Senators Propose Bill Giving Law Enforcement Access to Encrypted Devices

June 25, 2020 Updated: June 25, 2020

A group of senators unveiled a bill this week that would allow law enforcement to legally access encrypted devices after obtaining the necessary court authorizations.

Sens. Lindsey Graham (R-S.C.), Tom Cotton (R-Ark.), and Marsha Blackburn (R-Tenn.) introduced the bill, known as the Lawful Access to Encrypted Data Act, on Tuesday. The bill aims to provide law enforcement the necessary tools to protect the public safety and bolster national security while trying to balance the constitutional rights of Americans.

If passed, the law will require large tech companies to help investigators with accessing encrypted data if the assistance would help in carrying out a warrant.

This comes amid tensions between tech companies like Apple and the Justice Department regarding the extent companies have to comply with government requests to assist with unlocking phones involved in criminal investigations.

In May, Attorney General William Barr expressed frustration over Apple’s repeated refusal to assist with investigators who were attempting to gain access to two iPhones used by the shooter who launched a terror attack at the Pensacola Naval Air Station in Florida in December last year, killing three U.S. sailors and wounding eight other Americans.

Barr said that the phones, which the FBI eventually managed to access, contained a “trove of information” that was “proven to be invaluable to this ongoing investigation and critical to the security of the American people.” He said that Apple’s decision to decline to assist carries “dangerous consequences for public safety and national security,” and costs large sums of taxpayer dollars and time for the FBI to break through Apple’s encryption.

“Tech companies’ increasing reliance on encryption has turned their platforms into a new, lawless playground of criminal activity. Criminals from child predators to terrorists are taking full advantage,” Cotton said in a statement. “This bill will ensure law enforcement can access encrypted material with a warrant based on probable cause and help put an end to the Wild West of crime on the Internet.”

Although the bill requires tech companies to comply with requests, they are also able to appeal in a federal court to change or set aside the request. The federal government will also be responsible for compensating the company for the reasonable costs incurred in complying with a request.

Meanwhile, the bill also prohibits the attorney general from issuing a directive with “specific technical steps for implementing the required capabilities.”

Groups advocating for digital privacy and free speech have criticized the bill. Kurt Opsahl, the deputy executive director of the Electronic Frontier Foundation, told the Daily Dot that the bill could put millions of American users at risk.

“This dangerous bill is nothing more than another attempt to legislate a security flaw into technology,” Opsahl told the news outlet. “There is no way to provide access to securely encrypted data without a backdoor—which could be exploited by bad actors, putting millions of ordinary users at risk.”

Meanwhile, Facebook said a bill that rolls back protections provided by end-to-end encryption “will make us all less safe.”

“End-to-end encryption is a necessity in modern life—it protects billions of messages sent every day on many apps and services, especially in times like these when we can’t be together,” Facebook said in a statement to CNET.

Apple and Google, who run the two largest cellphone operating systems, did not immediately respond to our request for comment.

Meanwhile, Barr applauded the senators’ decision to introduce the bill in a statement on Tuesday.

“While strong encryption provides enormous benefits to society and is undoubtedly necessary for the security and privacy of Americans, end-to-end encryption technology is being abused by child predators, terrorists, drug traffickers, and even hackers to perpetrate their crimes and avoid detection. Warrant-proof encryption allows these criminals to operate with impunity. This is dangerous and unacceptable,” Barr said in a statement.

“The bill announced today balances the privacy interests of consumers with the public safety interests of the community by requiring the makers of consumer devices to provide law enforcement with access to encrypted data when authorized by a judge.

“I am confident that our world-class technology companies can engineer secure products that protect user information and allow for lawful access. Data security and public safety are not mutually exclusive. Encryption should keep us safe and secure, not provide an impenetrable safe haven for predators, terrorists, and criminals.”

Follow Janita on Twitter: @janitakan