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ENCRYPTION TECHNOLOGY AND POTENTIAL U.S. 

POLICY RESPONSES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

INFORMATION TECHNOLOGY 

OF THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

APRIL 29, 2015 

Serial No. 114–143 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 


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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

JASON CHAFFETZ, Utah, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

JIM JORDAN, Ohio 

TIM WALBERG, Michigan 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

CYNTHIA M. LUMMIS, Wyoming 

THOMAS MASSIE, Kentucky 

MARK MEADOWS, North Carolina 

RON DESANTIS, Florida 

MICK, MULVANEY, South Carolina 

KEN BUCK, Colorado 

MARK WALKER, North Carolina 

ROD BLUM, Iowa 

JODY B. HICE, Georgia 

STEVE RUSSELL, Oklahoma 

EARL L. ‘‘BUDDY’’ CARTER, Georgia 

GLENN GROTHMAN, Wisconsin 

WILL HURD, Texas 

GARY J. PALMER, Alabama 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

MATT CARTWRIGHT, Pennsylvania 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

BRENDA L. LAWRENCE, Michigan 

TED LIEU, California 

BONNIE WATSON COLEMAN, New Jersey 

STACEY E. PLASKETT, Virgin Islands 

MARK DESAULNIER, California 

BRENDAN F. BOYLE, Pennsylvania 

PETER WELCH, Vermont 

MICHELLE LUJAN GRISHAM, New Mexico 

SEAN MCLAUGHLIN, Chief of Staff 

DAVID RAPALLO, Minority Chief of Staff 

TROY STOCK, Staff Director, Subcommittee on Information Technology 

SARAH VANCE, Staff Assistant 

SUBCOMMITTEE ON INFORMATION TECHNOLOGY

WILL HURD, Texas, Chairman 

BLAKE FARENTHOLD, Texas, Vice Chair 

MARK WALKER, North Carolina 

ROD BLUM, Iowa 

PAUL A. GOSAR, Arizona 

ROBIN L. KELLY, Illinois, Ranking Member 

GERALD E. CONNOLLY, Virginia 

TAMMY DUCKWORTH, Illinois 

TED LIEU, California 


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C O N T E N T S 

Page 

Hearing held on April 29, 2015 .............................................................................. 1 

WITNESSES 

Ms. Amy Hess, Executive Assistant Director, Federal Bureau of Investigation 

Oral Statement ................................................................................................. 4 

Written Statement ............................................................................................ 7 

Mr. Daniel F. Conley, Suffolk County District Attorney, Massachusetts 

Oral Statement ................................................................................................. 16 

Written Statement ............................................................................................ 18 

Mr. Kevin S. Bankston, Policy Director, New America’s Open Technology 

Institute 

Oral Statement ................................................................................................. 25 

Written Statement ............................................................................................ 27 

Mr. Jon Potter, President, Application Developers Alliance 

Oral Statement ................................................................................................. 43 

Written Statement ............................................................................................ 45 

Dr. Matt Blaze, Associate Professor, Computer and Information Science, 

School of Engineering and Applied Science, University of Pennsylvania 53 


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ENCRYPTION TECHNOLOGY AND POTENTIAL 

U.S. POLICY RESPONSES 

Wednesday, April 29, 2015 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON INFORMATION TECHNOLOGY

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, D.C. 

The subcommittee met, pursuant to call, at 2:32 p.m., in Room 

2154, Rayburn House Office Building, Hon. Blake Farenthold 

[chairman of the subcommittee] presiding. 

Present: Representatives Hurd, Farenthold, Walker, Blum, 

Chaffetz, Kelly, Connolly, and Lieu. 

Mr. HURD. The Subcommittee on Information Technology will 

come to order. Without objection, the chair is authorized to declare 

a recess at any time. 

Good afternoon, everyone. And thanks for attending today’s hearing. And I appreciate your flexibility with time. Votes always come 

at the inopportune moment. 

In September of last year, Apple and Google, the largest mobile 

device manufacturers in the United States, announced that they 

would implement increased security measures on their products in 

an attempt to strengthen privacy and data security. 

