Senate proposal on encryption gives judges broad powers

A bipartisan group of Senators has begun circulating long-awaited draft legislation that would give federal judges clear authority to order technology companies like Apple to help law enforcement officials access encrypted data, apparently. The proposal from Senate Intelligence Committee Chairman Richard Burr (R-NC) and Vice Chairman Dianne Feinstein (D-CA) does not spell out how companies must provide access or the circumstances under which they could be ordered to help. It also does not create specific penalties for noncompliance, leaving that determination to judges, apparently.

Previous legislative efforts have focused on requiring technology products to have a built-in "back door" for law enforcement. The latest approach would not mandate any specific technology, but rather would require companies to figure out how to access the data. Congress has tried and failed for years to pass legislation that could prevent criminals and spies from "going dark," or hiding from law enforcement by using encrypted computer and communications services. The latest effort died when the Obama Administration signaled last fall that it would not support it. But Apple's high-profile showdown with the government over a federal magistrate judge's order that it unlock an iPhone connected to the mass shooting in San Bernardino (CA) has reopened the debate.