Burr-Feinstein: New Smoke From a Rather Old Fire

Published: Apr 16, 2016 09:32am EDT
By Gary Bowen, for Konsume Technology

Please Note: This article was updated Apr 16, 2016 @ 11:46am EDT

 

After a draft was first “leaked” late last week to a firestorm of controversy, the long awaited (and by concerned Americans – feared) Burr-Feinstein Compliance with Court Orders Act’s discussion draft was officially released by the bill’s co-authors – Senate Select Committee on Intelligence Chairman Richard Burr (R-N.C.) and Vice Chairman Dianne Feinstein (D-Calif.).

In its current form, if passed, the bill will force technology companies – once legally compelled through a subpoena – to either decrypt their customers’ communication content at the request of law enforcement, or hack into their own products to provide the requested information.  Such precedent would eviscerate online security represented by end-to-end encryption.

Reaction to the Burr-Feinstein draft has been swift, and in some cases, highly provocative. Julian Sanchez who studies privacy and technology as a Senior Fellow at the Cato Institute said on Twitter that it, “may be the most insane thing I’ve ever seen offered as a piece of legislation.”  And political pushback was swift, led by Senator Ron Wyden (D-Ore.) who tweeted he would “do everything in my power” to derail the bill.

The draft’s authors maintain the measure will “limit the use of encryption in consumer technology; yet not affect commercial infrastructure and businesses.” But that brings about a King Solomon-esque challenge of how to divide the baby without killing it.  “No one’s above the law in this country; no company, no individual, no organization,” said the lead in the bill’s draft.  But the devil is in the details of whether or not individual privacy and the world of truly secure technology can coexist in a free society.

While President Obama maintains that strong encryption is important, he also wonders how much sense it makes to create security systems with no back door: where terrorists, child pornographers, and other cyber criminals can operate more clandestinely.  And even though he sees both sides of the debate, so far his administration has not taken a stand on Burr-Feinstein. It’s really no surprise, as the President typically takes a “wait and see” approach until proposals or drafts become actual bills; which in this case, likely won’t happen before the November elections.  But he has said he hopes for legislation that would not be "sloppy and rushed."  A groundswell of protest claims Burr-Feinstein already is.

Given today’s strident political arena, the odds of any controversial bill being passed by an already gridlocked Congress in this election year seem dubious at best.  White House Press Secretary Josh Earnest recently underscored that idea when he said the Obama administration is, "skeptical" of lawmakers' ability to resolve any complicated debates because, “Congress already has difficulty tackling simple things.”

Another proposal calling for a national commission to study end-to-end encryption relative to the needs of law enforcement is also facing long odds of passage this year; apparently for the same reasons outlined by White House spokesman Earnest.

Enabling the War on Terror, Waging a War on Personal Privacy, or Both?

The authors of the bill, as well as federal officials, try to quiet the growing public outcry that governments could abuse these new powers; just as the Bush Administration promised no abuses of secret FISA Court proceedings against American citizens in the War on Terror.  But history tells us a different truth.  That pledge fell quite short in actual practice.  This supports the wave of protests about what could happen to personal privacy and other freedoms once the genie is out of the bottle, never to return.

Much of these objections center around the glaring impossibility of designing strong encryption that can be readily dismantled or pierced, yet keep business, government, or personal communications private and secure.  This latest bump in the debate arose during the FBI’s lawsuit against Apple to compel the tech giant to break into the iPhones of the San Bernardino terrorists; which was dropped immediately after the Bureau successfully outsourced the task to “an unnamed third party.” 

Despite most privacy advocates' confidence that Burr-Feinstein won't pass, the debate as to whether American’s individual rights to privacy has become a casualty in the new millennium continues to gain traction.  The American Civil Liberties Union calls the bill a "clear threat to individual privacy and security" and calls for the senate to "abandon its efforts" to even consider passing Burr-Feinstein. 

The fact that this is a proposed American law applying only to American companies begs the obvious question.  Without end-to-end encryption, and other leading-edge security measures, how can we control Russian and other organized hackers assaults on our corporate and personal data, or technological hostile governments like North Korea or China, which would lick their chops at vulnerable American corporate or banking information, power grids, and even data hosted by individuals; all of whom would suffer from compromised security.

A large portion of Americans have already changed their online behavior according to a recent study by the Pew Research Center since the Snowden leaks of 2013. The conclusion of this study suggests that millions of Americans: try to hide their online activity, and avoid the real or imagined “snooping of Big Brother.” 

True or not, this fear has a chilling effect on individual Americans’ behavior as citizens now avoid reading or saying something online they otherwise might.  And it normally follows that such aversions will grow, due to heightened fears that intelligence agencies could have even greater access to their “virtual privacy.”

Even though the odds of Burr-Feinstein being passed in its current state by this Congress, or something similar being passed by a future one, seems rather remote; the very thought signifies another inexorable step down the road of government impunity over the traditional rights of free Americans.


 

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