White House doubts ‘constructive’ encryption legislation can pass

The White House on Tuesday cast doubt on lawmakers’ ability to develop and pass “constructive” legislation addressing encryption technology.

“Both their ability to pass legislation and put together constructive legislation that could pass are both questions that are significantly in doubt,” press secretary Josh Earnest told reporters. 

Earnest has expressed such pessimism before.

{mosads}“I continue to be personally skeptical, more broadly … of Congress’s ability to handle such a complicated policy area, given Congress’s recent inability to handle simple things,” he said during a March briefing.

Proposals have been circulating in both chambers in response to law enforcement concerns that terrorists and other criminals are using encryption technology to communicate beyond the reach of authorities.

But lawmakers have yet to coalesce around a proposal.

Earnest’s latest remarks come in the midst of a roiling dispute over one of the first pieces of significant encryption legislation.

The White House is currently reviewing a draft of the measure from Sens. Richard Burr (R-N.C.) and Dianne Feinstein (D-Calif.), the chairman and ranking member, respectively, of the Intelligence Committee.

The bill, called the “Compliance with Court Orders Act of 2016,” would direct companies to offer “technical assistance” to help government officials access encrypted data, according to a discussion draft first obtained by The Hill last week.

It joins a host of other proposals on the topic but stands out as the most controversial offering. The legislation has drawn widespread outrage from privacy advocates and technologists who say it will undermine online security and privacy. 

House Homeland Security Committee Chairman Michael McCaul (R-Texas) and Sen. Mark Warner (D-Va.) have introduced compromise legislation that would establish a commission to study how police might be able to access encrypted data without compromising privacy.

The bill is seen as the most likely measure to receive enough support to proceed — but it faces competition from a working group established by leaders from the House Judiciary and Energy and Commerce committees.

The White House last fall decided to back from supporting legislative options limiting encryption and although onlookers have been anticipating a new policy, the administration has not yet staked a position on the issue.

Jordan Fabian contributed.