The White House has officially decided not to pursue any legislation that would require companies to give law enforcement access to encrypted data, The Washington Post reported.
The decision was made at an Oct. 1 Cabinet meeting, putting a conclusive note on months of debate. Instead, the administration will engage tech firms directly on potential methods of bypassing encryption.
“As the president has said, the United States will work to ensure that malicious actors can be held to account — without weakening our commitment to strong encryption,” National Security Council spokesman Mark Stroh told The Post. “As part of those efforts, we are actively engaged with private companies to ensure they understand the public safety and national security risks that result from malicious actors’ use of their encrypted products and services.”
The Obama administration has been tussling with Silicon Valley, digital privacy advocates and a coalition in Congress over whether the government should require companies to build their products in such a way that investigators could bypass encryption if needed.
Opponents have argued that any type of mandated access weakens online privacy and exposes digital data to hackers. But the administration, led by the FBI and Justice Department, has countered that unbreakable encryption is stymying investigators legitimately seeking criminals’ and terrorists’ digital communications.
While the decision to not pursue a legislative mandate is a step toward the opposition’s stance, it is far from a total about-face.
The White House has long signaled it was backing away from pressing Congress to pass a bill, choosing instead to ask the tech community for its help.
In recent hearings, FBI Director James Comey has displayed the shift in tactics. Instead of appealing to Congress, he has been appealing to Silicon Valley.
“There shouldn’t be venom” between law enforcement and Silicon Valley, he said during a House Intelligence Committee hearing in September. “We should all care about the same thing.
“I really believe we have not given this the shot it deserves,” he added.
But that same day, House Intelligence Committee ranking member Adam SchiffAdam Bennett SchiffHouse votes to hold Bannon in contempt of Congress The Hill's 12:30 Report - Presented by Altria - Manchin heatedly dismisses rumors of leaving Democratic Party Bannon eyed as key link between White House, Jan. 6 riot MORE (D-Calif.), said he had met with top officials from Facebook, Google and Twitter, who unanimously told him they were uninterested in developing such a solution.
In fact, they were almost turned off by Comey’s outreach.
“They framed it, and with some discomfort, as the intelligence community is coming to us and saying, ‘You’re brilliant, figure it out,’ Schiff said.”
In the wake of the Edward Snowden leaks, most prominent tech companies have moved to install encryption that even the companies themselves can’t crack. It’s an effort to both keep company data away from government snooping and also to meet increasing consumer demand for privacy-focused products.
“Look, there’s an economic alignment of their philosophy and their business here,” Schiff said. “I don’t think that they want to be in the business of trying to come up with a solution.”
Friday’s decision is also unlikely to fully satisfy privacy advocates.
Spurred by signs the White House may be changing its mind on encryption, privacy hawks have been upping the pressure on the White House to publicly endorse all forms of encryption, even if it locks out investigators.
That pressure is unlikely to subside because of Friday’s news.
“We’re pleased to see President Obama reject the notion of a policy that would mandate government access to the electronic devices of Americans,” said Neema Singh Guliani, ACLU legislative counsel, by email. “However, the president should go one step further and affirmatively reject any policy, voluntary or not, that would encourage companies to weaken the security of products and leave Americans' information and privacy vulnerable.”
Conversely, the decision could also rattle those on the other side fo the issue. The White House will likely see a renewed offensive from national security-centric lawmakers on Capitol Hill who have supported access to encrypted data.
Senate Judiciary Committee Chairman Chuck GrassleyChuck GrassleyAnother voice of reason retires Overnight Health Care — Presented by Carequest — FDA moves to sell hearing aids over-the-counter McConnell: GOP should focus on future, not 'rehash' 2020 MORE (R-Iowa) sent a letter to the Justice Department on Thursday asking why officials were backing away from its initial stance.
"I believe that the administration should use every lawful tool at its disposal and vigorously investigate each and every potential solution to this serious problem, as your testimony before the Committee implied it would," Grassley said.