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Congress to Comey: Leave Encryption Alone

Congress appears to have abandoned FBI Director James Comey's bungled attacks on consumer adoption of encryption. Its a rare glimmer of sanity from Capitol Hill; press reports quoting congressional officials using language not ripped from the pages of an Orwell novel.

Readers may remember that in a recent post we mentioned some danger signs indicating that the executive wanted to take some more aggressive action to ensure that the commoners and foreign-folk don't have access to encryption tools that would help keep their data free from snooping. Top brass from the FBI and the Attorney Generals Office were telling anyone who would listen that unless tech companies stopped trying to protect their customer's data, law enforcement would be powerless in the face of modern "cyber" criminals.

Congress has refused to jump on this alarmist bandwagon. Darrell Issa, a member of that rarest of species - California Republicans - had this to say about federal law enforcement's bungled power play:

Darrell Issa on federal law enforcement attacks on encryption
A surprising voice of reason

There are a few things I disagree with Issa about, but this is one topic we both appear to be on the same page about. Its not just Silicon Valley Republicans that are displeased about the grumbling from federal cops, either. West Coast GOP representatives have a long history of fighting on behalf of the large tech companies that keep them in the style to which they are accustomed. But even previously pro-spying Republicans don't want to be a part of the effort to once again criminalize what are now industry-standard encryption practices. Consider, for example, Patriot Act author James Sensenbrenner, better known as "The Schmuck From Wisconsin" among MoveOn liberal types. In an interview with The Hill last week, Sensenbrenner simultaneously sought to distance himself from Comey while tepidly supporting the idea of "privacy" reforms that sound like anything but:

“While Director Comey says the pendulum has swung too far toward privacy and away from law enforcement, he fails to acknowledge that Congress has yet to pass any significant privacy reforms [...] Because of this failure, businesses have taken matters into their own hands to protect their consumers and their bottom lines. [...] If this becomes the norm, I suggest to you that homicide cases could be stalled, suspects walked free, child exploitation not discovered and prosecuted.”

Meanwhile in the South, the Republican Representative from Kentucky Thomas Massie is a clear opponent of Comey's efforts. Massie, along with California Democrat Zoe Lofgren, authored an addendum to the defense spending bill that bans the NSA from using back door mechanisms from being used for the purpose of domestic spying. Lofgren has made her intentions clear on efforts to distort CALEA regulation into a modern Clipper Chip:

“I think the public would not support it, certainly industry would not support it, civil liberties groups would not support it [...] there’s just no way this is going to happen."

Will congress maintain this ethical stance after the mid term elections, or is this a fast one to get a few quick dollars out of tech companies and some much-needed votes from those who want big brother out of their iPad? Regardless of the answer to that question, the abandonment of law and order chest thumping for privacy advocacy during a critical election period represents a sea change in Congressional politics; a change that privacy advocates should view as a good sign.