The President faces an impossible choice on encryption legislation

The President faces an impossible choice on encryption legislation

A leaked version of a Congressional bill on encryption has everyone up in arms – even though it hasn’t been officially introduced yet.   The nine-page “discussion draft”, which had been cycling through a series of closed-door negotiations in the Senate for months, made its way into the public sphere this week with quite a bit of fanfare.  Now the knives are out – both for and against the bill.

So what’s in the proposed legislation?  The measure states that a company must provide “information or data” to the government “in an intelligible format” when served with a court order.  In other words, companies would be responsible for decrypting any information collected by the government.  If the company can’t decrypt something on its own, it is required to offer “technical assistance as is necessary to obtain such information or data.”

What kind of information is covered?  Just about everything.  Information on devices like phones and computers, information held in servers owned directly by companies and in the cloud, transcripts of chats and other communications, and metadata showing the information in context.

While it appears to be primarily aimed at law enforcement, the bill is actually a broader statement about where America stands on privacy rights and the status of information under the law.  The stakes are high – this bill will likely define civil liberties protection in the online world for many years to come.  Supreme Court challenges to whatever emerges are inevitable, and will be hard fought.

One of the many challenges facing legislators and the sea of lobbyists who have an interest in the bill is its constantly changing political context.  In just the last few weeks, the FBI’s case against Apple came and went, prompting what now appears to be the opening salvo in the coming policy battle over encryption, privacy, and civil liberties.  Microsoft joined the fight last week as well, suing the Federal government over “gag orders” which prevent it from notifying people that their cloud-based information has been the subject of a search.

The battle lines are already coming into focus.  The technology industry has come out strongly against the bill.  Technology companies are also claiming to protect the integrity of their product.  They say that any requirement to create “back doors” and other purpose-built intrusion mechanisms could be exploited not only by the government, but also by hackers.  In other words, the government is asking them to intentionally build a substandard, breakable product.

Members of Congress and the law enforcement community don’t buy these arguments, however.  They have a duty to protect the public, and lack the increasingly sophisticated digital tools needed to keep tabs on criminals and terrorists.  In an era where technology is rapidly outstripping the ability of the government to control its impacts, maintaining the ability to intervene is something that the authorities will jealously guard.

In the middle stands President Obama, who will soon be faced with a difficult political choice of his own.  The self-proclaimed technocrats in the administration usually side with the technology industry as a matter of course.  The President’s reputation is one of dispassionate consideration – a process which usually comes down on the side of targeted, nuanced actions.

Yet when technology is pitted against the government’s own powers and enforcement mechanisms, nuance is likely to be thrown out the window.  The standard political logic used by the administration to date will no longer apply.  As the debate plays out in the public sphere and behind closed doors on Capitol Hill, we can expect to see a great deal of pressure on the President.

Up to this point, he has remained purposely silent.  But watch this space – the President’s ultimate approach will be a significant indicator of how the government understands and uses technology.  In the meantime, we can expect that a lot of ink (or pixels) will be devoted to this issue.  The technology industry should get ready for a bumpy ride.