If you are an advocate of strong, unbreakable encryption and an opponent of backdoors, you’re not going to like what the new US Attorney General has to say. The fact that he is simpatico with FBI Director James Comey on the issue is doubly worrying to privacy enthusiasts. A Techdirt article explores their link and delves into the degree to which Sen. Sessions believes that accessing phones is critical to law enforcement.
In his confirmation hearings this week, Sessions trotted out the time-tested and time-worn mantra that strong encryption puts national security at risk. Hmm…. Seems like I’ve heard that more than a few times. In response to a senator’s question,
"Do you agree with NSA Director Rogers, Secretary of Defense Carter, and other national security experts that strong encryption helps protect this country from cyberattack and is beneficial to the American people's’ digital security?"
"Encryption serves many valuable and important purposes. It is also critical, however, that national security and criminal investigators be able to overcome encryption, under lawful authority, when necessary to the furtherance of national-security and criminal investigations."
At least he is consistent with his prior comments on the subject as a former law enforcement official and US senator. He most recently opined on the matter when it prominently arose in the San Bernardino shootings, and the ensuing row between Apple and the FBI over accessing the shooter's phone.
At that time, he commented in a hearing on the matter with Tim Cook, Apple’s CEO, that the information gathered from accessing a mobile phone would often result in a slam-dunk conviction for law enforcement:
“Time and time again, that kind of information results in an immediate guilty plea, case over."
By the way, in the interest of fairness and full disclosure, this hot-button issue spans political divides. It isn’t just a tenet of conservatives and Republicans. For example, a prominent liberal-leaning senator, Diane Feinstein (D- CA) and a few of her brethren had argued before the California shooting rampage that consumer devices featured too much security. At the time, this was music to then-Senator Session’s ears. Now, he will be Comey’s boss. What is that marriage likely to produce?
Well, Comey, who is being retained as FBI Director by the Trump White House, has been girding his loins for nearly two years on the issue. He believes that Americans do have the right to a measure of privacy in their own homes, cars, and electronic devices. But the government also has the right to invade that privacy when law enforcement feels it has probable cause.
This is, of course, the sticky-wicket. When does law enforcement have “probable cause?” Therein lies the rub: who decides when there is probable cause, and who will oversee judicious implementation of the policy?
What’s more, both Comey and Sessions choose to ignore the warnings of industry experts who say that it is impossible to build such an access mechanism that can't be found and exploited by others. If true, there go their national security arguments. And then there is the culture of leaking that is so pervasive of late. Just look at the last election and the aftermath to get an idea what a sieve the government apparatus is.
Even if there was some way to develop a magic key to encryption that only law enforcement could use, how long do you think it would be before the bad guys got hold of it? Now it’s time to introduce the third leg of the trinity, the veritable elephant in the room.
Analysis of the future for backdoors and encryption would not be thorough without the specter of President Donald Trump. Let’s face it: Sessions and Comey may have their point of view, but there will be no marching orders, nothing will become policy (let alone law) unless it comes from the top - the Oval Office.
Trump, the candidate, made his position on the subject very clear at the time of the Apple/FBI head-to-head last summer. He felt strongly that Apple should have complied with the FBI’s request to unlock the phone. So, it is unlikely that he would submit Sessions' name for Attorney General and allow Comey to stay on, unless they all were on the same page regarding backdoors. But more is at play.
Donald Trump is a businessman first and foremost, who is looking to deliver on his promises to goose the economy and spur job growth. Forcing companies to make their devices less safe to hackers - be they the good guys or the bad guys - is bad business, and is bound to put a damper on company sales. Sales equals jobs. His antennae always attuned to the economy, is it likely that President Trump wants to derail a $3 trillion economic engine? I don’t think so.
I expect that Trump, with a view already to the 2020 re-election campaign, will compromise with Silicon Valley in a way that allows him to save face with his law-and-order base, while preserving the goldmine of a campaign war-chest that Silicon Valley represented for the losing candidate in 2016.
I expect some flexibility, therefore. Some compromises from the author of The Art of the Deal, rather than an all-out offensive against strong encryption. However, remember who we’re dealing with here, and don’t mortgage the house on my bet. Stay tuned.