These developments were met with concern from some law enforcement entities, such as the FBI, who were worried that this increased level of encryption would lead to an inability to access data 

on specific devices and that, despite obtaining a warrant, investigatory efforts could be hindered by this. 

As a former CIA officer, I understand and appreciate the need 

and desire for law enforcement to access digital information in a 

timely manner. However, I also understand the protections afforded to Americans provided by the Constitution, and I have taken 

an oath two times to protect and defend these rights. 

I firmly believe that law enforcement officials must gain the 

trust of the very people they are trying to protect in order to be 

successful, and I remain concerned that a government-mandated 

back or front door on U.S.-based mobile device manufacturers 

might undermine that trust. 

Today’s hearing will involve testimony from a variety of experts 

and stakeholders and representatives on ways to balance law enforcement needs with privacy and security concerns. The hearing 

will also explore the impact of this debate on domestic privacy, 

American consumers, and U.S. technology manufacturers. 

As technology continues to evolve and encryption capabilities become a part of everyday life for all Americans, this debate will only 


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grow larger. I believe we can find a way to protect the privacy of 

law-abiding citizens and ensure that law enforcement have the 

tools they need to catch the bad guys. 

I welcome the witnesses and look forward to today’s discussion. 

Mr. HURD. I would like to now recognize my friend and the ranking member of the subcommittee, Ms. Kelly of Illinois, for 5 minutes for an opening statement. 

Ms. KELLY. Thank you, Mr. Chairman. 

And thank you to our witnesses for appearing on today’s panel. 

Recently companies like Apple and Google have announced plans 

to incorporate automatic encryption for their mobile devices. 

Encryption will become the default privacy feature on their mobile 

devices, making their content unreadable and inaccessible without 

the user’s selected pass code. 

As a society, we rely on mobile devices to manage and protect 

many aspects of our lives, personal, professional, and financial. Privacy on our smartphones is critically important. Hackers are concerned, as is unrestricted government surveillance. 

According to a May 2014 study on trends in U.S. smartphone industry, Android and Apple control 52.1 and 41.9 percent share of 

the market. Their move towards automatic encryption will have a 

significant effect on the industry standard for privacy protections. 

The move towards automatic encryption has been criticized as seriously hindering law enforcement operations. Criminals, like noncriminals, use mobile devices to manage the many aspects of their 

lives, some of which can provide evidence of a crime. 

Today many criminal cases have a digital component and law enforcement entities increasingly rely on the content of mobile devices 

to further an investigation or prosecution of serious crimes of national security threats. The FBI, local law enforcement departments, and prosecutors have all expressed concern with automatic 

encryption. 

They envision a number of scenarios in which the inability to assess data kept on mobile devices will seriously hinder a criminal 

investigation. They do not want to be in a position to tell a victim 

of a crime or the family of a victim that they cannot save someone 

or prosecute someone because they cannot access the content of a 

mobile device. There is a balance to be struck here. 

It is important that the Government’s policies approach ensures 

privacy protections and it is important that law enforcement, under 

tightly controlled circumstances, have the ability to investigate and 

prosecute crimes. I look forward to today’s hearing and your testimony. 

Thank you, Mr. Chairman. I look forward to continue working 

with you to examine policy issues related to advancement and information technology. 

I yield back. 

Mr. HURD. Thank you. 

I am now pleased to recognize Mr. Chaffetz of Utah, the chairman of the full committee, for an opening statement. 

Mr. CHAFFETZ. I thank the chairman. 

And I appreciate your passion on this topic. It affects literally 

every American. It affects people all across the world. 


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I think one of the great questions that needs to be posed to our 

society and certainly our country as a whole is how to find the 

right balance between personal privacy and national security. And 

I, for one, am not willing to give up every bit of privacy in the 

name of security. So how do we find that right balance? It is not 

easy to find. 

In response to recent moves by Apple and Google mentioned by 

Chairman Hurd, the FBI Director Comey recommended, quote,’’a 

regulatory or legislative fix,’’ end quote, which would force companies to manufacture their mobile devices in such a way that law 

enforcement can access the data on those devices without a warrant or court order. 

