If the Senate is looking for support regarding the political gridlock over data encryption, they are not going to get it from The White House.  President Obama has declined to offer support for the draft legislation expected to be released in the upcoming weeks.  The refusal to support the Senate in this endeavor suggests presidential opposition for government interference with technology companies and encryption.  Although the President recognizes that something needs to be done to address law enforcement’s encryption challenges, he cautioned against congressional action that would be “sloppy and rushed.”

Thus, the arduous task of drafting legislation related to technology continues as the Senate Intelligence Committee gears up for the introduction of the draft legislation.  The legislation would require U.S. technology companies to assist law enforcement crack encrypted data.  Although the draft legislation has yet to be released, it is expected that the bill will give federal judges broad authority to act in requiring tech companies to comply with the back door provision.  In its current state, the proposed legislation does not address penalties for tech companies that do not comply with the judge’s orders.

The obligation comes in the form of a required “back door,” which would grant the government access to the encrypted data.  On the heels of the Islamist militant inspired attacks in Paris and San Bernardino, the government argues that back door access to encrypted data would be used in efforts to prevent future acts of terrorism.  Advocates with an opposing view – such as the tech companies, themselves – argue granting authorization for law enforcement to access to encrypted data will result in a security concern for the greater population.

Although Congress is proposing this legislation in an attempt to combat terrorism, there is no definite stopping line for law enforcement’s impending access to all encrypted data.  The potential ability of law enforcement to access the encrypted information of all data users brings about Fourth Amendment concerns.  The Fourth Amendment is “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . .” and as such, grants citizens the right to privacy.  However, unlike in-person searches and seizures, searching and seizing encrypted data can be easily conducted without prior notice.  Although unreasonable searches and seizures would be a violation of the Fourth Amendment and thus, illegal, this sort of action may go undetected and easily fly under the radar.

The task then becomes ensuring law enforcement’s compliance with the Fourth Amendment, regardless of whether a judge grants permission to access the data.  Even if a judge were to approve access to encrypted data for a given tech company, how will the scope of the information be defined or regulated?  The draft legislation suggests there is broad authority and thus significant “wiggle room” for law enforcement to get their hands on a significant amount of private information.  Ultimately, the draft legislation does not concretely define the extent to which data encryption can be collected by law enforcement and certainly does not install confidence in the American people.

The draft legislation does not appear to be imperative in the fight against terrorism, and instead jeopardizes American citizens Fourth Amendment rights.  In the case of the San Bernardino attack, the U.S. government was able to use an alternative method for accessing the shooters phone to retrieve encrypted data.  If law enforcement was previously able to achieve their goal of accessing the information, it is insinuated there is no future need to require technology companies to assist in this endeavor.  The opinion that government meddling in retrieving data encryption is not warranted is arguably confirmed by the refusal of the White House to comment on this legislation.

Student Bio: Sam is a Staff Member of the Journal of High Technology Law. She is currently a 2L at Suffolk University Law School with a concentration in Business. She holds a B.S. in Business Management from Roger Williams University.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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