Crypto-Wars Escalate: Congress Plans Bill To Force Companies To Comply With Decryption Orders

Tyler Durden's picture

Seemingly angered at the temerity of Apple's Tim Cook's defense of individual's privacy and security, Congress has escalated the 'crypto-wars' that are dividing Washington and Silcon Valley. In its most directly totalitarian move yet, WSJ reports that Senate Intelligence Committee Chairman Richard Burr (R., N.C.) is working on a proposal that would create criminal penalties for companies that don’t comply with court orders to decipher encrypted communications. It seems Edward Snowden was right, The FBI is creating a world where citizens rely on Apple to defend their right, rather than the other way around.

Liberty Blitzkrieg's Mike Krieger provides some much-needed background in the escalation of the crypto-wars. The feds, and the FBI in particular, have been very vocal for a long time now about the desire to destroy strong encryption, i.e., the ability of citizens to communicate privately. A year ago, I wrote the following in the post, By Demanding Backdoors to Encryption, U.S. Government is Undermining Global Freedom and Security:

One of the biggest debates happening at the intersection of technology and privacy at the moment revolves around the U.S. government’s fear that the American peasantry may gain access to strong encryption in order to protect their private communications. Naturally, this isn’t something Big Brother wants to see, and the “solution” proposed by the status quo revolves around forcing technology companies to provide a way for the state to have access to all secure communications when they deem it necessary.


Many technology experts have come out strongly against this plan. Leaving aside the potential civil liberties implications of giving the lawless maniacs in political control such power, there’s the notion that if you create access for one group of entitled people, you weaken overall security. Not to mention the fact that if the U.S. claims the right to such privileged access, all other countries will demand the same in return, thus undermining global privacy rights and technology safeguards.


We are already seeing this play out in embarrassing fashion. Once again highlighting American hypocrisy and shortsightedness, as well as demonstrating that the U.S. government does’t actually stand for anything, other than the notion that “might means right.” Sad.

And today's decision by Tim Cook not to comply with the government's latest demands confirms what Edward Snowden noted on Twitter:


Krieger adds that Tim Cook deserves tremendous credit for the courage to come out and so aggressively and publicly denounce what the FBI is trying to do.  

If he hadn’t decided to publicly challenge the court order and write a detailed treatise on precisely why, the American citizenry would be left completely in the dark. This would be an unethical and unacceptable position.


Second, this case could very well be headed up to higher courts. The greatest risk in these sorts of cases revolves around judicial ignorance when it comes to technology issues. The government knows all too well that most judges are clueless when it comes to tech, and that all they have to do is scaremonger with the word “terrorism” and judges will almost always default to the government position. Cook’s very public stance will at least shine some light on the issue and hopefully fuel robust, intelligent public debate which could inform judges ahead of being presented with technology related cases they don’t really understand.

Which is perhaps why Congress is escalating the situation, as The Wall Street Journal reports,

Senate Intelligence Committee Chairman Richard Burr (R., N.C.) is working on a proposal that would create criminal penalties for companies that don’t comply with court orders to decipher encrypted communications, four people familiar with the matter said, potentially escalating an issue that is dividing Washington and Silicon Valley.




Mr. Burr hasn’t finalized plans for how legislation would be designed, and several people familiar with the process said there hasn’t been an agreement among any other lawmakers to pursue criminal penalties. It’s also unclear whether Mr. Burr could marshal bipartisan support on such an issue during an election year that has divided Washington in recent months.


The bill could be written in a way that modifies the Communications Assistance for Law Enforcement Act, a 1994 law that compels telecommunications companies to construct their systems so they can comply with court orders.




Mr. Burr has spent months pressuring technology companies to work more closely with law enforcement and others to prevent encryption tools from being used to plan and carry out crimes. He warned technology firms that they need to consider changing their “business model” in the wake of the widening use of encrypted communications.

Read that last sentence again!! Since the scale of criminal penalty could be anything - as opposed to the 'cost of doing business' fines associated with the US banking system - this theoretically forces tech companies to comply, no matter what.

The critical question then, once again, as Mike Krieger concludes, is:

Do we really want to sacrifice overall privacy and security in order to get information from one person’s phone?

Or what about the following question posed by cryptography professor Matthew Green:


These are enormous questions with tremendous implications. I just hope we as a society choose wisely.

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ACP's picture

So, the government is basically bringing back slavery.

