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.
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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.
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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.
Congress may have a tough time passing a law that protects encrypted communication, says James Lewis, director and senior fellow at the Center for Strategic and International Studies, who also spoke on the panel. That’s because it would be too easy to say a politician failed to protect the country in the face of threats. “I voted for terrorism,” he says. “That’s how it will be spun. This will never come to a vote.”
But if nothing is done before another act of terror that might have been prevented with a backdoor law, then Congress will act without reflection and come up with a bad law, says McCaul. “We cannot wait for the next attack,” he says. “After the attack rationality will be thrown out the window.”
He summed up the current options facing Congress: support creation of the study commission, amend CALEA to address encrypted communications, do nothing.
Meanwhile, cryptologist Adi Shamir, who helped develop the RSA public-key cryptosystem, said during an RSA panel that in the absence of any new law, Apple and other vendors of encryption devices ought to make ones that even they could not decrypt. That way they could say their products are secure and that they would be unable to comply with court orders like the one facing Apple.
Speaking on a different panel, former CIA Director Mike McConnell said that while he favored such backdoors 20 years ago, now he doesn’t. “The nation is literally being raped for its intellectual property,” he says. And one way to help stop that is strong encryption properly applied.
He was once an advocate of the Clipper Chip, encryption hardware where the keys to decrypt were held in escrow so law enforcement could crack the communications. Since then he has come to see that the country is digitally dependent and that its corporate secrets must be kept. “Ubiquitous encryption is something our nation needs to have,” he says.
Trevor Hughes, president and CEO of the International Association of Privacy Professionals who sat on the same panel, says that privacy and security isn’t an either-or proposition. Rather it’s a situation where both have to be addressed, but it also has to remain open to renegotiation. The conversation has to continue indefinitely to respond to new technology as it is developed, he says.