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 The decision all but assures that the years-long political impasse
over encryption will continue even in the wake of the high-profile
effort by the Department of Justice to force Apple to break into an
iPhone used by a gunman in last December's shootings in San
Bernardino, California.
President Obama suggested in remarks last month that he had come
around to the view that law enforcement agencies needed to have a
way to gain access to encrypted information on smartphones.
But the administration remains deeply divided on the issue, the
sources said.
The draft legislation from Senators Richard Burr and Dianne
Feinstein, the Republican chair and top Democrat respectively of the
Senate Intelligence Committee, is expected to be introduced as soon
as this week.
The bill gives federal judges broad authority to order tech
companies to help the government but does not spell out what
companies might have to do or the circumstances under which they
could be ordered to help, according to sources familiar with the
text. It also does not create specific penalties for noncompliance.
 Although the White House has reviewed the text and offered feedback,
it is expected to provide minimal public input, if any, the sources
said.
Its stance is partly a reflection of a political calculus that any
encryption bill would be controversial and is unlikely to go far in
a gridlocked Congress during an election year, sources said.
A White House spokesman declined to comment on the pending
legislation, but referred to White House press secretary Josh
Earnest's statements on encryption legislation. Last month Earnest
said the administration is "skeptical" of lawmakers' ability to
resolve the encryption debate given their difficulty in tackling
"simple things."
Tech companies and civil liberties advocates have opposed encryption
legislation, arguing that mandating law enforcement access to tech
products will undermine security for everyone. Several lawmakers,
including U.S. Senator Ron Wyden of Oregon, a Democrat, have vowed
to oppose any attempt to limit encryption protections in U.S.
technology products.
Even some intelligence officials worry that enabling law enforcement
agencies to override encryption will create more problems than it
solves by opening the door to hackers and foreign intelligence
services. Some also say it is unnecessary because the government has
other means of getting the information it needs.
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The Justice Department dropped its legal action against Apple last
week, saying it had found a way to hack into the phone.
The White House last year backed away from pursuing legislation that
would require U.S. technology firms to provide a "back door" to
access encrypted data. The backpedaling resembled a retreat by
President Bill Clinton's administration in the 1990s on efforts to
require a special computer chip in phones to give the U.S.
government a way to monitor encrypted conversations.
But the desire for encryption legislation among some intelligence
and law enforcement officials has never gone away, and it gained new
life after the Islamist militant-inspired attacks in Paris and San
Bernardino.
Obama, speaking at the South by Southwest entertainment festival in
Austin, Texas, last month, warned against "fetishizing our phones"
and said that doing nothing to address law enforcement's encryption
challenges "can't be the right answer."
Obama, however, also cautioned against Congress taking any action
that would be "sloppy and rushed."
Apple and others have called on Congress to help find a solution to
the problem of criminals and terrorists using encryption to avoid
surveillance. A separate proposal to form a national encryption
commission to further study the issue is also not expected to be
enacted this year.
Meanwhile, tech companies are stepping up their efforts to implement
encryption and other security measures. The Facebook-owned messaging
service WhatsApp announced this week that it had implemented
complete encryption of its service - and now cannot get access to
customer messages even if was ordered to by a court.
(Reporting by Mark Hosenball and Dustin Volz; Editing by Jonathan
Weber and Grant McCool)
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