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 Now, only months later, much of the support is gone, and the push
for legislation dead, according to sources in congressional offices,
the administration and the tech sector.
Draft legislation that Senators Richard Burr and Dianne Feinstein,
the Republican and Democratic leaders of the Intelligence Committee,
had circulated weeks ago likely will not be introduced this year
and, even if it were, would stand no chance of advancing, the
sources said.
Key among the problems was the lack of White House support for
legislation in spite of a high-profile court showdown between the
Justice Department and Apple Inc over the suspect iPhone, according
to Congressional and Obama Administration officials and outside
observers.
"They've dropped anchor and taken down the sail," former NSA and CIA
director Michael Hayden said.
For years, the Justice Department lobbied unsuccessfully for a way
to unmask suspects who "go dark," or evade detection through coded
communications in locked devices.
When the Federal Bureau of Investigation took Apple to court in
February to try to open the iPhone in its investigation of the San
Bernardino slayings, the cause gained traction in Washington. The
political landscape had shifted - or so it seemed.
The short life of the push for legislation illustrates the
intractable nature of the debate over digital surveillance and
encryption, which has been raging in one form or another since the
1990s.
Tech companies, backed by civil liberties groups, insist that
building law enforcement access into phones and other devices would
undermine security for everyone-including the U.S. government
itself.
Law enforcement agencies maintain they need a way to monitor phone
calls, emails and text messages, along with access to encrypted
data. Polls show the public is split on whether the government
should have access to all digital data.
The legal battle between the FBI and Apple briefly united many
around the idea that Congress - not the courts - should decide the
issue. But the consensus was fleeting.
Feinstein's Democratic colleagues on the Intelligence Committee -
along with some key Republicans - backed away. The House never got
on board.
The CIA and NSA were ambivalent, according to several current and
former intelligence officials, in part because officials in the
agencies feared any new law would interfere with their own
encryption efforts.
Even supporters worried that if a bill were introduced but failed,
it would give Apple and other tech companies another weapon to use
in future court battles.
Burr had said repeatedly that legislation was imminent.
But last week, he and Feinstein told Reuters there was no timeline
for the bill. Feinstein said she planned to talk to more tech
stakeholders, and Burr said, “be patient.”
In the meantime, tech companies have accelerated encryption efforts
in the wake of the Apple case. The court showdown ended with a
whimper when the FBI said it had found a way to get into the phone,
and subsequently conceded privately it had found nothing of value.
[to top of second column] |
THE FBI GOES TO BATTLE
A week after the San Bernardino attack, Burr told Reuters passing encryption
legislation was urgent because "if we don't, we will be reading about terrorist
attacks on a more frequent basis."
FBI Director James Comey told the Senate Intelligence Committee soon after that
encryption was “overwhelmingly affecting" the investigation of murders, drug
trafficking and child pornography.
A week later, the Justice Department persuaded a judge to issue a sweeping order
demanding Apple write software to open an iPhone used by San Bernardino suspect
Sayeed Farook, who died in a shootout with law enforcement.
Apple fought back, arguing, among other things, that only Congressional
legislation could authorize what the court was demanding. Many saw the Justice
Department's move as a way to bring pressure on Congress to act.
President Obama appeared to tacitly support Comey's court fight and the idea
that there should be limits on criminal suspects' ability to hide behind
encryption. But even as the drive for legislation seemed to be gaining momentum,
consensus was dissipating.
Senator Lindsey Graham, an influential Republican, withdrew support in a sudden
about-face.
“I was all with you until I actually started getting briefed by the people in
the intel community,” Graham told Attorney General Loretta Lynch during a
hearing in March. “I’m a person that’s been moved by the arguments of the
precedent we set and the damage we may be doing to our own national security.”
On the Democratic side, Senator Ron Wyden vowed to filibuster what he called a
"dangerous proposal," that "would leave Americans more vulnerable to stalkers,
identity thieves, foreign hackers and criminals."
Senator Mark Warner advanced a competing bill to form a commission to study the
issue.
A half dozen people familiar with the White House deliberations said they were
hamstrung by a long-standing split within the Obama Administration, pitting
Comey and the DOJ against technology advisors and other agencies including the
Commerce and State Departments.[L2N16C1UC]
They also said there was reluctance to take on the tech industry in an election
year.
(Reporting by Dustin Volz and Mark Hosenball in Washington and Joseph Menn in
San Francisco; Editing by Jonathan Weber and Lisa Girion)
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