Burr discussion draft of encryption legislation released, gains support

U.S. Sen. Richard Burr (R-NC) recently released a discussion draft of legislation that would reinforce court orders seeking to protect Americans from criminals and terrorists.

Burr, the chairman of the Senate Select Committee on Intelligence, and Vice Chairman Dianne Feinstein (D-CA) released a discussion draft of the Compliance with Court Orders Act last week.

“I have long believed that data is too insecure, and feel strongly that consumers have a right to seek solutions that protect their information – which involves strong encryption,” Burr said. “I do not believe, however, that those solutions should be above the law. I am hopeful that this draft will start a meaningful and inclusive debate on the role of encryption and its place within the rule of law. Based on initial feedback, I am confident that the discussion has begun. We remain eager to sit down and discuss a way forward with all who are willing to engage constructively on this critically important and challenging issue.”

With the discussion draft’s release, Burr and Feinstein are now soliciting input from the public and stakeholders before the bill is officially introduced.

“Law enforcement cannot do this alone and I have long sought legislation that would compel application developers and phone manufacturers to adhere with orders from a court,” New York City Police Commissioner William J. Bratton said. “As terrorist acts rock Europe, law enforcement’s ability to legally intercept communication is critical to uncovering the next plot. No key piece of evidence in disrupting an attack or identifying a child predator should be beyond the reach of the law and I again, commend both Senators for taking this important step. The safety of New Yorkers and our nation depend on it.”

The bill would establish that providers of communications services and devices should protect the personal privacy of their users while also complying with court orders and legal requirements. Covered entities under the bill include device manufacturers, software developers, electronic communications providers, remote communication service providers, and wire and electronic communication providers, among others.

“No entity or individual is above the law,” Feinstein said. “The bill we have drafted would simply provide that, if a court of law issues an order to render technical assistance or provide decrypted data, the company or individual would be required to do so. Today, terrorists and criminals are increasingly using encryption to foil law enforcement efforts, even in the face of a court order. We need strong encryption to protect personal data, but we also need to know when terrorists are plotting to kill Americans.”

“Never before in our country’s history have criminals and terrorist had access to technology that could allow them to communicate nationally or internationally without any ability for law enforcement to legally access the evidence of their conspiracies,” Reynaldo Tariche, president of the FBI Agents Association, said. “This scenario – often described as ‘going dark’ – is creating new and dangerous risks of crime and terrorism.”

The bill would not give the federal government new legal authorities to collect communications or information.