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Why tech companies may be winning the encryption argument

Ever since Edward Snowden released information about the extent of secret U.S. surveillance, a battle has been growing between tech companies and the government over access to data. New reports suggest the Obama administration may be backing down on its demands over encryption. William Brangham speaks to David Sanger of The New York Times.

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    Ever since Edward Snowden released a mountain of information about the extent of U.S. government secret surveillance, the battle has been growing between tech companies and the government over access to data.

    One of the major fronts in that battle has been the decision by Apple, Google, Microsoft and others to lock down, or encrypt, data on smartphones and digital devices.

    But new reports say the Obama administration may be backing down from its demands.

    William Brangham has the story.


    For months now, the Obama administration has said it's essential to be able to occasionally access messages, texts and photos that are sent on today's smartphones. But many of the latest devices give individual users the power to control their data and block others from seeing it.

    Until recently, law enforcement has argued that this encryption is making it increasingly hard to track terrorists or criminals who are using these devices to communicate with each other.

    For example, this is what Deputy Attorney General Sally Yates told a Senate hearing this summer:

  • SALLY YATES, Deputy Attorney General:

    ISIL currently communicates on Twitter, sending communications to thousands of would-be followers right here in our country. When someone responds and the conversations begin, they are then directed to encrypted platforms for further communication.

    And even with a court order, we can't see those communications. This is a serious threat, and our inability to access these communications with valid court orders is a real national security problem.


    This past week the Obama administration has apparently backed off on some of its demands to gaining access to our digital devices.

    David Sanger has been reporting on this for The New York Times. And he joins me now.

    David Sanger, welcome.

  • DAVID SANGER, The New York Times:

    Thanks. Good to be with you, William.


    The term of art here is encryption. And for those who haven't been following this debate very closely, could you just give us a quick primer? What is encryption?


    Well, encryption is a sophisticated version of what you did when you made codes when you were a kid.

    It is taking the data that's in your phone and wrapping it in a code so that if somebody got ahold of that phone, if they didn't know the key, they couldn't de-encrypt it. And sometimes conversations are encrypted or data is encrypted when it's moving across a telephone wire as well.


    So, the Obama administration, as you reported, has recently changed its position on this. Can you tell me, what was it that they were originally wanting, and why have they changed course?


    Well, for years now, the FBI has worried about what they call the going dark problem. And that is that, as more and more information is encrypted, they feared that if a kidnapper had photographs of, say, a victim, if they were going after a terrorist suspect, if the special forces landed someplace, grabbed some iPhones from a group of al-Qaida, for example, that they wouldn't be able to know what was in those phones.

    And so the director of the FBI made a very passionate case last year for forcing Apple, Google, Microsoft, others to build a back door, a way with a court order that somebody could get into these phones. And Apple objected to this, along with Google and others, saying, if we build that back door, someone else is going to pry it open, and it's probably going to be the Chinese or the Russians.

    And so that was one of many reasons that they opposed this, and in the end it looks like they're winning the argument.


    But if law enforcement doesn't have that back door, then, as you mentioned, it seems to make it more difficult for them to do their job.


    It does.

    And that's why, to borrow your iPhone here, this is a national security problem in your pocket, and in everybody's pocket. So, for 99.9 percent of communications, the government wants you to encrypt more, because they don't want criminals to be able to get into your bank account. Your whole life is on this phone, right?




    Everything, medical data, financial data, conversations back and forth with family members.

    And they're protected by that four-digit code you type in, which in turn creates a much longer encryption key. So, the question is, who gets to hold on to that key? And Apple said, we don't want it. We want you to have your own key. Well, the problem…


    We being the individual user.


    The individual.

    So, if the FBI wanted your data, or the NSA wanted to go in and get it because they thought you were communicating with a terrorist, what Apple is saying, don't bring that warrant to us. Go give it to William, and have him give you the key. Well, of course, the FBI's view is, drug dealers, terrorists, they're not likely to turn over a key.


    In your reporting, you also mentioned that the — that Apple CEO Tim Cook said to President Obama that, if you make me build a back door for the U.S. government to get into, then it's very likely that the Chinese are going to ask the same.

    I mean, is that really a concern these companies have, that other companies are going to say, look, if you did it for the Americans, you're going to do it for us?


    Oh, it's a very real concern. And it may happen even without the Obama administration doing this.

    Look, what Mr. Cook, what Microsoft, what Google wanted was an affirmative statement from the U.S. government, which they have not gotten yet, which said, we're not going to force these companies to build back doors, and therefore you shouldn't either.

    Now, the back door in the United States is based on the fact that we have a court system that you fundamentally trust. If the Chinese force a back door, then almost any user, including an American user who goes over and is visiting in China, might have their data taken right out on the basis of a court order in China, and the impartiality of that court, you don't quite trust.


    Obviously, this is all on the ongoing fallout from the Snowden revelations and the tension that we have between our needs for privacy and the government's need for — to be able to be good law enforcers and to track criminals and terrorists.

    Apart from this particular issue, how do you see this fight going forward from this point on?


    Well, there is an old saying in Washington that nothing's ever over, right?

    So, right now, all you have is a set of decisions that the Obama administration has made, not to press this issue, not to go for legislation. We have a presidential election coming up. Who knows if the next president will see it the same way, which is why privacy advocates wants there to be a law in Congress that says the government shall not get a back door, and why law enforcement wants to go fight that.

    I think what you have seen happen here is a truce for the next 15 or 16 months until a new president comes in. But this issue is going to come back, because that tension that you describe between privacy and security is one where it's always a pendulum back and forth. And after a new terror attack, some large incident where somebody couldn't get the data, you could imagine the FBI, the NSA, others coming back and saying, see, we really do need this data.


    David Sanger of The New York Times, thank you so much.


    Thank you.

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