No Easy Answers, Just More Questions in Major Encryption Report

Anyone looking for a quick fix to the years-long debate over encryption systems that protect people’s personal information but frustrate law enforcement tracking criminals and terrorists won’t find it in a long-awaited study from the National Academies of Sciences, Engineering and Medicine released Thursday.

The consensus report, produced by a panel of tech industry, law enforcement and academic experts, spends roughly 100 pages laying out the problems posed by warrant-proof encryption systems and by law enforcement’s efforts to access them.

The report’s primary addition to the debate, however, isn’t a firm conclusion but a series of questions that lawmakers, regulators and companies should consider as they mull any proposal to provide law enforcement special access to decrypted data.

Those questions, in short, are: How much will this proposal help law enforcement? How much will it damage cybersecurity, privacy and civil liberties? How much will it diminish profits, competitiveness and innovation of U.S. companies that comply with the policy? How will this proposal affect actions by other countries? And, finally, how well can it be regulated?

“There are no easy answers to and many uncertainties in responding to these questions,” the report notes. “However, developing and debating answers to these questions will help illuminate the underlying issues and trade-offs and help inform the debate over government access to plaintext.”

The report acknowledges that the effects of specific tradeoffs may not be clear until months or years after a proposed change takes effect.

The debate over whether law enforcement should be able to get special access to encrypted communications first flared during the Clinton administration. It was renewed in 2014 when then-FBI Director James Comey began warning that encrypted communications were allowing criminals and terrorists to recruit and plan operations outside the view of law enforcement—a problem he dubbed “going dark.”

The problem is specific to end-to-end encryption, which shields the unencrypted contents of communications even from the company that’s providing the communication service. So, for example, when the FBI produced a warrant for information on San Bernardino shooter Syed Farook’s encrypted iPhone in 2015, Apple did not have access to the unencrypted information.  

Comey first urged Congress to consider a “legislative fix” for end-to-end encryption. When that fix wasn’t easily forthcoming, he urged tech companies to cooperate with the government on a solution that aided law enforcement without weakening encryption’s cybersecurity benefits, a call that’s been taken up by his successor Christopher Wray.

Tech companies, however, say there’s no way to give law enforcement special access to encrypted communications without opening up a new avenue that criminal hackers can also exploit, effectively weakening cyber protections for citizens’ personal information.

Also, if U.S. tech companies were forced to provide a law enforcement backdoor into encrypted systems, criminals and terrorists would simply begin communicating on systems built and sold outside the United States in nations where those rules don’t apply, tech companies say.

In addition to mooting the purpose of any encryption fix, this would also damage international sales for U.S. tech companies, especially in privacy-minded Europe where those companies were already damaged by their seeming complicity with National Security Agency spying revealed by Edward Snowden.

As the report notes, the intelligence community has been decidedly less vocal about the dangers of warrant-proof encryption—possibly because it’s easier for them to rely on unencrypted metadata, such as the time, length and duration of a phone call, or because they’re better able to hack through undisclosed flaws in existing encryption systems.

Lawmakers have proposed a handful of changes to encryption law since 2015, none of which have gained traction. The most law enforcement friendly of these—a proposal from Sens. Dianne Feinstein, D-Calif., and Richard Burr, R-N.C., which would have compelled companies in a situation similar to Apple’s after the San Bernardino shooting to help law enforcement crack into their systems—was never formally introduced.

A joint report from the House Judiciary and Energy and Commerce committees in December 2016 urged against mandating any technical changes to weaken encryption. Instead, the lawmakers said, law enforcement should improve its ability to glean information from metadata and to hack into criminals’ information without relying on tech companies’ cooperation.

The National Academies are private, nongovernmental institutions established by Congress to advise the nation on science and technology issues.