White House Not Backing Encryption Legislation, Say Sources

April 6, 2016, 9:56 PM UTC
File general view of the White House in Washington
A general view of the White House in Washington in this September 30, 2013 file photo. REUTERS/Yuri Gripas/Files - RTSCJU8
Photography by © Yuri Gripas — REUTERS

The White House is declining to offer public support for long-awaited legislation that would give federal judges clearer authority to order technology companies like Apple to help law enforcement crack encrypted data, according to sources familiar with the discussions.

The Obama administration’s refusal to either endorse or oppose legislation from Senators Richard Burr and Dianne Feinstein, the Republican chair and top Democrat respectively of the Senate Intelligence Committee, stems in part from ongoing divisions among various federal agencies over encryption, the sources said.

Those divisions persist despite statements from President Barack Obama last month indicating that he supported efforts by the Department of Justice to ensure encrypted devices could be legally unlocked. He did not comment about the case brought to compel Apple (AAPL) to break into an iPhone used by one of the shooters in the December massacre in San Bernardino, California.

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The DOJ dropped its legal action against Apple last week, saying it had found a way to hack into the phone. The case has prompted new calls for a legislative solution to the encryption debate.

Burr is expected to introduce his legislation as soon as this week after vowing to do so for several months. Though the White House has reviewed the text and offered feedback, it is expected to provide minimal public input, if any, the sources said.

The non-committal stance reflects a political calculus that any encryption bill would be controversial and is unlikely to go far in a gridlocked Congress during an election year, sources said.

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A White House National Security Council spokesman did not immediately comment but referred to White House press secretary Josh Earnest’s statements on encryption legislation. Last month Earnest said the administration is “skeptical” of lawmakers’ ability to resolve the encryption debate given their difficulty in tackling “simple things.”

Burr’s proposal does not spell out how companies should provide access to data or the circumstances under which they could be ordered to help, according to sources familiar with the text. It also does not create specific penalties for noncompliance.

The White House last year backed away from pursuing legislation that would require U.S. technology firms to provide a “back door” to access encrypted data.

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But the desire for encryption legislation among some intelligence and law enforcement officials gained new life after the Islamist militants attacks in San Bernardino and Paris late last year.

Obama, speaking at the South by Southwest entertainment festival in Austin, Texas, last month, warned against “fetishizing our phones” and said that doing nothing to address law enforcement’s encryption challenges “can’t be the right answer.” Obama, however, also cautioned against Congress taking any action that would be “sloppy and rushed.”

Apple and others have called on Congress to help find a solution to the problem of criminals or terrorists using encryption to avoid surveillance. A separate proposal to form a national encryption commission to further study the issue is also not expected to be enacted this year.

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