I have three general concerns about Director Comey’s proposal: 

First, it is impossible to build just a back door for just the good 

guys, you know, just the good guys can get this. If somebody at the 

genius bar can figure it out, so can the nefarious folks in a van 

down by the river. 

As Alex Stamos, Yahoo’s chief information security officer, recently explained, all of the best public cryptographers in the world 

would agree that you can’t really build back doors in crypto. That 

is like drilling a hole in a windshield.’’ 

The Commerce Department’s National Institute of Standards and 

Technology’s chief cybersecurity adviser agreed, saying, quote, 

‘‘There is no way to do this where you don’t have an unintentional 

vulnerability,’’ end quote. And I worry about those unintentional 

vulnerabilities. 

We have a wide variety of experts on the panel today to help us 

examine some of the potential economic, privacy, security, and geopolitical consequences of introducing a vulnerability into the system. 

Second, we already live in what some experts have referred to as 

the, quote, ‘‘golden age of surveillance,’’ end quote, for law enforcement. Federal, State, and local law enforcement never had more 

tools at their disposal to help detect, prevent, and prosecute crime. 

It seems that we hear every day there is new, often-startling stories about the United States Government’s ability to track its own 

citizens. 

I recognize technology can be a double-edged sword and many 

pose challenges for law enforcement as well, but we are certainly 

not going to go dark, and in many ways we have never been brighter. 

Third, strong encryption prevents crime and is a part of the economy. People keep their lives in their mobile phones. A typical mobile phone might hold a person’s pictures, contacts, communications, finance schedule, and much more personal information, in 

addition to my Words with Friends, which is critical to my daily 

sanity. 

If your phone is lost or stolen, you want to know your information is protected, and encryption does that. There is a reason the 

world’s largest technology companies are increasingly developing 

stronger and more frequently used encryption technology. It is not 

because they are anti-law enforcement. On the contrary. It is because sophisticated cyber hacks are nearly daily events. 


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No one is immune from digital snooping, from the White House, 

to corporate America, to private citizens. The opportunity brought 

to us by the modern technologies are near limitless, but not if the 

system is compromised. Strong encryption helps ensure data is secure and allows companies and individuals to operate with confidence and trust. 

I look forward to hearing from our witnesses today. But we have 

choices to make. Do we allow the 99 percent of Americans who are 

good, honest, decent, hard-working, patriotic people to have 

encrypted phones or do we need to leave a back door open and create vulnerability for all of them? 

Because vulnerability is—it is all or none, folks. It is not just a 

little bit, not just for the good guys. And that is why we are having 

this hearing today. I appreciate Chairman Hurd and what he is 

doing. And I appreciate and thank you all for being here as witnesses today. 

I yield back. 

Mr. HURD. Thank you. 

I am going to hold the record open for 5 legislative days for any 

members who would like to submit a written statement. 

We will now recognize our panel of witnesses. 

I am pleased to welcome Ms. Amy Hess, Executive Assistant Director of the Science and Technology Branch at the Federal Bureau 

of Investigation; Mr. Daniel Conley, District Attorney of Suffolk 

County, Massachusetts; Mr. Kevin Bankston, Policy Director at 

New America’s Open Technology Institute; Mr. John Potter, President of the Application Developers Alliance; and Dr. Matthew 

Blaze, Associate Professor of Computer and Information Science of 

the School of Engineering and Applied Science at the University of 

Pennsylvania. Welcome to all. 

Pursuant to committee rules, all witnesses will be sworn in before they testify. So please rise and raise your right hands. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

Mr. HURD. Let the record reflect that all witnesses answered in 

the affirmative. Thank you. 

In order to allow time for discussion, please limit your testimony 

to 5 minutes. Your entire written statement will be made part of 

the record. 

And, Ms. Hess, we will start with you. You are recognized for 5 

minutes. 

WITNESS STATEMENTS 

STATEMENT OF AMY S. HESS 

Ms. HESS. Thank you. Good afternoon, Chairman Chaffetz, 

Chairman Hurd, Ranking Member Kelly, and members of the subcommittee. Thank you for the opportunity to appear here today and 

for your continued support of the men and women of the FBI. 