Here's a court order to work for us for free, now get to it or go to jail.

cheka's picture

trump to repeal johnson amendment

Durrmockracy's picture
Durrmockracy (not verified) cheka Feb 18, 2016 7:24 PM

OMG!  Crypto Warz!

cheka's picture

The Johnson Amendment refers to a change in the U.S. tax code made in 1954 which prohibited tax-exempt organizations from endorsing or opposing political candidates.


Proposed by then-Senator Lyndon B. Johnson, the amendment affects churches and other nonprofit organizations with 501(c) tax exemptions.[1] In recent years the Alliance Defending Freedom has attempted to challenge the Johnson Amendment through the Pulpit Freedom Initiative, which urges church pastors to violate the statute in protest. The ADF contends that the amendment violates First Amendment rights.[2]

501(c) prohibition

Organizations recognized under Section 501(c)(3) of the U.S. tax code are subject to limits or absolute prohibitions on engaging in political activities and risk loss of tax exempt status if violated.[3] Specifically, they are prohibited from conducting political campaign activities to intervene in elections to public office.

Durrmockracy's picture
Durrmockracy (not verified) cheka Feb 18, 2016 7:35 PM the end of the day, technology is what is important and not your "laws".  Just look at what's happened with file sharing, torrents.. it's forcing the legal landscape to be redefined.

WTFRLY's picture

All your base are belong to us

StateofFraud's picture

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

MrBoompi's picture

I'll tell you why this whole affair stinks.  First of all, the San Bernardino shooting was a flase flag attack.  They don't need any information from any phone as they already know the two dead Muslims had nothing to do with it.  Second, this drama makes it seem like the US government could not hack newer iPhones.  I find this very hard to believe.  I do believe they want a much faster way around the encryption though and I think this is the real impetus here.  Apple could have easily been on board with this scam, since they are now seen as knights in white armor as big defenders of our privacy.  Now we see Congress immediately jumping on board, the same Congress who can't fill a seat on the SC for a year.  It stinks.

Mr. Universe's picture

Ok, let's go with false flag. Perhaps there is some info on that phone that someone doesn't want the FBI to have. Who knows who that might be, someone from the Justice dept., NSA, CIA, might be pretty embarassing. Somehow I just don't see little Timmy standing up for "liberty and justice for all".

in4mayshun's picture

No, Timmy Cook doesn't care about privacy. He is playing his role as villain for the time being. Now congress has the ammunition they need to pass a law forcing EVERY company to build in back doors. Bravo Tim Cook, you deserve an Oscar.

PT's picture

A collection of thoughts:

I don't get it.  The FBI are really so stupid that they can't even hack a phone that is in their possession and get any information they want out of it???  Really???

Okay, let's go with the Public Key Encryption thingy.  Yes, I understand that a brute force attack could take the life-time of many universes to achieve.  So Apple sez the majic words and gives the FBI a back door.  But what if Mahmood Headchopper simply used his own encryption first and so Apple just decrypts an encrypted message?  Winning?

Perhaps the whole she-bang will be used to pass new laws to deliberately give everyone brain damage so they will be too stupid to have any clever plans.  And now we understand the peer-pressure associated with trying to make everyone drink lots of alcohol, and the onslaught of the glorification of stupidity of adult males that totally saturates the mass media.

Yay, Simpsons.  Having a brain makes you a terrrrrrst.

Modern technology.  Great for stupid people.  Useless for everyone else.

PT's picture

What about the technology that makes financial transactions non-hackable?  Will the FBI demand a back door for that too?  Physical, here we come!

Demdere's picture

By my thinking, the legal landscape is only a very small part of what technology is redefining.

It also provides a relatively straight-forward way to deal with the problem, and entirely without hurting anyone.

Lumberjack's picture

The pope owes Donald and apology and should have excoriated. Hillary and Obama for the mess in the M.E.

Aleppo bishop says ‘moderate’ Syrian rebels are killing civilians

Bishop Georges Abou Khazen, the apostolic vicar for Aleppo’s Latin-rite Catholics, said that there has been “continuous bombardment of civilians” by “groups that are called the ‘moderate opposition’” but “do not differ from the other jihadists (Islamic State and al-Nusra) other than by name,” according to Vatican Radio.

In some parts of the city, the Assad government’s “regular army is advancing with the help of the Russians, and in the liberated areas the operation of water and electricity is beginning again, the schools reopen.”


