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Executive Editor

Proposed encryption legislation: What you need to know

News Analysis
Apr 14, 20163 mins

Questions and answers about first draft of how to deal with law enforcement’s need to access encrypted information

The first draft of long awaited federal encryption legislation that would govern to what lengths vendors and service providers have to go in order to comply with court decryption orders has finally been released.

It takes a stab at defining how to give law enforcement the authority to access encrypted information and under what circumstances that is OK. It also tells vendors and service providers to what lengths they would have to go to help out.

The proposal has not been filed formally as a bill in Congress, but its release will generate discussion.

In order to help clarify the major provisions, here are some questions and answers about the proposal:

Is this a law?

No. It’s a draft of legislation meant to generate discussion of the major issues. But it is significant because it is the first written proposal to come forward. Hearings, rewriting, approval by the House and Senate and signing by the president are all needed before it would become a law.

Who is responsible for this draft?

Sen. Richard Burr of North Carolina and Sen. Dianne Feinstein of California.

Does it allow unbreakable encryption?

No. It doesn’t come out and forbid unbreakable encryption in so many words, but what it does require precludes unbreakable encryption. It says the government can’t “require or prohibit any specific design or operating system.”

Who would have to comply with the law?

Device manufacturers, software manufacturers, electronic communication services, remote computing services, wire or electronic communications service providers, and anyone who provides a product or a method to facilitate communication or the processing or storage of data.

What would they be required to do?

If ordered, they would have to provide the requested data or communication in an intelligible format. Barring that, they would have to provide technical assistance that enables converting the data in intelligible form.

How far would vendors have to go to provide technical assistance?

There are no definitions in the draft other than as much as is necessary to deliver the data in an intelligible format.

Do they have to do it for free?

No. They would be paid for reasonably necessary costs directly incurred in their efforts to comply.

What if a service provider is just transmitting data or communications encrypted by somebody else?

In that case they would not be responsible for decrypting it. They’re only responsible if they encrypted it or provided the means to encrypt it.

What if vendors and service providers refuse to cooperate?

The draft doesn’t mention anything about penalties.

What about encryption products and services from outside the U.S.?

The proposal doesn’t address that directly, but they would be outside U.S. jurisdiction.

What if someone or some business in the U.S. used unbreakable encryption from another country?

The draft doesn’t say.

What about privacy?

The preamble to the law calls for protecting privacy but not at the expense of being able to comply with court orders calling for decrypted data and communications. It says, “all providers of communications services and products (including software) should protect the privacy of United States persons through implementation of appropriate data security and still respect the rule of law and comply with all legal requirements and court orders.”