Ride the Lightning

It Never Ends: Federal Government Looks at Banning End-to-End Encryption Again

July 1, 2019

Politico reported on June 27 that senior Trump administration officials met last week to discuss whether to seek legislation prohibiting tech companies from using forms of encryption that law enforcement can’t break — a provocative step that would reopen a long-running feud between federal authorities and Silicon Valley.

The encryption challenge, which the government calls “going dark,” was the focus of a National Security Council meeting last Wednesday morning that included the No. 2 officials from several key agencies.

Senior officials debated whether to ask Congress to effectively outlaw end-to-end encryption, which scrambles data so that only its sender and recipient can read it. Tech companies like Apple, Google and Facebook have increasingly built end-to-end encryption into their products and software in recent years — billing it as a privacy and security feature but frustrating authorities investigating terrorism, drug trafficking and child pornography.

While the meeting did not result in an action plan, a decision to press for legislation would have far-reaching consequences for the privacy and security of tens of millions of consumers and effectively force companies such as Apple and Google to water down the security features on their smartphones and other devices.

A ban on end-to-end-encryption would make it easier for law enforcement and intelligence agents to access suspects' data. But such a measure would also make it easier for hackers and spies to steal Americans' private data, by creating loopholes in encryption that are designed for the government but accessible to anyone who reverse-engineers them. Weakening encryption would also endanger people who rely on scrambled communications to hide from stalkers and abusive ex-spouses.

Not all the players agree on what to do.

The DOJ and the FBI argue that catching criminals and terrorists should be the top priority, even if watered-down encryption creates hacking risks. The Commerce and State Departments disagree, pointing to the economic, security and diplomatic consequences of mandating encryption “backdoors.”

DHS is internally divided. The Cybersecurity and Infrastructure Security Agency knows the importance of encrypting sensitive data, especially in critical infrastructure operations, but ICE and the Secret Service regularly run into encryption roadblocks during their investigations.

An NSC spokesperson declined to comment on the meeting. Experts generally agree that Congress is unlikely to pass a bill requiring warrant-compatible encryption.

The climate is worse for the administration now with the Democratic-controlled House, where there is bipartisan opposition to undermining encryption. Still, the decision to hold an NSC deputies meeting — which has happened rarely under national security adviser John Bolton — suggests that the issue may not remain on the back burner for long. Personally, I think the House will defeat any proposed legislation watering down encryption – as indeed it should!

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