Some in Intelligence Community Favor Stronger Encryption, Panelists Say
Three former federal employees who support stronger data and device encryption said Tuesday the debate over the issue is changing as several former intelligence and homeland security officials have come out in favor of end-to-end encryption. At a panel co-sponsored by the Center for Democracy and Technology (CDT) and New America's Open Technology Institute, Venable attorney Ari Schwartz said former CIA Director Michael Hayden and former Homeland Security Secretary Michael Chertoff are on the side of stronger encryption, and the intelligence community is no longer "as adamant" about having back or front doors to encrypted information. "They don't see it as essential" in doing their work, he said.
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The FBI and local law enforcement are pushing weaker encryption, said Schwartz, a former special assistant to President Barack Obama and senior director for cybersecurity at the White House. He said steps can be taken to alleviate the problem even though disagreements may still exist between the two sides. Schwartz was responding to a question from Andrew Schwartzman, senior counselor at the Georgetown University Law Center Institute for Public Representation, who said the encryption debate has taken on an "essentially theological" tone that appears to be in an "endless stalemate." CDT President Nuala O'Connor said many officials favor end-to-end encryption to better protect critical infrastructure among other assets and that the sides need to "move beyond the platitudes of I'm right, you're wrong."
The panel, hosted on Capitol Hill, also included former FTC Commissioner Julie Brill, who now co-leads Hogan Lovells' privacy and security practice, and former acting Commerce Secretary Cameron Kerry, a Brookings Institution visiting scholar and Sidley Austin attorney -- both of whom repeated familiar arguments in favor of encryption.
Brill said part of the problem is that state and local law enforcement agencies don't have enough resources to become technologically adept. She said encryption is "deeply important" to consumers and cited the FTC's best practices recommendation that encryption be a key part of data security for storage and transmission. Kerry said encryption is also a key part of trade in terms of maintaining the competitive position of U.S companies domestically and abroad, spurring innovation and economic growth and maintaining trust among businesses and consumers in digital technology and on the Internet. He said there's a real impact on U.S. companies if people believe a company's devices or services could be accessed by law enforcement officials.
Brill described the position of the FBI and the law enforcement community that back or front doors would be used by certain individuals and not others as "magical thinking." She said it's very difficult to control a technological tool once it's released. Schwartz said encryption will be -- and has been -- developed by bad guys like the terrorist group Islamic State of Iraq and Syria whether or not doors are created.
Both the House and Senate have created working groups to address the encryption problem, which became a major focus when the FBI took Apple to court to gain access to an iPhone used by one of the San Bernardino mass shooters. But several other cases are pending, mainly drug-related, that also involve access to iPhones and other devices (see 1603290059). While privacy and industry have slammed one Senate proposal to resolve the issue (see 1604080063), federal and local law enforcement officials have acknowledged that they need to collaborate more with the technology industry to find the best solution on encryption (see 1604190002).