The world’s top security and encryption experts who spent time last week at RSA Conference 2016 trying to figure out how to keep devices and communications secure yet also enable criminal investigations came up with nothing except to punt the issue to the U.S. Congress.
And Congress will take up the issue this week with Attorney General Loretta Lynch scheduled to testify to the Senate Judiciary Committee. The panel is looking into the Justice Department in general, but the topic is expected to come up.
She told RSA that what’s needed is dialog between the two sides of the encryption question, which has come to a head over Apple’s refusal to write software to help the FBI crack one of its iPhones that was used by one of the terrorists who shot up a San Bernardino public health facility in December.
At the same time, Lynch was also unyielding on the need for investigators to gain access to encrypted devices in order to track-down crime.
Again and again in panels and keynotes at RSA some of the industry’s top talent acknowledged the difficulty of making both sides happy, but did agree that the decision properly belongs with federal legislators after public debate that thoroughly views the matter from all sides first.
U.S. Rep. Michael McCaul of Texas, who also spoke at the conference, is pushing just such a course. He has written a proposal to create a federal commission on encryption with a mandate to write a report and recommend what to do. “This issue is one of the greatest law-enforcement challenges and a challenge to privacy and security of data,” he said during his talk at the conference. “Encryption works for us but when turned against us can be a threat.”
A panel of lawyers at the conference said a new law is needed that specifically addresses the issue of encrypted communications and whether and to what extent law enforcement should be able to compel parties to decrypt it.
In trying to get Apple’s help to break into the terrorist’s phone the government drew on a law called the All Writs Act, which gives courts power to issue orders to help investigators with court orders when no other remedy is specified in other laws.
They lawyers noted that when the government wanted phone companies to install devices to capture what numbers were called from rotary-dial telephones, a new law called Communications Assistance for Law Enforcement Act (CALEA) was enacted. “No one was thinking about the All Writs act when CALEA was written,” says Stewart Baker, a partner in law firm Steptoes & Johnson.
He questioned whether the All Writs Act actually covers the Apple case as the FBI says it does.
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