‘Crypto wars’ return to Congress

 

FBI Director James Comey has launched a new “crypto war” by asking Congress to update a two-decade-old law to make sure officials can access information from people’s cellphones and other communication devices.

The call is expected to trigger a major Capitol Hill fight about whether or not tech companies need to give the government access to their users' data.

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“It's going to be a tough fight for sure,” Rep. James Sensenbrenner (R-Wis.), the Patriot Act’s original author, told The Hill in a statement.

He argues Apple and other companies are taking the privacy of consumers into their own hands because Congress has failed to pass legislation in response to public anger over the National Security Agency’s surveillance programs.

“While Director Comey says the pendulum has swung too far toward privacy and away from law enforcement, he fails to acknowledge that Congress has yet to pass any significant privacy reforms,” he added. “Because of this failure, businesses have taken matters into their own hands to protect their consumers and their bottom lines.”

“If this becomes the norm, I suggest to you that homicide cases could be stalled, suspects walked free, child exploitation not discovered and prosecuted,” he said last week.

Comey is asking that Congress update the Communications Assistance for Law Enforcement Act (CALEA), a 1994 law that required telephone companies to make it possible for federal officials to wiretap their users' phone calls.

Many new mobile applications and other modern devices aren’t included under the law, however, making it difficult if not impossible for police to get a suspect’s records — even with a warrant.

Forcing companies to put in a “backdoor” to give officials access would also open them up to hackers in China and Russia, opponents claim, as well as violate Americans’ constitutional rights to privacy.

Comey claimed the FBI was not looking for a “backdoor” into people’s devices.

“We want to use the front door with clarity and transparency,” he said.

But for critics, that’s a distinction without a difference.

“The notion that it’s not a backdoor; it’s a front door — that’s just wordplay,” said Bruce Schneier, a computer security expert and fellow at the Berkman Center for Internet & Society at Harvard University. “It just makes no sense.”

It is reminiscent, he said, of the mid-1990s debate over the “Clipper Chip,” an electronic chip that federal officials wanted to insert in devices allowing them to access people’s communications. In the end, Congress did not require that companies use that chip in their technology.

Similar arguments have emerged every few years, as technology has gotten better and government agents have feared being left behind. 

“This is the third or fourth replay,” said Greg Nojeim, senior counsel at the Center for Democracy & Technology. “So far Congress has done the right thing and stood aside when companies are given the latitude they need to make communications devices and services more secure.”

Early indications are that it could be an uphill push for the FBI.

“I’d be surprised if more than a handful of members would support the idea of backdooring Americans’ personal property,” Sen. Ron Wyden (D-Ore.), who would staunchly oppose the measure, said in a statement shared with The Hill.

Rep. Darrell Issa (R-Calif.), the chairman of the House Oversight Committee, on Friday tweeted that the administration would be making a “tough sell” by pushing an update to CALEA.

“To FBI Director Comey and the [administration] on criticisms of legitimate businesses using encryption: you reap what you sow,” he wrote.

Rep. Zoe Lofgren (D-Calif.) predicted that any bill would have “zero chance” of passing.

Earlier this year, she and Rep. Thomas Massie (R-Ky.) introduced a measure to the defense spending bill banning the National Security Agency from using “backdoor” searches to spy on Americans through a legal provision targeting foreigners. That measure overwhelmingly passed the House 293-123.

While the NSA’s spying is different from the FBI’s requested updated to CALEA, the spirit is the same, she said.

“I think the public would not support it, certainly industry would not support it, civil liberties groups would not support it,” Lofgren told The Hill. “I think [Comey is] a sincere guy, but there’s just no way this is going to happen.”

Still, the FBI is unlikely to drop the pressure, especially if tech companies keep putting a focus on their privacy protections.

“This is a long-term discussion that has been coming and I expect to continue,” said Carl Szabo, a lobbyist for NetChoice, a trade group for online businesses including Google, eBay and Yahoo.

As for the chances of a CALEA update, he is opposed but isn’t assuming the FBI will stand down.

“I never underestimate anything,” he said.

“I always think that there is a chance, even if it’s not as sweeping as installing a front door master key on every mobile device, it could be installing a small backdoor.”