Encryption Without Tears

[Commentary] In an increasingly digital world, strong encryption of devices is needed to prevent criminal misuse of data. But technological innovation must not mean placing individuals or companies above the law. Today, the FBI is unable to gain access to data on many of the mobile devices they obtain that are password protected...We are circulating a proposal in the Senate to ensure that technology does not undermine the justice system.

The draft proposal requires a person or a company—when served with a court order—to provide law enforcement with information (in readable form) or appropriate technical assistance that is responsive to the judicial request. This will enable law enforcement to conduct investigations using the communications involved in criminal and terrorist activities. Our draft bill wouldn’t impose a one-size-fits-all solution on all covered entities, which include device manufacturers, software developers and electronic-communications services. The proposal doesn’t define the technological solutions or tell businesses how to solve the problem. It provides compensation for reasonable costs that businesses may incur when complying with a court order. We want to provide businesses with full discretion to decide how best to design and build systems that maintain data security while at the same time complying with court orders. We are not asking companies to provide law enforcement with unfettered access to encrypted data. We aren’t even asking companies to tell the government how they gain access to this encrypted data. All we are doing is asking companies to find a way to keep their data secure while also cooperating with law enforcement in terrorism and criminal investigations.