US Senate panel says no to criminal charges for encryption-related court orders: Report

Senate Intelligence Committee Chairman Richard Burr has reportedly decided to not criminalise companies that do not comply with court orders.
Written by Aimee Chanthadavong, Contributor

Senate Intelligence Committee Chairman Richard Burr has reportedly ruled against a proposal to introduce criminal penalties for companies that do not comply with encryption-related court orders.

The Wall Street Journal reported that a spokesperson on Thursday confirmed that while Burr was looking to introduce criminal provisions, including tightening the rules around encryption, it would not include criminal penalties.

"Chairman Burr is not considering criminal penalties in his draft encryption proposals," the spokesperson said.

The announcement comes after tech giant Apple was ordered by a US Federal Court to help the FBI access data on an iPhone used by one of the San Bernardio shooters.

However, Apple CEO Tim Cook stated in an open letter the company would not comply with the FBI's demand or the court order.

"The United States government has demanded that Apple take an unprecedented step which threatens the security of our customers. We oppose this order, which has implications far beyond the legal case at hand," he wrote.

In an op-ed published on USA Today, Burr admitted that while Apple's compliance could have "national security implications", the information on the iPhone could have a "drastic effect on criminal cases across the country".

Burr went on to question Apple's decision to oppose the order, pointing out the company has complied with others previously.

"Apple exists as a corporate entity with the protections provided by U.S. laws, but it cannot be allowed to pick and choose when to abide by those laws as it sees fit. We are a country of laws, and this charade has gone on long enough. Apple needs to comply with the court's order," Burr wrote.

Similarly, in an interview with PBS NewsHour, Senator Dianne Feinstein, Vice Chair of the Senate Select Committee on Intelligence, urged Apple to comply, saying the work her and Burr are currently undertaking to introduce a Bill should "not be necessary".

"I hope Apple would understand the seriousness and no doubt to deny the request would likely bring on law to change law so that this can be done," she said.

Meanwhile, Senator Ron Wyden of Oregon has told The Guardianthat if Apple did comply with the court order, it would put "at risk the foundations of strong security for our people and privacy in the digital age", and "force technology companies to actually build hacking tools for government against their will, while weakening cybersecurity for millions of Americans in the process".

He added that if Apple did give the FBI access, it would only set precedent for the rest of the world.

"This move by the FBI could snowball around the world. Why in the world would our government want to give repressive regimes in Russia and China a blueprint for forcing American companies to create a backdoor?" Wyden told The Guardian.

"Companies should comply with warrants to the extent they are able to do so, but no company should be forced to deliberately weaken its products. In the long run, the real losers will be Americans' online safety and security."

Twitter CEO and co-founder Jack Dorsey said on Twitter on Friday that he supported Cook's decision, tweeting: "We stand with @tim_cook and Apple (and thank him for his leadership)!"

Similarly, Mozilla said in a separate tweet: "We stand with @Apple on strong #encryption. We should not set a dangerous precedent."

In an interview with ZDNet on Thursday, Australian Children's eSafety Commissioner Alastair MacGibbon said the court request was reasonable.

"What we are talking about here is a criminal court in the United States making a judgment to compel Apple to do certain things," he said. "The thing that irks me is the use of the word 'backdoor' -- because it implies things that this court order does not.

"It is not compelling Apple to hand over its cryptokeys, and it is definitely not compelling Apple to build a structural fault in every single device ... this is a court order compelling the company to assist the FBI in a single serious criminal investigation.

"This is not the backdoor that people are talking about ... they are not going to be building a flaw into the products that we know and love."

According to Bloomberg, Apple has now been given until February 26 to respond to the court order instead of February 23, which will give the company a little more time to put together its reply.

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