White House Silence on an Anti-Encryption Bill Means Nothing
Thursday morning, Reuters reported that the White House won’t support a proposed encryption bill that’s expected to go public in the coming days. Given the specific bill, that’s likely for the best. What it doesn’t mean, though, is that the Obama administration has suddenly turned its back on backdoors.
The bill in question is looming from Senators Richard Burr and Diane Feinstein, and has only been read by a handful of people. A White House spokesperson declined to comment on legislation that hasn’t yet been introduced. Even if the administration actively wanted legally mandated backdoors, though, the Burr-Feinstein bill would be an unlikely place to start.
It’s tempting to think of any encryption bill bubbling to the surface now as being hastily conceived, a byproduct of this winter’s Apple-FBI battle. In truth, the Burr-Feinstein bill has percolated since late last year. As Access Now digital rights advocate Nathan White explained to WIRED recently, the bill appears to be poorly constructed. It would allow federal judges to order tech companies to provide encrypted data, without providing any guidance around the circumstances under which those companies could be forced to comply, or regarding the penalties should they refuse.
In short, the bill reportedly does not treat encryption as the complex issue it is. It’s trying to untangle knots with a ball-peen hammer. That the White House would not support it publicly says less about the Obama administration’s views on encryption than it does reinforce that it understands just how much consideration it deserves.
White House press secretary Josh Earnest has said as much, consistently. “I continue to be personally skeptical … of Congress’ ability to handle such a complicated policy area, given [their] recent inability to handle simple things,” he said just last month, ahead of Obama’s SXSW speech. He and Obama both have been equally consistent in a desire to find a “common ground” between tech companies and law enforcement. By all accounts, they’re still open to backdoors, just not the way Burr-Feinstein are proposing.
Fortunately, the Burr-Feinstein bill won’t be Congress’s only shot at this. Representative Mike McCaul and Senator Mark Warner have spent the last several months gathering security experts to help shape a reasonable path forward, while the House Judiciary Committee and the House Energy and Commerce Committee recently formed a “working group” to do the same thing. That’s not to say either of those efforts will yield a bill that the Obama administration supports, but at least they’re taking a more considered approach.
In truth, it’s hard to tell what the Obama administration wants at this point. Its recent behavior (or lack thereof), says White, “makes me think that the Administration is neutral or simply doesn’t want to spend any more political capital. I hope the White House quickly clarifies their position.”
They’d better do so soon, if they want to have serious input. Encryption laws will happen at some point, hopefully as the fruit of expert consideration, not broad proclamations. This is too high-profile an issue for the legislature to not address. The real question is whether anything can be passed soon enough that the Obama administration will have a say at all.
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