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Barr Revives Encryption Debate, Calling on Tech Firms to Allow for Law Enforcement

Attorney General William P. Barr said on Tuesday that technology companies should stop using advanced encryption and other security measures that effectively turn devices into "law-free zones" that keep out law enforcement officials conducting criminal investigations.

"As we use encryption to improve cybersecurity, we must ensure that we retain society's ability to gain lawful access to data and communications when needed to respond to criminal activity," Mr. Barr said in his keynote address at the International Conference on Cybersecurity at Fordham University Law School in Manhattan.

The Justice Department has long pushed technology companies to help the government gain access to information on electronic devices, a conflict that last peaked in 2016, when investigators obtained a court order that required Apple to help the F.B.I. unlock an iPhone recovered after the mass shooting in San Bernardino, Calif., in December 2015.

Tensions eased after the F.B.I. found a way to get into the phone without Apple, but the case reinvigorated the debate over tech freedom, security and encryption.

That conversation gained momentum again at the end of last year, when the Australian Parliament passed a controversial encryption bill that requires technology companies to provide law enforcement and security agencies with access to encrypted communications.

The remarks were Mr. Barr's first significant speech on "going dark," law enforcement's term for how encryption and other technology innovations have made it harder for investigators to carry out court-approved wiretaps and search for information on electronic devices.

Mr. Barr said that allowing "lawful access" to consumer devices should not be incompatible with a company's business model.

"Our societal response to advances in technology that affect the balance between individual privacy and public safety always has been -- and always should be -- a two-way street," Mr. Barr said.

While the attorney general did not mention Apple by name, the company's strong encryption has long been a selling point. And several technology companies including Amazon, Facebook and Google signed a letter this month criticizing the new Australian law.

Mr. Barr also said that companies that sell encryption with the goal of ensuring "that law enforcement will not be able to gain lawful access" are "illegitimate."

Mr. Barr's position echoed that of former Justice Department officials, including James B. Comey, the F.B.I. director, and Rod J. Rosenstein, the deputy attorney general, who took the lead on the law enforcement side of what has been a long-running tension with technology companies and champions of personal privacy.

Privacy advocates have long argued that law enforcement can get most of the information it seeks by subpoenaing technology companies for user records and other data, and that those companies do not need to create ways to break into their own encryption at the behest of the government.

The F.B.I. director, Christopher A. Wray, and other officials have long argued that strong encryption was hindering crime solving, previously citing a total of 7,800 mobile devices that investigators were kept out of in the fiscal year that ended in September 2017, even though the bureau had the legal authority to gain access to them.

But last year, the F.B.I. acknowledged that it had erroneously inflated the number of smartphones and other mobile devices it has been unable to open because of encryption, blaming a programming error.

Privacy advocates immediately attacked Mr. Barr's speech.

"Encryption reliably protects consumers' sensitive data," said Brett Max Kaufman, a senior staff lawyer in the Center for Democracy at the American Civil Liberties Union. "There is no way to give the F.B.I. access to encrypted communications without giving the same access to every government on the planet. Technology providers should continue to make their products as safe as possible and resist pressure from all governments to undermine the security of the tools they offer."

Mr. Barr is assuming that the negative impacts of encryption on law enforcement investigations "far outweigh encryption's benefits for protecting individuals, business and the nation," said Riana Pfefferkorn, the associate director of surveillance and cybersecurity at the Stanford Center for Internet and Society.

"That assumption has never been borne out by evidence in the form of actual, accurate numbers about encryption's effect on law enforcement's ability to solve crimes," Ms. Pfefferkorn said.

But Mr. Barr said that the current debate over encryption was no different from earlier debates over how to balance privacy when searching a person's home or car or other objects, which is governed by the Fourth Amendment's constraints on unreasonable search and seizure.

"The Fourth Amendment strikes a balance between the individual citizen's interest in conducting certain affairs in private and the general public's interest in subjecting possible criminal activity to investigation," Mr. Barr said.

[Source: By Katie Benner, The New York Times, 23Jul19]

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