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The 'Compliance with Court Orders Act of 2016,' or Anti-Encryption Bill, was Officially Circulated Today

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Last Friday we posted a report titled "The First Draft of the New Feinstein-Burr 'Compliance with Court Orders Act of 2016' Leaked." Our report presented the first draft in full. This very same draft, according to a new report posted by the Wall Street Journal, was being circulated today by the Senate Intelligence Committee Chairman Richard Burr and the panel's vice chairman Senator Dianne Feinstein noted in our cover graphic. The committee is seeking input on proposed legislation that attempts to address one of the thorniest security issues vexing policy makers—how to deal with the use of technology that cannot be read for law enforcement or national security purposes. The new bill is designed to limit the use of encryption in consumer technology so that when a court order is issued to a technology company, they would have to provide assistance in providing data being sought in a decrypted form. CNN's report phrased it this way: "It's an order to decrypt on demand."


As noted last week, the 10-page 'discussion draft' would require firms, when served with a court order, to provide "such information or data" or "provide technical assistance as is necessary to obtain such information or data" when the government is seeking to obtain encrypted material.


A company would be required to assist the government if the data "has been made unintelligible by a feature, product, or service owned, controlled, created, or provided by the covered entity or by a third party on behalf of the covered entity." We noted in our report last Friday that "The 'covered entity' term appears by definition in the document, to be the entity receiving the court order."


Senator Burr is on record today stating that "I have long believed that data is too insecure and feel strongly that consumers have a right to seek solutions that protect their information—which involves strong encryption. I do not believe, however, that those solutions should be above the law."


CNN's report added Senator Feinstein's prepared statement that read in-part as follows: "Today, terrorists and criminals are increasingly using encryption to foil law enforcement efforts, even in the face of a court order. We need strong encryption to protect personal data, but we also need to know when terrorists are plotting to kill Americans."


The draft has a long way to go before becoming law, and its chances for adoption in the short term are slim. Many technology companies, including Apple, have opposed any requirement that firms help circumvent encryption, which is now commonplace in smartphones and other devices.


Earlier today the Sacramento Bee reported that a California phone decryption bill was defeated. The bill reportedly didn't receive a single vote in favor, with members of the Assembly Committee on Privacy and Consumer Protection worrying the measure would undermine data security and impose a logistically untenable requirement on California companies.


Assemblyman Jim Cooper, D-Elk Grove, a former sheriff's deputy who led an Internet crimes task force, called it "mind-boggling" that search warrants allow access to peoples' houses but not necessarily to their phones.


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