Representatives question FBI and point out fallacies during default encryption hearing

The U.S. Committee on Oversight & Government Reform met on Wednesday to hear arguments on default encryption and didn't let law enforcement off easy.
The U.S. Committee on Oversight & Government Reform met on Wednesday to hear arguments on default encryption and didn't let law enforcement off easy.

If FBI Executive Assistant Director Amy Hess thought she'd skirt through the Committee on Oversight & Government Reform's hearing on encryption unchallenged, she was greatly mistaken.

The hearing, “Encryption Technology and Potential U.S. Policy Responses,” gave individuals on both sides of the default encryption debate an opportunity to provide their perspectives. And Hess, who along with Suffolk County, Mass. District Attorney Daniel Conley offered up the government's argument, got grilled. Already widely known to those who follow encryption proceedings, both Hess and Conley said encryption could hamper law enforcement's work. In this specific hearing, Conley spoke about encryption hindering investigations on criminals, terrorists and those who might take part in “upskirting,” or photos taken under a woman's skirt.

Meanwhile, on the other side, Kevin Bankston, policy director, America's Open Technology Institute; Jon Potter, president, Application Developers Alliance; and Matthew Blaze, associate professor, computer and information science, School of Engineering and Applied Science at the University of Pennsylvania, said backdoors being built into devices not only has grave implications for individuals' privacy, but could affect U.S. companies' economic interests around the world.

Both sides' perspectives have been well communicated for months, but this hearing allowed representatives to question these views. Ultimately, the representatives reamed the National Security Agency (NSA) and pushed Hess and Conley on their suggested solutions.

Conley, for instance, said technologists saying they cannot build a backdoor that would only allow well-meaning individuals in and malicious ones out could have implications on par with what could have happened if Former President John F. Kennedy said sending a man to the moon was impossible.

“There are a lot of great minds in the United States,” he said. “I'm trying to figure out a way to balance the interests here; it's not an either or situation.”

A tangible solution never came up in the conversation, but Hess suggested that solutions put on the frontend design would be more secure than something tacked onto the backend.

The committee members switched off questioning, with Rep. Jason Chaffetz at one point pushing Hess on whether encryption could, in fact, prevent crime and how the agency's dual perspectives don't entirely line up.

“I think the distinction comes from the idea that we are not supportive or in favor of encryption and that's not true; that's not accurate,” she said. “We actually want encryption it secures our networks; it obviously assists us in providing security and blocking the cyber threats.”

She said that in this situation, she wants a key, or multiple keys, to be provided, and that “nothing is secure” either physically or digitally in this society with or without a backdoor being built into a device.

Things eventually diverged into jabs at the FBI and NSA's past work. Chaffetz questioned Hess on the agency's use of geolocation data, for example, and Rep. Ted Lieu firmly defended Americans' privacy concerns, primarily toward Conley.

“To me, it's very simple to draw out the privacy balance when it comes to law enforcement and privacy: just follow the damn Constitution,” he said. “If you want to get this fixed, I suggest you write to the NSA, and the FBI should tell the NSA, stop violating our rights, and then maybe you'd have the public much more on the side of supporting some of what law enforcement is asking for.”

Perhaps most telling that no feasible solution was in sight was when Rep. Blake Farenthold asked the panel to raise their hands if they believed a technically secure backdoor could be built. No one raised a hand, not even Hess or Conley.

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