The Bureau has undergone an unprecedented transformation in 

recent years to address and prevent threats to our national security 

and our public safety. But as those threats continue to evolve, the 

FBI must evolve as well. Today’s FBI is a threat-focused, intelVerDate Nov 24 2008 10:23 Jul 11, 2017 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 H:\25879.XXX APRIL

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ligence-driven organization, and we must continuously challenge 

ourselves to stay ahead of changing threats and changing circumstances. 

As you know, technology has forever changed the world we live 

in. Our phones and computers have become reflections of our personalities, interests, and our identities. And with that comes the 

need to protect our privacy and our data. 

But technology can be used by some very dangerous people, and 

the FBI has a sworn duty to keep every American safe from harm 

while simultaneously protecting their constitutional rights and preserving their civil liberties. 

Moreover, we recognize our national interests in promoting innovation and the competitiveness of U.S. companies in the global 

marketplace, as well as freedom of expression around the world. 

But the evolution of technology creates new challenges for law 

enforcement. It impacts our ability to access communications pursuant to court orders, which means those of us charged with protecting the American people aren’t always able to access the information we need to prosecute criminals and prevent terrorism, even 

though we have the lawful authority to do so. 

To be clear, we obtain the proper legal authority to intercept and 

access communications and information, but we increasingly lack 

the technical ability to do so. This problem, which we refer to as 

‘‘going dark,’’ is broader and more extensive than just encryption, 

but for the purposes of today’s testimony, I will focus on the challenges of the evolving use of encryption. 

We encounter encryption in two overlapping contexts. The first 

is legally authorized realtime interception of what we call data in 

motion, such as phone calls, emails, and text messages in transit. 

The second concerns legally authorized access to data stored on our 

devices or what we call data at rest. 

First let me address court-ordered interception of data in motion. 

In the past, there were a limited number of communication carriers 

conducting electronic surveillance and it was more straightforward. 

We developed probable cause to believe a suspected criminal was 

using a target phone to commit a felony. We then obtained a court 

order for a wiretap on that phone. And under the supervision of a 

judge, we collected the evidence we needed for prosecution. 

Today there are countless providers, networks, and means of 

communicating. We have laptops, smartphones, and tablets. We 

use multiple networks and any number of apps. And so do those 

conspiring to harm us. They use the same devices, the same networks, and the same apps to make plans, target victims, and concoct alibis. Thousands of companies now provide some form of communication service, but most do not have the ability to isolate and 

deliver particular information when urged to do so by a court. 

Turning to court-ordered access to data at rest, we know that 

encryption of stored data is not new, but it has become increasingly 

prevalent and sophisticated. And the challenge to law enforcement 

and national security officials has been heightened with the advent 

of default encryption settings and stronger encryption standards. 

In the past, the consumer had to decide whether to encrypt data 

stored on his or her device and take action. But with today’s new 

operating systems, a device and all of the user’s information on the 


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device can be encrypted by default. Further, companies have developed encryption technology which makes it impossible for them to 

decrypt data on devices they manufacture, even when lawfully ordered to do so. 

Although there are certainly good reasons to support these new 

uses of encryption, such decisions regarding system design have a 

tremendous impact on our ability to fight crime and bring perpetrators to justice. Like the general population, criminals are increasingly storing such information on electronic devices and, if these 

devices are encrypted, the information they contain may be 

unreadable to anyone other than the user. The process of obtaining 

a search warrant authorized by a court of law to seek evidence of 

a crime could be an exercise in futility. 

To be clear, we in the FBI support and encourage the use of secure networks and sophisticated encryption to prevent cyber 

threats. We know that adversaries will exploit any vulnerability 

they find, but we believe that security risks associated with the implementation of lawfully authorized access are better addressed by 

developing solutions during the design phase rather than resorting 

to a patchwork solution after the product or service has been deployed. 

Just as we have an obligation to address threats to national security and public safety, we likewise have an obligation to consider 

the potential impact of our investigations on civil liberties, including the right to privacy. We must always act within the confines 

of the rule of law and the safeguards guaranteed by the Constitution. 

We also believe that no one in this country should be beyond the 

law. The notion that a suspected criminal’s closet could never be 

opened or his phone could never be unlocked, even with properly 

obtained legal authority, is troubling. 

