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Leak of Senate Encryption Bill Prompts Swift Backlash

Security groups condemned draft legislation that would let judges order tech companies to help law enforcement agencies break into encrypted data.
/ Source: Reuters

Security researchers and civil liberties advocates condemned draft legislation leaked from the U.S. Senate that would let judges order technology companies to assist law enforcement agencies in breaking into encrypted data.

The long-awaited bill is emerging just as the U.S. Justice Department redoubles its efforts to use the courts to force Apple to help unlock encrypted iPhones.

FBI Director James Comey testifies during a House Judiciary hearing on "The Encryption Tightrope: Balancing Americans' Security and Privacy" on Capitol Hill
FBI Director James Comey testifies during a House Judiciary hearing on "The Encryption Tightrope: Balancing Americans' Security and Privacy" on Capitol Hill in Washington March 1, 2016. REUTERS/Joshua RobertsREUTERS

The Senate proposal is an attempt to resolve long-standing disagreements between the technology community, which believes strong encryption is essential to keep hackers and others from disrupting the Internet, and law enforcement officials worried about being unable to pry open encrypted devices and communications of criminal suspects.

But the draft bill, leaked online Thursday evening, was planned as an overly vague measure that added up to a ban on strong encryption.

Kevin Bankston, director of the Open Technology Institute, said in a statement it was the “most ludicrous, dangerous, technically illiterate tech policy proposal of the 21st century.”

The leaked 9-page bill is the most current draft of the proposal, a source familiar with the language said.

It would give judges broad authority to order tech companies to hand over data in “an intelligible format” or provide “technical assistance” to access locked data. It does not spell out what form the data must take or under what circumstances a company would be forced to help.

It also does not create specific penalties for noncompliance.

In a joint statement, the authors of the bill, Senators Richard Burr and Dianne Feinstein, said they were still working with stakeholders to finalize the bill, which has repeatedly been delayed.

“The underlying goal is simple: when there's a court order to render technical assistance to law enforcement or provide decrypted information, that court order is carried out,” they said. “No individual or company is above the law.”

President Obama is expected to be personally briefed by White House chief of staff Denis McDonough on the proposal on Monday, sources said.

But the administration remains deeply divided over encryption and views it as too controversial to offer public support or opposition for the bill as it is currently written, according to sources.

A White House spokesman told reporters the administration had not decided whether to support the measure, as it is still in a draft stage.

The fight over encryption has been at the center of a months long dispute between Apple and the FBI over a phone linked to one of the San Bernardino, Calif., shooters.

Though the Justice Department withdrew its request in that case after a secret third party provided a way to unlock the phone, it announced Friday it would move ahead with an appeal of a court ruling blocking the government from forcing Apple to help unlock an iPhone in a separate New York drug case.

The bill from Burr and Feinstein would make it much more difficult if not impossible for Apple to refuse to comply in such cases.

An Apple attorney declined to comment about the draft legislation on a call with reporters.

Read More: White House 'Declines to Support Encryption Legislation'