Justice Department waves legislative stick at tech sector over encryption

It's the first time the Trump administration has suggested it might try to impose a legislative solution to the problem law enforcement faces of increased use of end-to-end encryption.

If U.S.-based tech companies don’t find a way to allow cops with a warrant to access to encrypted communications — a move derided as a crypto backdoor by critics — the Trump administration may propose legislation to force them, according to Deputy Attorney General Rod Rosenstein.

Addressing law enforcement officials at an anti-terrorism conference in Utah, Rosenstein went further than other officials have this year in threatening the tech sector with legislative action that would compel them to provide technical means for court-ordered wiretaps or device searches.

“I hope that technology companies will work with us to stop criminals from defeating law enforcement. Otherwise, legislation may be necessary,” he warned.

He recalled the aftermath of the San Bernardino terror attack, when Apple successfully fought off court orders aimed at forcing it to create a backdoor into the iPhone used by the shooter.

“Unfortunately, some companies are unwilling to help enforce court orders to obtain evidence of criminal activity stored in electronic devices,” he said.

The “use [of] encrypted communication channels” by terrorists and other criminals was “one of our most significant and growing challenges,” he added. “We can disrupt attacks only if we are able to learn about them.”

Although encryption techniques to protect email, messaging and voice communications has been commercially available for more than two decades, their use exploded after the Edward Snowden leaks made it clear that the NSA was able to access internet communications in bulk and scan them for messages of intelligence interest. Law enforcement officials refer to this as “going dark.” It’s a “novel threat to public safety,” Rosenstein said.

“We need to preserve cybersecurity, without depriving law enforcement of the ability to lawfully access data when lives are at stake and our Constitution and laws allow it,” he said.

In May, shortly before President Donald Trump fired him, then-FBI Director James Comey told the Senate Judiciary Committee that he didn’t know “yet” whether the Trump administration would push legislation to enforce court-ordered access to encrypted communications.

“The Obama administration was not in a position where they were seeking legislation. I don’t know yet how President Trump intends to approach this. I know he spoke about it during the campaign. I know he cares about it, but it’s premature for me to say,” Comey said.

In June, Rosenstein himself addressed the issue when he went to Capitol Hill to justify the Justice Department’s budget request, but again, he made no reference to legislation.

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