We will, of course, use every lawfully authorized technique we 

have to protect the citizens we serve, but having to rely on those 

other tools could delay criminal investigations, preclude us from 

identifying victims and coconspirators, risk prematurely alerting 

suspects to our investigative interests, and potentially put lives in 

danger. 

Thank you again for this opportunity to discuss the FBI’s priorities and the challenges of ‘‘going dark.’’ The work we do would not 

be possible without the support of Congress and the American people. I look forward to your questions. 

[Prepared statement of Ms. Hess follows:] 


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il eparimeut nf lfu\ltice 

STATEMENT OF 

AMY HESS 

EXECUTIVE ASSISTANT DIRECTOR 

FEDERAL Bl'REAU OF INVESTIGATIO;>.~ 

BEFORE THE 

SUBC0::\1MITTEE ON INI<'OR"'tA TION TECHNOLOGY 

COMMITTEE Ol'l OVERSIGHT AND GOVE~"'MENT REFORM 

U.S. HOUSE OF REPRESENTATIVES 

COl'ICERNING 

ENCRYPTION AND CYBERSECURITY FOR 

MOBILE ELECTRONIC COMMUNICA TI0:'-1 DEVICES 

PRESENTED 

APRIL 29,2015 
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Statement of 

Amy Hess 

Executive Assistant Director 

Federal Bureau of Investigation 

Before the 

Subcommittee on Information Technology 

Oversight and Government Reform 

U.S. House of Representatives 

Concerning 

Encryption and Cybersecnrity for 

Mobile Electronic Communication Devices 

Presented 

Apri129, 2015 

Good morning/afternoon, Chainnan Hurd, Ranking Member Kelly, and members of the 

Subcommittee. Thank you for the oppottunity to appear before the Committee today, and for 

your continued support of the men and women of the FBI. 

Today's FBI 

As you know, the Bureau has undergone unprecedented transformation in recent years to 

address and prevent threats to our national security and our public safety, from terrorism, statesponsored espionage, and cyber security to violent gangs, transnational organized crime, and 

crimes against children. 

As national security and criminal threats continue to evolve, so too must the FBI evolve 

to stay ahead of changing threats and changing technology. Today's FBI is a threat-focused, 

intelligence-driven organization. \Ve must continually ask ourselves whether we arc able to meet 

the challenges of the day, whatever they may be. 

Online technology has forever changed the world we live in. We're online, in one forn1 

or another. all day long. Our phones and computers have become reflections of our personalities, 

our interests. and our identities. With this online presence comes the need to protect our privacy 

and the security of our data. 

But, as with any technology, it can be used by some ve1y dangerous people, and the FBI 

has a swom duty to keep evety American safe from crime and terrorism while simultaneously 

protecting their constitutional rights and preserving their civil liberties. Moreover, we recognize 
9 


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our national interests in promoting innovation and the competiveness of U.S. companies in the 

global marketplace, as well as freedom of expression around the world. 

The evolution of technology is creating new challenges for law enforcement and our 

ability to access communications. We call it "Going Dark," and it means that those charged with 

protecting the American people arcn 't always able to access the information necessary to 

prosecute criminals and prevent terrorism even though we have lawful authority to do so. To be 

clear, we obtain the proper legal authority to intercept and access conmmnications and 

information, but we increasingly lack the technical ability to do so. This problem is broader and 

more extensive than just encryption. But, for purposes of my testimony today, I will focus on the 

challenges we face based on the evolving use of encryption. 

The issues law enforcement encounters with encryption occur in two overlapping 

contexts. The first concerns legally authorized real-time interception of what we call "data in 

motion," such as phone calls, email, text messages and chat sessions in transit. The second 

challenge concerns legally authorized access to data stored on devices. such as emaiL text 

messages, photos, and videos or what we call '·data at rest." Both data in motion and data at 

rest are increasingly encrypted. 

Court-Ordered Interception of Encrypted Data in Motion 

In the past, there were a limited number of communications catTiers. As a result, 

conducting electronic surveillance was more straightforward. We identified a target phone being 

used by a suspected criminal, obtained a court order for a wiretap, and, under the supervision of a 

judge, collected the evidence we needed for prosecution. 