DontGive's picture

Don't support Crapple. You have control over that, as opposed to dealing the stupid fucking gooberment. Give em both fingers.

GhostofBastiat's picture

Some call it slavery...others call it a summons for a deposition, where the stipend doesnt cover parking in a commercial building miles from your house...and yet others call it Jury Duty, especially Grand Jury Duty...

Typical lawyers: forcing others to do their bidding for nothing!

PacOps's picture

JOHN MCAFEE: I'll decrypt the San Bernardino phone free of charge so Apple doesn't need to place a back door on its product
John McAfee, Contributor
9h 414,098  52
John McAfeeAP/Alan Diaz
Antivirus software founder John McAfee on Ocean Drive in the South Beach area of Miami Beach, Florida.

Cybersecurity expert John McAfee is running for president in the US as a member of the Libertarian Party. This is an op-ed article he wrote and gave us permission to run.

Demdere's picture

Not as much of an outsider as Hunter S. Thompson, perhaps, but John McAfee would do as the next President, I think.  He isn't as tested in public office or the ring as Jesse Ventura, but either McAfee has very great PR agents or he is a genuine serious guy.  Read his essay on how to pass through 3rd world roadblocks.

snex's picture

Will they be going after Bicycle Playing Card Co. if I start using the Solitaire Cipher? Who will they go after if I use PGP?

Normalcy Bias's picture

....Meanwhile, the border with Mexico is left WIDE OPEN.

Keyser's picture

Worse than that is Fukushima, yet no one seems to care... Where are the environmental / global warming pukes when the Pacific ocean is slowly being poisoned? 

peddling-fiction's picture

@Keyser wrote

"Where are the environmental / global warming pukes"

At some climate conference paid for by our tax dollar.

They are also cracking up at how stupid the sheeple are as well.

Global warming..... /lol

Normalcy Bias's picture

Amazing, isn't it? Judging by the total lack of coverage in the MSM, Fukushima appears to have been resolved.

A Lunatic's picture

Going for an 8% approval rating now I guess.......

Mr. Schmilkies's picture

So is Trump.  He would support this.

Soul Glow's picture

Psy-ops.  The government will force all phones to publically allow encryption and then the peasants of America will think a rules a rule.

peddling-fiction's picture

Just brilliant. /s

Make up this phony story first.

Then use it to further limit freedoms through planning a bill in congress a few days later.

Are they getting a bit lazy and or more shameless?

Max Cynical's picture

50/50 chance the RINO's cave on approving a new SC Justice...

BarkingCat's picture

99.99999% chance.

The problem is not that they are RINOs, but rather spiless weasels without any principals.

peddling-fiction's picture

Red or blue teams report to the same brotherhood.

ZombieHuntclub's picture

Exempting themselves I'm sure. You see kids, some animals are more equal than others. 

OregonGrown's picture


Mr. Schmilkies's picture

Our goobermint is having MAJOR control issues. And this is from a Republican?  

redd_green's picture

Republican, Democrat, doesn't much matter.  They are basically all broken, and corrupt.

nmewn's picture

"The bill could be written in a way that modifies the Communications Assistance for Law Enforcement Act,a 1994 law that compels telecommunications companies to construct their systems so they can comply with court orders."

Not to get all technical on your ass here Grupenfurher Burr but Apple is not a "telecommuincations company". Its a device maker, you know like a toaster. They don't make the electricity that powers the toaster, they make the ummm...toasters. 

Much like Verizon doesn't make Samsung or i-shit, they CARRY the stuff to the "toaster".

Or are you of the same statist mindset that all you fucktards are of mind of up there in DC where you think you can can take any previous law passed for one express purpose and expand it to include any other?

I just need to know before I start my petition drive for everyone having to buy an AK47 or face a fine/tax/penalty for the "common good".

Precedent dontcha know ;-)

Lumberjack's picture

Excellent point. They are not a telecom co..

nmewn's picture

I understand that people sometimes have a hard time following along with my analogies but its like them (the government) saying they need to open the breaker box because the toilet won't flush and they're wanting us to allow it in good faith because they're licensed

These are two separate disciplines, they want what is stored on a hand held device (static), not what is CURRENTLY FLOWING across a telecom system. Burr is an idiot and a dangerous man in the way he thinks, he thinks like an authoritarian.

He wouldn't think that way if it were a government (or private) hacker trying to unlock his daughters phone.

Besides, I'm not sure if I want "government employees" to have first access (and deletion privileges) to anything that might be on it with their track record of "recycling hard drives" and "home brew servers".

