Obama Administration Signals Potential Shift on Encryption

The Obama Administration is a house divided when it comes to encryption, and it's clear that thinking on the issue is an ever-evolving state. This was highlighted this week when Reuters reported the White House would not be supporting a bill empowering judges to order companies like Apple to aid law enforcement help in accessing locked and encrypted devices.

He's just a bill

Compare this to less than a month ago when President Obama said at South by Southwest that there has to be some concession to the the need to get at encrypted info:


The question we have to ask is, if technologically it is possible to make an impenetrable device or system where the encryption is so strong there's no key, there's no door, at all, then how do we apprehend the child pornographer? How do we solve or disrupt a terrorist plot? What mechanisms do we have available to even do simple things like tax enforcement if in fact you can't crack that at all. If the government can't get in, everyone is walking around with a swiss bank account in their pocket.

There has to be some concession to the need to get that information somehow. Folks who are on the encryption side will argue that any key whatsoever, even if it starts off directed at one device, could end up being used on every device. That's just the nature of these systems. That is a technical question. I am not a software engineer. It is technically true, but it can be overstated.

We've long heard that the executive branch was divided on the issue. To wit, while the FBI and the U.S. Department of Justice (DOJ) were making public statements and appearances on late night talk shows to talk about their need for backdoors, the NSA and the CIA were silent on the issue.

Former CIA and NSA Director General Michael Hayden spoke publicly on how the intelligence community recognized in the 1990s that the benefits of a strong and protected America outweighed the problems encryption imposed on law enforcement. Other intelligence professionals were saying the same thing.

Intelligence, the FBI, and the DOJ are all aspects of the Executive Branch in the U.S., and the disparate positions above were echoed by reports of divisions within the actual White House itself.

And now we have a bill sponsored by Senators Richard Burr (R) and Dianne Feinstein (D) that codifies exactly the kind of power that the FBI and DOJ have asked for. That bill gives judges the power to compel cooperation from tech companies to access their devices and services, though it fails to specify much of anything in its current iteration.

Reuters reported the bill "does not spell out what companies might have to do or the circumstances under which they could be ordered to help," citing sources who had seen the draft legislation.

This seems like exactly what is needed if you believe, like President Obama, that some concession to law enforcement's need must be made. Yet the White House isn't going to back the bill?

On the one hand, it could be little more than a political calculation. The bill isn't likely to go far. Despite bipartisan sponsors, few Democrats aside from Senator Feinstein support such measures. On the Republican side, only law enforcement hawks like Trey Gowdy of South Carolina and Jim Senssenbrenner of Wisconsin support these kinds of ideas.

Opposed are wide ranging bedfellows from those who understand the technology involved, folks opposed to the surveillance state, and libertarians opposed to any expansion of government's ability to meddle in people's lives. (See my coverage of President Obama's SxSW comments for a breakdown of the four camps when it comes to encryption.)

In that environment, this bill is going to go no where at the speed of light. The White House could be making a political calculation that supporting such a bill in such an environment is an exercise in futility.

Or, it could show that the internal divide on the subject of encryption is resulting in people thinking differently about it, and that their collective thoughts are evolving.

I suspect it's the latter reason.