By Mike Sacks, From The National Law Journal

“We’re not seeking a front door, back door or any other kind of door,” Deputy Attorney General Sally Yates told the Senate Judiciary Committee.

Federal law enforcement officials want help from Silicon Valley to assist in the pursuit of criminals who use encrypted online communications, top U.S. Department of Justice officials told the Senate Judiciary Committee at a hearing Wednesday.

Deputy Attorney General Sally Yates and FBI Director James Comey came with the same message: the Obama administration has no immediate interest in any legal mandate requiring companies to turn over encryption keys to federal agents. But, they said, companies should not make products “warrant-free zones” that, by design, thwart law enforcement’s court-ordered access to criminal evidence.

“We’re not seeking a front door, back door or any other kind of door. We’re not seeking for the government to have direct access to any of these communications. But we are seeking to work with the industry such that they will be able to respond to these valid orders” pursuant to the Fourth Amendment, Yates told the committee at the hearing “Going Dark: Encryption, Technology, and the Balance Between Public Safety and Privacy.” (Yates’ testimony is posted here.)

Apple Inc. and Google Inc. last year introduced heightened privacy protections on their devices and software in response to consumer demand and civil libertarian advocacy triggered by Edward Snowden’s revelations of the National Security Agency’s access to Americans’ electronic communications.

“There has been an evolution where, yes, some companies do not retain access either to data in motion or data at rest. What that means is, for example, if we were to get some cellphones, it is essentially a brick to us. We can’t access any of the information on that phone,” Yates said.

Last fall, Comey said Apple and Google’s enhanced encryption are “marketing something expressly to allow people to hold themselves beyond the law.” On Wednesday, he focused on the Islamic State’s use of mobile apps that allow the ability to “go dark” with thousands of English-language Twitter followers.

Those followers’ cellphones become “almost a devil on their shoulder, all day long, saying kill, kill, kill, kill,” Comey said. When the Islamic State, also known as ISIS, finds receptive Americans, “we will see them give them directions to a mobile messaging app that is end-to-end encrypted, and tell them contact me here, and they disappear.”

Responses from the Senate committee members resisted partisan alignment. Sens. Al Franken, D-Minnesota, and Mike Lee, R-Utah, expressed concern about the privacy implications of the witnesses’ suggestions. Sen. Orrin Hatch, R-Utah, feared any law enforcement access, by law, to secure communication, could encourage repressive regimes to follow the U.S. lead.

Meanwhile, Sens. Dianne Feinstein, D-California, and Sheldon Whitehouse, D-Rhode Island, along with Sens. Chuck Grassley, R-Iowa, and John Cornyn, R-Texas, decried the negative affect strong encryption could have on crime victims, their families and national security.

Cornyn, in his questioning on Wednesday, set his sights on Snowden, who remains a fugitive in Russia more than a year after his NSA leaks started a national debate over surveillance and privacy.

Responding to a recent report that Obama administration officials have floated the option of a plea bargain with Snowden for a prison sentence of three to five years, Cornyn said, “Mr. Snowden should not face any less than 12 to 20 years for his acts of illegally disclosing national defense information.” The much shorter term suggested in the article, Cornyn said, “strikes me as insulting and inappropriate.”

IMAGE: Sally Yates at her confirmation hearing in March. Photo: Diego M. Radzinschi/NLJ

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