The battle between Apple and the FBI has shifted to the halls of Congress, where the House and Senate are taking dramatically divergent approaches as they weigh Americans’ privacy rights against what the government says is a pressing need to get a peek at its citizens’ secrets.
House lawmakers, moving with stunning bipartisanship, pushed ahead Wednesday with legislation establishing a national requirement that any law enforcement agent must get a court order before attempting to pry through someone’s private electronic data, including emails held by their phone or Internet providers.
And once companies are served with a warrant, they can then tell their customers, unless a court has specifically issued a gag order.
“The Fourth Amendment’s papers and effects are today’s emails, tweets and posts,” said Rep. Tom Marino, Pennsylvania Republican, just before the House Judiciary Committee approved the Email Privacy Act on a 28-0 vote.
Lawmakers said the bill would correct an odd loophole in current law that requires a warrant when authorities want to see a recent email, but only requires a subpoena if the message is more than 180 days old.
Across the Capitol, however, two key senators were headed the other direction, announcing a draft bill that would insist companies help — including breaking their own encryption — when authorities do obtain a court order demanding data.
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“No entity or individual is above the law,” said Sen. Dianne Feinstein, California Democrat and vice chairman of the Senate Intelligence Committee. “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.”
She wrote the draft, titled the Compliance with Court Orders Act of 2016, with committee Chairman Richard Burr, North Carolina Republican.
They were reacting to the fight earlier this year when FBI agents went to court to demand tech giant Apple help crack the iPhone that belonged to one of the suspects in December’s California terrorist attack.
Apple balked and the issue was being fought in court until the FBI said it found another way to crack the phone, and withdrew its request.
But other similar cases are still pending, and Mr. Burr said he hoped his draft bill would spark a conversation on where to strike the right balance between the two sides.
“Based on initial feedback, I am confident that the discussion as begun,” he said Wednesday.
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Advocates for Internet freedom have blasted their proposal as a step backward, saying that it would pressure tech companies to use lower security standards that could be broken not only by police, but also by hackers intent on stealing information or doing harm.
In a summary of their bill, Mr. Burr and Mrs. Feinstein said their intent is to make sure companies cooperate rather than conflict with police: “The bill does not create any new collection authorities for the government to obtain communications. The bill simply requires covered entities to ensure that the government’s lawfully-obtained evidence is readable — so that law enforcement can solve crimes and protect our communities from criminal and terrorist activities.”
The split between the House and Senate is not new.
As Congress grappled with the fallout from former government contractor Edward Snowden’s revelation that the National Security Agency was storing records of Americans’ phone calls, the House pushed for an end to the program, saying it trampled on Americans’ rights. But Senate Republican leaders, joined by a handful of Democrats, wanted to err on the side of security, saying the phone records might help unravel a future terrorist plot.
The bipartisan coalition in the House prevailed, thanks in part to a looming deadline that threatened to end an entire section of Patriot Act snooping powers.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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