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Encryption: What Happened to the Government's Push for New Laws?

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By Jonathan R. Tung, Esq. on May 31, 2016 6:59 AM

Do you remember the public furor and spittle that came out of the iPhone versus FBI battle just a scant few months ago? Do you also remember how momentum behind a national initiative to force phone makers into complying with law enforcement access to encrypted data reached a fever pitch? Whatever happened to that law?

It's dead, or at least effectively so, according to Fortune. And this demonstrates a very interesting point about politics, teeth gnashing and the collective memory. Our politicians don't seem to have the endurance to stick it through.

In the Wake of San Bernardino

Everyone remembers the Southern California massacre in San Bernardino that left 14 victims dead. While Jim Comey did battle with Apple and other phone companies to gain access to Syed Farook's iPhone, other policymakers were not-so-quietly pledging to push for a law that would require companies like Apple and Samsung to install "back-door" access to their encrypted devices whenever law enforcement came knocking.

The initial bill was drafted by senators Richard Burr and Dianne Feinstein and had been drifting in the houses of Congress. The hullabaloo behind the bill was quite an event, but the initial draft seemed to launch past the funny zone into the "that's just bad" zone. Still, the technologically ignorant seemed poised to push this thing forward. But lately, it appears to be dead. What happened?

The Final Push

Apparently, much of the loss of momentum is due to lack of White House support for any such legislation. In the words of Michael Hayden himself, "They've dropped the anchor and taken down the sail."

It's a 180 degree change that took us all by surprise. First of all, the push for the new encryption law gained the most traction when the FBI came out, guns blazing, taking Apple to Court and securing an order for the company to open up. Apple, for its part, stalled for time as long as possible which resulted in Tim Cook appearing before the senate committee to argue against the order. After all, he couldn't possibly lie down and condone the "software equivalent of cancer."

We think that he probably knew that the cancer analogy was specious, but it seemed to be helping the resistance movement. At the time, public opinion was neither here nor there on the issue. But, more important, enthusiasm for a national encryption bill was losing steam on Capitol Hill. The Intelligence Committee backed off and the House looked at the bill as if it were junk mail.

All That Broohaha ... for Nothing?

So the bill looks to be floating at the top of the goldfish bowl -- as it has been for at least a few weeks. It all ended with the FBI getting foreign help to crack the iPhone, which didn't reveal much. That's a hit for FBI credibility, almost as much as the way that that it vacillated back and forth on the decision to reveal how it was done or not.

Meanwhile, tech companies have gotten a second wind and have been redoubling their encryption efforts at a blazing rate. By the time this sentence is over, another patch will have been released to shore up weaknesses in either Android or iOS. If the government truly wants to fight cybercrime or terrorism using phones, it might have to learn how to best quell the dissent within its rank and to focus. As for engineers and tech geeks in Silicon Valley -- if there's anything they know how to do, it's focus.

Even though the FBI may have won the battle, it seems to be tech that's winning the war.

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