amendment and other constitutional rights.
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It’s unclear why Rosenstein chose this week to renew the battle over encryption. As it stands, the FBI and other law enforcement agencies are able to crack the encryption on many devices, including iPhones, often by purchasing so-called vulnerabilities from private security companies. But not all of them.
“Today, thousands of seized devices sit in storage, impervious to search warrants. Over the past year, the FBI was unable to access about 7,500 mobile devices submitted to its Computer Analysis and Response Team, even though there was legal authority to do so,” Rosenstein said, echoing complaints made by New York’s District Attorney, Cy Vance, and others.
Rosenstein’s speech could be a prelude to a push by law enforcement to persuade Congress to pass legislation that mandates companies to provide backdoors in their devices. Such a law, though, would surely be challenged in court—meaning the debate over encryption will not end anytime soon.