Intel chair: Encryption bill won’t specify noncompliance penalties

Forthcoming legislation meant to ensure that government officials can access suspects’ digital data won’t include specific penalties for companies that don’t comply.

Instead, the bill will leave it up to individual judges to decide how to penalize companies, the bill’s author told reporters on Tuesday.

{mosads}“The judge on the bench issues a court order. If they don’t honor the court order or appeal, that judge has full authority to exercise penalties, fines,” Sen. Richard Burr (R-N.C.) said in the basement of the Capitol.

“And that’s where it should be, because every situation is going to be different, so you can’t necessarily codify a certain route.”

The forthcoming bill from Burr, the head of the Intelligence Committee, and the committee’s top Democrat, Sen. Dianne Feinstein (Calif.), met widespread opposition from tech companies, rights groups and digital security efforts after an early copy was made public by The Hill last week.

The draft obtained by The Hill mandates that companies provide “technical assistance” to government investigators trying to access data protected by encryption algorithms.

Critics of the draft legislation worry that it is impractical and will ultimately weaken digital security by forcing companies to write “backdoors” into their systems.

The issue has been simmering for years but burst into public consciousness earlier this year when the FBI attempted to force Apple to write new software allowing officials to access locked data on the iPhone used by San Bernardino, Calif., terrorist Syed Rizwan Farook. The standoff threatened to explode into a major legal battle but was ultimately abandoned once the FBI used an unnamed outside company to access the phone.

The bill from Burr and Feinstein will face tough odds in Congress this year, given the stark divide over encryption that transcends party lines. The White House has also sent mixed signals on the legislation, raising the possibility that President Obama will decline to support the bill, which would be a death knell for Democrats.

White House spokesman Josh Earnest appeared to throw cold water on the idea Tuesday.

“Both [Congress’s] ability to pass legislation and put together constructive legislation that could pass are both questions that are significantly in doubt,” Earnest told reporters.

— Cory Bennett contributed