Even as the
Department of Justice battles Apple in court over access to encrypted data, the
Obama administration remains split over backing requirements that tech
manufacturers provide law enforcement with a "back door" into their
products, according to a dozen people familiar with the internal debate.
FBI
Director James Comey and the DOJ - who are fighting to access an iPhone tied to
the San Bernardino attacks – have long tried and failed to convince other
departments to join the broader battle against unbreakable encryption, the current
and former government officials said.
Federal
justice officials argue that strong encryption makes it harder to track
criminals, a central contention in the iPhone case. But officials in other
departments - including Commerce, State and the White House Office of Science
and Technology Policy - counter that encryption is integral to protecting U.S.
secrets and the technology industry. The issue has been discussed in meetings
of the interagency National Security Council and elsewhere.
Some
government officials also worry that confronting the tech sector on the issue
could heighten distrust of American products overseas and drive terrorists and
top criminals to seek foreign-made encryption.
Several key
officials in the National Security Agency and the Department of Homeland
Security opposed the fight with Apple based on those concerns, the sources
said.
Luke Dembosky
- until recently the deputy assistant attorney general for national security
and the senior cybersecurity prosecutor on some of the biggest hacking cases in
recent years - cast the broader disagreements over encryption as "very
healthy."
"It's a
very big government, and everyone is trying to do the right thing," said
Dembosky, who last week joined the law firm Debevoise & Plimpton LLP.
"There are countries where they don't have these debates."
NSA Director
Michael Rogers has taken a middle ground, saying that strong encryption is
important but compromise is desirable.
Years of
interagency debates over encryption have left the Obama administration lacking
a cohesive policy stance on the issue, many tech industry leaders have said.
The Justice
Department last month persuaded a federal judge to order Apple Inc to write
software to help unlock an iPhone used by shooter Rizwan Farook in the December
attack in San Bernardino. Apple is fighting the order, calling the case an
overreach by prosecutors that threatens the security of all iPhones. A hearing
on the matter is scheduled for later this month.
NO GOVERNMENT CONSENSUS
As is customary in such cases, the
decision to take action against Apple was made without consulting the White
House, said two sources familiar with the matter.
"The DOJ and FBI pursue all such
matters independent of the White House," a senior administration official
said.
The official added that the White House
does not intend to seek legislation mandating back doors.
In an interview, John Carlin, assistant
attorney general for national security, dismissed suggestions that some
administration officials did not support the Justice Department's action in the
Apple case. The effort was never intended to settle the encryption debate, he
said, but rather to assist San Bernardino County, which asked for help in
unlocking Farook's county-owned iPhone 5c.
The tech industry has united behind Apple,
with more than 40 companies this week submitting legal briefs arguing that
compliance with the judge's order would undermine encryption and public trust
in Internet security.
By contrast, the division among government
agencies has left some administration officials in an awkward position of
publicly supporting the Justice Department's case against Apple while also
acknowledging the need for strong encryption. They have been more vocal about
their concerns behind closed doors, according to four people who have spoken
with them or their subordinates.
"Just to cut to the chase, I'm not a
believer in back doors or a single technical approach," Defense Secretary
Ash Carter told a largely pro-Apple crowd at the RSA security conference
on Wednesday. "I don't think we ought to let one case drive a single
solution."
Congress is also divided on the issue, with
liberal Democrats joining libertarian Republicans in opposing government back
doors.
ELUSIVE
COMPROMISE
The lack of consensus prompted the White
House last year to abandon a push for legislation that would require U.S.
technology firms to provide law enforcement a way around encryption.
Privately, however, President Obama sought
a compromise, asking large telecommunications and technology firms, including
Apple and Microsoft, to work toward an "exceptional access" agreement
that would provide investigators access to content that is typically encrypted,
said two sources with knowledge of the discussion.
An Apple spokesman said that the company
never seriously considered installing a back door and tried to shift the
discussion to a broader conversation about law enforcement cooperation.
Either way, Apple CEO Tim Cook lambasted
the White House for not publicly affirming support for strong encryption at a
January summit in San Jose, Calif. between technology executives and senior
national security officials convened largely to discuss online extremism,
sources familiar with the meeting said.
Cook's comments aggravated White House
Chief of Staff Denis McDonough, who thought the iPhone maker was backtracking
on its earlier commitment to work collaboratively on resolving law
enforcement's encryption concerns, according to one person with knowledge of
the situation.
That confrontation helps explain why,
after months of apparent respectful disagreement in public and private pursuit
of compromise, both sides suddenly came to battle heavily armed.
Amid the hostilities between Apple and the
FBI, some have called for President Obama to weigh in to help resolve the
standoff.
"I'm waiting to hear what the
president has to say about it," Democratic Senator Ron Wyden, who supports
Apple, said in an interview. "I know [White House Press Secretary] Josh
Earnest has said he is for the Justice Department, [but] I want to hear from
the president."
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