Sumpin might get lost in the translation ;-)

peddling-fiction's picture


Good eye (no pun intended for the i-phone) and good point. We are getting into fuzzy territory.

Still the big boys, FBI included, can decrypt that phone FFS.

They just want to do it faster and on demand.

Really what they want, is for no encryption whatsoever and a fullhd camera in your shower and bedroom...

The sick control freaks want more...



PoasterToaster's picture
PoasterToaster (not verified) Feb 18, 2016 7:37 PM

High Crimes and Misdemeanors.

CaptainDanite's picture

As a software developer for the past 3+ decades, one axiom of my trade is: "Make it idiot proof ... and they'll make a better idiot." I am inclined to believe that a similar (albeit inverse) principle holds true when it comes to the government's nascent attempts to ban cash, as well as force companies such as Apple to give the FBI/NSA/etc. the key to all private communications. People are infinitely resourceful and inventive. If totalitarian-minded bureaucrats attempted to exert themselves in America much more than they already have, and an oppressive government attempted to impose its will on the people by force, they would fail. There are just not enough of them compared to the rest of us. And, notwithstanding the desires of those who might like to impose a tyranny, I simply don't believe they have the raw power nor the organizational cohesion and wherewithal sufficient to pull it off. They might succeed in Balkanizing the United States, but they would never succeed in imposing totalitarian control over the entire country. Even if they had the whole of the American military circa 2003 -- at its imperial peak -- it wouldn't be enough to suppress all of the United States. Not even a tenth of it. They couldn't even subjugate the freaking quasi-stone-age Afghans to their will after fifteen years and trillions of dollars.

Furthermore, Americans are not Russians, or Chinese, or even Europeans for that matter. We have no cultural history of submission to totalitarian oppression. But we do have a cultural history of technological innovation and unfettered commerce. So let them attempt to use our own private communications against us, and take tangible media of exchange out of our hands. They will fail, and spectacularly so, and the revolution they foment will eventually engulf all of them in its flames.

Faeriedust's picture

Essentially correct.  The problem is that a major current of American culture derives from Scots and Irish transported here from Britain as indentured criminals, usually condemned for the crime of being not-English in land that the English wanted to confiscate. The lower/working/peasant class (the "cohees") in this country started out as guerilla insurgents from Day 1.  American BEGAN in rebellion against totalitarian authority, and despite mass migration from submissive Germany, the strain of rebelliousness is fundamental to our culture.  Some of us are more and some less, but the sheer masses of Americans are pre-primed devious resistance fighters, just waiting for a chance to practice their myths. Give them a GOOD excuse to start fighting instead of just playing pirate, and there isn't a power in the world strong enough, or most important, numerous enough, to beat them down.

Good gods, we have federal laws and databases in every state hooked up to force errant dads to pay child support, and you probably know how well THAT works.  I personally know 2 dads-on-the-lam, one who grabbed the kid and went invisible, and one who simply switched to cash-only jobs.  And I'm not exactly the most social person in the world.  If they can't crack that relatively simple problem, there's no way they can handle anything more complicated.

Sol Waxtend's picture

Suppose the Congress/TPTB pass a law that requires any communications company or other such as Apple to create a backdoor for the intelligence community. Any literate person coud defeat the FBI or NSA by making use of a cipher based on Vernam loops or a "one-time pad." The Russians used these during World War II, and our cryptoanalysts were only able to decipher a fraction of their messages. They still can't decipher them, because the key was  completely random and was the same length as the message. They did break some, but only because dumb agents re-used the pad. 


Demdere's picture

Yes, and even better encrypt a few with a bad-enough cypher they can break them, them encrypt some documents generated by Markov-chain technologies.

Signal to noise can work very strongly against them.

And they are entirely on the wrong side of all trends :

OutaTime43's picture

Theres a BIG difference between decrypting one phone and giving the FBI the tools to do so.  The order has Apple giving them the tools (develop software, etc.) to do it to ANY phone. That's where we need to draw the line.

Apple needs to take it to the supreme court. By then, we'll have a differnet slant on the court towards privacy and away from the police state.

Maxter's picture

Is it possible to encrypt files in such a way that you can unlock it with 2 different keys?  One for the real files and one for a bunch of useless files?

me or you's picture

Yes you can do it.

> X file encrypted with first key then change file extension and then encrypt it again with different key...changing the file extension is optional.