Apple, Facebook defend encryption during Senate grilling

Facebook and Apple defended their decision to block law enforcement from accessing communications among their billions of users during a contentious hearing on Tuesday, even as they face intensifying pressure from lawmakers and the U.S. attorney general.

The hearing came against a backdrop of reignited tensions between Silicon Valley and the government over whether tech companies are enabling criminal activity as they work to build privacy into their products.

While the tech industry has fought bitterly with Washington for years over the issue, it’s gained new urgency as Facebook works to encrypt its megapopular messaging services — a process that will prevent law enforcement, the U.S. government and the companies themselves from accessing any communications sent between users even if officials obtain a warrant.

Senators on the Judiciary Committee were largely united in their condemnation of the tech companies for refusing to build “backdoors” for law enforcement, which would allow police officers to open Apple’s iPhone and read Facebook Messenger communications if they obtained a warrant.

“When law enforcement believes a crime has been committed … and they get a court order, I want the government to be able to look and find out all relevant information,” Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) said.

The top lawmakers on the powerful committee, Graham and ranking member Dianne Feinstein (D-Calif.), threatened to work up legislation that would force the companies to create “backdoors” into encrypted messaging for law enforcement.

“I hope the tech community working with law enforcement can find a way to do it,” Graham said. “If y’all don’t, we will.”

Feinstein, who has long advocated for creating better access for law enforcement to see private messages for criminal investigations, called for action.

“I’m determined to see that there is a way that phones can be unlocked when major crimes are committed,” Feinstein said. “It is a vital piece of evidence — whether that’s liked by you or not — at the scene of a crime.”

Apple’s manager of user privacy Erik Neuenschwander and Facebook product management director Jay Sullivan argued end-to-end encryption allows people to communicate freely without fear of government or corporate surveillance.

And, despite almost a decade of wrangling over the issue, the tech industry still has not identified any way to build a backdoor that would create access for law enforcement only, as technologists say creating any vulnerability in a private system would likely pave the way for hackers and other bad actors to access those communications as well.

“We oppose intentionally weakening the security of encrypted systems, because doing so would undermine the privacy and security of people everywhere and leave them vulnerable to hackers, criminals and repressive regimes,” Sullivan told the committee.

The hearing is only the latest chapter in the ongoing fight over whether the tech industry’s push toward encryption is kneecapping law enforcement’s ability to access vital communications amid criminal investigations.

But there is new urgency to the debate as Facebook moves ahead in its encryption plans for Facebook Messenger, Instagram and WhatsApp — which are used by 2.6 billion people around the world.

In October, the Trump administration urged Facebook to hold off on incorporating end-to-end encryption until the company can address “public safety” issues with law enforcement agencies around the world.

“We must find a way to balance the need to secure data with public safety and the need for law enforcement to access the information they need to safeguard the public, investigate crimes, and prevent future criminal activity,” the letter from Attorney General William Barr and acting Homeland Security Secretary Kevin McAleenan, alongside British and Australian officials, read. “Not doing so hinders our law enforcement agencies’ ability to stop criminals and abusers in their tracks.”

Ahead of the hearing on Tuesday, Facebook offered a response: No.

In a letter to Barr and the other officials, Facebook said it will not create a backdoor for law enforcement in its encrypted products, saying that doing so would threaten users’ safety.

“Cybersecurity experts have repeatedly proven that when you weaken any part of an encrypted system, you weaken it for everyone, everywhere,” wrote the Facebook executives in charge of Messenger and WhatsApp, Stan Chudnovsky and Will Cathcart.

If Facebook declines to acquiesce to the Trump administration and lawmakers’ demands, Republican senators told The Hill on Tuesday, Congress could take the matter into its own hands through legislation.

Sen. John Cornyn (R-Texas) said he’s considering legislation that the companies “wouldn’t like very much,” which might make the companies “responsible for child exploitation,” one of the major crimes that occurs on encrypted communications services.

“What we need to do is provide some incentives for the tech companies to work with law enforcement,” Cornyn, a member of the Senate Judiciary Committee, told The Hill. “I’m thinking about all sorts of things.”

Earlier this year, the Justice Department held a summit entirely focused on the “dangers” of encryption, most prominently its potential to shield child predators.

“Facebook would transform from the main provider of child exploitation tips to a dream come true for predators and child pornographers, a platform that allows them to find and connect with kids and like-minded criminals with little fear of consequences, a lawless space created not by the American people, or their elected officials, but by the owners of one big company,” FBI Director Christopher Wray said at the time.

In response to the new effort from Barr and other law enforcement officials, dozens of privacy and technology groups have vehemently pushed back. More than 100 groups and researchers in an open letter on Tuesday argued in favor of encryption, calling it a “necessary” protection for privacy.

“Strong encryption is essential for national security and public safety, and exceptional access mechanisms—commonly referred to as ‘backdoors’—would create significant security risks,” the groups wrote. “More than 100 allies have come together to signal the importance of implementing encrypted communications services for all users.”

But lawmakers on Tuesday insisted they were ready to act.

Graham said he is “deadly serious” about potential legislation.

“I’ll give them a few months here to figure out what they can do,” Graham said after the hearing.