White House non-committal on encryption legislation

The White House has announced that it will refuse to either endorse or oppose forthcoming encryption legislation. The line reflects continuing divisions within the country’s federal agencies over the issue. The legislation will provide federal judges with clearer authority to order technology companies to help law enforcement access encrypted data. President Barack Obama has previously suggested that he supports legal efforts to have encrypted devices unlocked. The non-committal stance may reflect the fact that the legislation will be controversial and won’t get far through Congress during an election year. Senior figures in the Senate intelligence committee, Senators Richard Burr (Republican) and Dianne Feinstein (Democrat), are behind the legislation, with Burr expected to introduce it in coming days.

The White House is declining to offer public support for long-awaited legislation that would give federal judges clearer authority to order technology companies such as Apple to help law enforcement crack encrypted data, according to sources familiar with the discussions.



The Obama administration’s refusal to either endorse or oppose legislation from senators Richard Burr and Dianne Feinstein, the Republican chair and top Democrat respectively of the Senate intelligence committee, stems in part from ongoing divisions among various federal agencies over encryption, the sources said.

Those divisions persist despite statements from president Barack Obama last month indicating that he supported efforts by the Department of Justice to ensure encrypted devices could be legally unlocked. He did not comment about the case brought to compel Apple to break into an iPhone used by one of the shooters in the December massacre in San Bernardino, California.

The DoJ dropped its legal action against Apple last week, saying it had found a way to hack into the phone. The case has prompted new calls for a legislative solution to the encryption debate.

Burr is expected to introduce his legislation as soon as this week after vowing to do so for several months. Though the White House has reviewed the text and offered feedback, it is expected to provide minimal public input, if any, the sources said.

The noncommittal stance reflects 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 National Security Council spokesman did not immediately comment 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”.

Burr’s proposal does not spell out how companies should provide access to data 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.

The White House last year backed away from pursuing legislation that would require US technology firms to provide a “back door” to access encrypted data.

But the desire for encryption legislation among some intelligence and law enforcement officials gained new life after the Islamist militant attacks in San Bernardino and Paris late last year.

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 or 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.