Today, communications occur across countless providers, networks, and devices. We 

take our laptops, smart phones, and tablets to work and to school, from the soccer field to the 

coffee shop, traversing many networks, using any number of applications. And so, too, do those 

conspiring to hatm us. They use the same devices, the same networks, and the same applications 

to make plans. to target victims, and to concoct cover-up stories. 

Law enforcement and national security investigators need to be able to access 

communications and infonnation to obtain the evidence necessmy to prevent crime and bring 

criminals to justice in a court oflaw. We do so pursuant to the mle of law, with clear guidance 

and strict judicial oversight. But increasingly, even anned with a court order based on probable 

cause, we arc too often unable to access potential evidence. 

The Communications Assistance for Law Enforcement Act (CALEA) requires 

telecommunication caniers to be able to implement court orders for the purpose of intercepting 

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conununications. But that law wasn't designed to cover many of the new means of 

communication that exist today. Cunently, thousands of companies provide some form of 

communication service, but most do not have the ability to isolate and deliver particular 

information when ordered to do so by a court. Some have argued that access to metadata about 

these communications which is not encrypted should be sufficient for law enforcement. But 

metadata is incomplete information, and can be is difficult to analyze when time is of the 

essence. It can take days to parse mctadata into readable form, and additional time to con·elate 

and analyze the data to obtain meaningful and actionable inf(Hmation. 

Court-Ordered Access to Stored Encrypted Data 

Encryption of stored data is not new, but it has become increasingly prevalent and 

sophisticated. The challenge to law enforcement and national security officials has intensified 

with the advent of default encryption settings and stronger encryption standards on both devices 

and networks. 

In the past, a consumer had to decide whether to encrypt data stored on his or her device 

and take some action to implement that encryption. With today's new operating systems, 

however, a device and all of a user's information on that device can be encrypted by defaultwithout any affirmative action by the consumer. In the past, companies had the ability to decrypt 

devices when the Govemment obtained a search wanant and a court order. Today, companies 

have developed encryption technology which makes it impossible for them to decrypt data on 

devices they manufacture and sell, even when lawfully ordered to do so. Although there are 

strong and appropriate cybersecurity and other reasons to support these new uses of encryption, 

such decisions regarding system design have a tremendous impact on law enforcement's ability 

to light crime and bring perpetrators to justice. 

Evidence of criminal activity used to be found in written ledgers, boxes, drawers, and file 

cabinets, all of which could be searched pursuant to a wan·ant. But like the general population, 

criminal actors are increasingly storing such information on electronic devices. If these devices 

are automatically encrypted, the infonnation they contain may be unreadable to anyone other 

than the user of the device. Obtaining a search warrant for photos, videos, email, text messages, 

and documents can be an exercise in futility. Tcnorists and other criminals know this and will 

increasingly count on these means of evading detection. 

Additional Considerations 

Some assert that although more and more devices are encrypted, users back-up and store 

much of their data in "the cloud," and law enforcement agencies can access this data pursuant to 

court order. For several reasons, however, the data may not be there. First, aside from the 

teclmical requirements and settings needed to successfully back up data to the cloud, many 

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companies impose fees to store infonnation there fees which consumers may be unwilling to 

pay. Second, criminals can easily avoid putting infonnation where it may be accessible to law 

enforcement. Third, data backed up to the cloud typically includes only a portion of the data 

stored on a device, so key pieces of evidence may reside only on a criminal's or teiTorist's 

phone, for example. And if criminals do not back up their phones routinely, or if they opt out of 

uploading to the cloud altogether, the data may only be found on the devices themselvesdevices which are increasingly encrypted. 

Facing the Challenge 

The reality is that cyber adversaries will exploit any vulnerability they find. But security 

risks are better addressed by developing solutions dming the design phase of a specific product 

or service, rather than res01ting to a patchwork solution when law enforcement presents the 

company with a court order after the product or service has been deployed. 

