Attorney General Sessions Favors Encryption Backdoors

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By Daniel R. Stoller

U.S. Attorney General Jeff Sessions will likely continue to favor backdoors to consumer encrypted data for law enforcement and national security purposes, which could hurt the tech industry’s reputation and revenues, privacy professionals told Bloomberg BNA Feb. 14.

Tech companies are aware that Sessions, an early supporter of President Donald Trump, largely shares the president’s view that national security and law enforcement access to consumer data shouldn’t be tightly restricted. Sessions promised during his confirmation process to uphold the law even when if it could mean putting himself at odds with the president. But he may be reluctant to put the brakes on Trump on matters of encryption, privacy and surveillance, privacy professionals told Bloomberg BNA.

Jennifer Daskal, associate professor of law at Washington College of Law at American University, told Bloomberg BNA that Sessions favors “strong law enforcement to access data” in lawful investigations. But if Sessions continues to promote encryption backdoors he may face practical, political and private sector backlash, she said.

Sessions has come out favorably for law enforcement access to encrypted data, an issue highlighted by the 2016 Apple-FBI battle over access to one of the alleged San Bernardino, Calif. terrorist’s encrypted iPhone. Apple resisted the demand, and before a court could rule in the case, the government announced that it had found a way to break the encryption without Apple’s help. During the encryption debate, Sessions spoke out against Apple’s stance.

A wider demand that tech companies install backdoors to allow the government to override privacy encryption would cost companies’ bottom lines and reputations without a clear benefit, Daskal said. She was counsel to Assistant Attorney General for National Security David S. Kris from 2009-2011.

Sessions will have a great opportunity to show to the U.S. tech sector and consumers that he’ll take their interests into account “by not overreaching on law enforcement access to encryption” and attempting to protect U.S. citizens privacy on a global scale, Daskal said.

Encryption Backdoors

The current-attorney general’s encryption stance also came to light in written responses to Sen. Patrick J. Leahy’s (D-Vt.) questions after the Senate Judiciary Committee’s confirmation hearing on Sessions. At it, Sessions called it critical for national security and law enforcement to “be able to overcome encryption, under lawful authority.”

Further, then-Senator Sessions (R-Ala.) told Bloomberg News in February 2016 that accessing data stored on mobile devices is critical to law enforcement. “Time and time again,” the information gleaned from mobile device data, or other encrypted messages, leads to “an immediate guilty plea,” he said.

While strong on his stance on encryption backdoors, Sessions cautioned in his responses to Leahy against law enforcement agencies abusing power to access encrypted data. Sessions didn’t elaborate on what he considered would be an example of such an abuse of power.

Optics, Not Substance?

Sessions and the DOJ are unlikely to deviate much from policy stances announced by President Barack Obama’s Attorney General Loretta Lynch, a think tank national security analyst told Bloomberg BNA.

The outcry from privacy advocates over Sessions becoming attorney general could be attributed to “optics rather than policy stances,” Susan Hennessey, fellow in national security in governance studies at the Brookings Institution, said. During the Apple-FBI encryption dispute, which took place during the Obama administration, the DOJ and FBI were both seeking encrypted data on a mobile device, she said. Although the Obama administration wanted the encrypted information, it wanted to work with the private sector to obtain the data, Hennessey said.

Where Sessions may deviate from Obama administration policies and actions is how aggressive he may be in obtaining the information and whether he’ll include the tech sector in any deliberations, Hennessey, who previously served in the office of general counsel at the National Security Agency, said. Time will tell if Sessions “will be the primary defender of the Constitution” or if he is a “hired gun for the Trump administration,” she said.

A DOJ spokesman declined to comment to Bloomberg BNA on Sessions’ record or policy stances on privacy, encryption or surveillance. Trump administration press officers didn’t immediately respond to Bloomberg BNA’s e-mail requests for comment.

With assistance from Chris Strohm in Washington

To contact the reporter on this story: Daniel R. Stoller in Washington at dStoller@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

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