Legislation may be needed to solve the Justice Department’s ongoing problem with uncrackable digital encryption, Deputy Attorney General Rod Rosenstein said Wednesday.
Speaking at the 10th Annual Utah National Security and Anti-Terrorism Conference in Salt Lake City, Utah, Mr. Rosenstein called strong encryption one of the “most significant and growing challenges” currently faced by law enforcement and raised the possibility of passing laws limiting its use.
“The use of encrypted services poses a novel threat to public safety. We can disrupt attacks only if we are able to learn about them,” Mr. Rosenstein told attendees, according to remarks published by the Justice Department.
Robust, hard-to-crack encryption became a hot-button issue after a married couple killed more than a dozen people in San Bernardino, California, in Dec. 2015 and left behind a password-protected and purportedly impenetrable Apple iPhone. The Department of Justice sued Apple in federal court the following year in hopes of compelling their assistance with respect to cracking into the phone, but ultimately relented after seeking the help of an undisclosed, third-party security company at a hefty cost.
Investigators have continued to encounter issue attempting to glean evidence from safeguarded smartphones and eavesdrop on communication platforms increasingly protected with strong encryption in the wake of San Bernardino, and Mr. Rosenstein said Wednesday that lawmakers may have to intervene if their problems persist.
“After a terrorist attack, obtaining stored electronic information is an effective and necessary law enforcement technique. But, as we saw after the San Bernardino attack, obtaining electronic data can be time-consuming, expensive, and uncertain if technology providers refuse to cooperate,” Mr. Rosenstein said.
“Unfortunately, some companies are unwilling to help enforce court orders to obtain evidence of criminal activity stored in electronic devices. I hope that technology companies will work with us to stop criminals from defeating law enforcement. Otherwise, legislation may be necessary,” Mr. Rosenstein added.
Absent legislation, Mr. Rosenstein previously requested more than $20 million in federal funding back in June devoted entirely toward solving the government’s inability to crack strong encryption — a dilemma Washington for years has referred to as “going dark.”
“The seriousness of this threat cannot be overstated,” he testified on Capitol Hill at the time. “This phenomenon is severely impairing our ability to conduct investigations and bring criminals to justice.”
James Comey, the former FBI director ousted by President Trump in May, said during a congressional hearing days earlier that roughly 46 percent of the approximately 3,000 smartphones and other electronic devices seized by investigators during a recent six-month span were effectively impenetrable because of strong encryption.
“That means half of the devices that we encounter in terrorism cases, in counterintelligence cases, in gang cases, in child pornography cases, cannot be opened with any technique,” Mr. Comey told the Senate Judiciary Committee. “That is a big problem. And so the shadow continues to fall.”
“The Obama administration was not in a position where they were seeking legislation,” Mr. Comey said at the time. “I don’t know yet how President Trump intends to approach this.”
Tech companies including Apple and Google have previously opposed the government’s attempts at weakening or bypassing strong encryptions on account of security and privacy repercussions and have fought in the past against efforts in the U.S. and abroad to outlaw encryption.