To be clear, we in the FBI suppmt and encourage the use of secure networks and 

sophisticated encryption to prevent cyber threats to our critical national infrastructure, our 

intellectual propc1ty, and our data. We have been on the front lines of the fight against 

cybercrime and economic espionage and we recognize that absolute security does not exist in 

either the physical or digital world. Any lawful intercept or access solution should be designed 

to minimize its impact upon the overall security. But without a solution that enables law 

enforcement to access critical evidence, many investigations could be at a dead end. The same is 

tme lor cyber security investigations; if there is no way to access encrypted systems and data, we 

may not be able to identifY those who seek to steal our technology, our state secrets, our 

intellectual property, and our trade secrets. 

A conunonmisperception is that we can simply break into a device using a "brute force" 

attack- the idea that with enough computing resources devoted to the task, we can defeat any 

encryption. But the reality is that even a supercomputer would have difficulty with today's highlevel encryption standards. And some devices have a setting that erases the encryption key if 

someone makes too many attempts to break the password, effectively closing all access to that 

data, 

Finally, a reasonable person might also ask, "Can't you just compel the owner of the 

device to produce the infonnation in a readable fmm?" Even if we could compel an individual 

to provide this infonnation, a suspected c1iminal would more likely choose to defy the comt's 

order and accept a punishment for contempt rather than risk a 30-year sentence for, say, 

prodnction and distribution of child pomography. 

Without access to the 1ight evidence, we fear we may not be able to identify and stop 

child predators hiding in the shadows of the Tntemet, violent criminals who are targeting our 

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neighborhoods, and terrorists who may be using social media to recruit, plan, and execute an 

attack in our country. We may not be able to recover critical information from a device that 

belongs to a victim who can't provide us with the password, especially when time is of the 

essence. 

Examples 

The more we as a society rely on electronic devices to communicate and store 

information, the more likely it is that evidence that was once found in filing cabinets, letters, and 

photo albums will now be available only in electronic storage. We have seen case after case 

from homicides and kidnappings, to drug trafficking, financial fraud, and child exploitationwhere critical evidence came from smart phones, computers, and online communications. 

Each of the following examples demonstrates how important information stored on 

electronic devices can be to prosecuting criminals and stopping crime. As encryption solutions 

become increasingly inaccessible for law enforcement, it is cases like these that could go 

unsolved, and criminals like these that could go free. 

As an example of the importance of lawful access to smart phones, consider the case 

involving a long-haul trucker who kidnapped his girlfriend, imprisoned her within his truck, 

drove her from State to State, and physically and sexually assaulted her along the way. The 

victim eventually leapt fi·om the truck and escaped to nearby civilians, and later the police. The 

trucker refuted the charges and claimed the sexual activity was consensual. In this case, law 

enforcement obtained a search warrant for the bucker's smart phone, as well as a court order 

requiring the phone manufacturer's assistance to extract that data. Through this court-authorized 

process, law enforcement recovered video and images of the abuse stored on the smart phone, 

which were integral to cmToborating the victim's testimony at trial. The tJuckcr was convicted 

of kidnapping and interstate domestic violence at trial, and sentenced to life in prison. 

Additionally, in a case investigated by a small Midwest police department, a woman 

reported that an unknown stranger forcibly raped her while she was out walking. She sought 

treatment at a local hospital where a sexual assault examination was performed. However, the 

investigator noted peculiarities in the woman's responses during the interview and requested 

access to her phone. She consented and, using forensic tools, the investigator uncovered 

evidence indicating the woman had sought out a stranger via an Intemet adve1iiscmcnt with the 

intent to get pregnant. To cover her infidelity, she fabricated the stmy that a stranger had raped 

her. When confronted with the communications recovered from her phone, the woman admitted 

the rape report was false. Without the digital evidence, an innocent man may well have been 

accused of a violent sexual assault. 

Another investigation in Clark County, Nevada, centered on allegations that a woman and 

her boyfi'iend conspired together to kill the woman's father who died after being stabbed 

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approximately 30 times. Text messages which had been deleted from the phone and recovered 

by investigators revealed the couple's plans in detail, clearly showing premeditation. 

Additionally, the communications around the time of the killing proved that both of them were 

involved throughout the process and during the entire event, resulting in both being charged with 

murder and conspiracy to commit murder. 

