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The New Encryption Bill Isn't Finished and Silicon Valley Already Hates it

The draft bill notes that "No person or entity is above the law."

Chip Somodevilla / Getty

Congress is poised to step into the encryption battle that has been raging in the courts and in the media, with legislation that would require technology companies to decrypt messages when served with a court order.

The leaked copy of a draft bill from Senators Dianne Feinstein and Richard Burr would require companies — from makers of “communications” devices like iPhones to secure messaging tools like WhatApp — to turn over information in response to a judge’s order.

In an apparent nod to the concerns about technological back doors raised by Apple and other technology companies in the San Bernardino case, the Compliance with Court Orders Act of 2016 says the government can’t require or ban any “specific design or operating system.”

Instead, the legislation is mute on technical solutions — noting companies must simply hand over the information, or provide the government with necessary technical assistance. It observes: “No person or entity is above the law.”

Technology advocates were quick to condemn the draft encryption proposal, saying it poses a legal conundrum for companies that give consumers control over their own encrypted communications.

“While companies should comply with lawful requests, it is simply not possible for a company to do so when a customer controls the only keys used to encrypt data,” said Daniel Castro of the Information Technology and Innovation Foundation, a nonpartisan research group. “In short, this bill sets up a legal paradox that would further muddy the waters about how and when the government can compel the private sector to assist in gaining access to private information.”

The ACT/App Association, a trade group that represents more than 5,000 app developers, said the proposal would force companies to make the untenable choice between breaking the law and protecting consumer privacy. And it amounts to a government-mandated back door.

“It’s clear the bill authors lack a basic understanding of the technology industry or online commerce. The $8 trillion digital economy depends on secure encryption to function,” said Morgan Reed, executive director of ACT. “Back doors create a fatal vulnerability that compromises this protection. The senators might as well take a hatchet to the entire Internet economy.”

The Free Press, a nonpartisan group that advocates for speech rights, said the proposal would effectively outlaw the kind of encryption now being used by millions of Americans on billions of devices.

“If this dangerous bill passes, it would outlaw not just end-to-end encrypted communications but also the tools that protect our information from criminals, hackers and foreign governments working to undermine the security of millions of people and businesses,” said Gaurav Laroia, general counsel for the Free Press. “Our right to privacy should extend beyond in-person conversations to include communications made via the Internet and wireless networks. Encryption is the tool that makes this possible.”

Here’s a copy of the draft legislation:

307378123 Burr Encryption Bill Discussion Draft[2]

This article originally appeared on

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