New Federal Proposal Would Allow Law Enforcement to Access Encrypted Devices and Data

On June 23, 2020, the Senate Judiciary Committee Chairman Lindsey Graham and U.S. Senators Tom Cotton and Marsha Blackburn introduced a Lawful Access to Encrypted Data Act, a bill that would require service providers and device manufacturers to provide assistance to law enforcement with access to encrypted devices or data based on a court-issued warrant.

Highlights of the Lawful Access to Encrypted Data Act include the following:

• Once a warrant is obtained, the bill would require device manufacturers and service providers to assist law enforcement with accessing encrypted data if assistance would aid in the execution of the warrant.

• The Attorney General would be authorized to issue directives to service providers and device manufacturers to report on their ability to comply with court orders, including timelines for implementation.

• The Attorney General would be prohibited from issuing a directive with specific technical steps for implementing the required capabilities.

• Companies would be able to appeal in federal court to change or set aside the directive.

• The Government would be responsible for compensating the recipient of a directive for reasonable costs incurred in complying with the directive.

• The Attorney General would create a prize competition to award participants who create a lawful access solution in an encrypted environment, while maximizing privacy and security.

• The bill would fund a grant program within the Justice Department’s National Domestic Communications Assistance Center to increase digital evidence training for law enforcement and create a call center for advice and assistance during investigations.

The proposed legislation has already been criticized by a number of cybersecurity experts who argue that the bill would threaten privacy, civil liberties, and have unintended consequences.   Brian Krebs, a former journalist and author of the prominent cybersecurity blog summarized these concerns as follows:  “I think you could think of it as asking for the authority to look inside any digitally locked box. In all likelihood, we’ll open Pandora’s box. That is to say, the same ability, if granted to the authorities, will essentially be used or abused against us by our adversaries, whether they be nation-states, organized crime or others.”

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