Following a joint investigation conducted by the FBI and Indiana State Police, a pastor 

pleaded guilty in Federal court to transporting a minor across state lines with intent to engage in 

illicit sexual conduct in connection with his sexual relationship with an underage girl who was a 

student at the church's high school. During this investigation, infonnation recovered fl·om the 

pastor's smm1 phone proved to be crucial in showing the actions taken by the pastor in the 

commission of his crimes. Using forensic software, investigators identified Wi-Fi locations, 

dates, and times when the pastor traveled out of state to be with the victim. The analysis 

uncovered Internet searches including, "What is the legal age of consent in Indiana'', "'What is 

the legal age of consent in Michigan··, and "Penalty for sexting Indiana." In addition, image 

files were located which depicted him in compromising positions with the victim. 

These are examples of how important evidence that resides on smart phones and other 

devices can be to law enforcement- evidence that might not have been available to us had strong 

encryption been in place on those devices and the user's consent not granted. 

The above examples serve to show how critical electronic evidence has become in the 

course of our investigations and how timely, reliable access to it is imperative to ensuring public 

safety. Today's encryption methods arc increasingly more sophisticated, and pose an even 

greater challenge to law enforcement. We are seeing more and more cases where we believe 

significant evidence resides on a phone, a tablet, or a laptop evidence that may be the 

difference between an offender being convicted or acquitted- but we cannot access it. 

Previously, a company that manufactmed a communications device could assist law 

enforcement in unlocking the device. Today, however, upon receipt of a lawful com1 order, the 

company might only be able to provide information that was backed up in the cloud- and there 

is no guarantee such a backup exists, that the data is cunent, or that it would be relevant to the 

investigation. If this becomes the nonn, it will be increasingly difficult for us to investigate and 

prevent crime and tcnorist threats. 

Civil Liberties and the Rule of Law 

Just as we have an obligation to address threats to our national security and our pub lie 

safety, we also have an obligation to consider the potential impact of our investigations on civil 

liberties, including the right to privacy. 

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Intelligence and technology are key tools we use to stay ahead of those who would do us 

hann. Yet, as we evolve and adapt our investigative techniques and our use of technology to 

keep pace with today's complex threat enviromnent, we must always act within the confines of 

the rule of law and the safeguards guaranteed by the Constitution. 

The people of the FBI are sworn to protect both security and liberty. We care deeply 

about protecting liberty including an individual's right to privacy through due process oflaw -

while simultaneously protecting this country and safeguarding the citizens we serve. 

The rule of law is our true north; it is the guiding principle for all that we do. The world 

around us continues to change, but within the FBL our values must never change. Every FBI 

employee takes an oath promising to uphold the United States Constitution. It is not enough to 

catch the criminals; we must do so while upholding civil rights. It is not enough to stop the 

terrorists; we must do so \Vhile maintaining civil liberties. It is not enough to prevent foreign 

nations from stealing our secrets; we must do so while upholding the rule oflaw. 

Following the rule of law and upholding eivillibertics and civil rights are not burdens. 

They arc what make all of us safer and stronger. In the end, we in the FBI will be judged not 

only by our ability to keep Americans safe from crime and tenorism, but also by whether we 

safeguard the liberties for which we are fighting and maintain the trust of the American people. 

And with the mle of law as our guiding principle, we also believe that no one in this 

country should be beyond the law. We must follow the letter of the law, whether examining the 

contents of a suspected individual's closet or the contents of her smart phone. But the notion that 

the closet could never be opened -or that the phone could never be unlocked or unencryptedeven with a properly obtained com1 order, is troubling. 

Are we as a society comfortable knowing that cc11ain infom1ation is no longer available 

to law enforcement under any circumstances? Is there no way to reconcile personal privacy and 

public safety? It is time to have open and honest debates about these issues. 

Where Do We Go From Here? 

The FBI conf!·onts serious threats to public safety eveq day. So in discussing 

developments that thwart the court-authorized tools we use to investigate suspected criminals, 

we must be sure to understand what society gains, and what we all stand to lose. \Vhat is law 

enforcement's recourse when we are not able to access stored data and real-time 

communications, despite having a court order0 What happens when we cannot decipher the 

passcode? What happens ifthere are no other means to access the digital evidence we need to 

find a victim or prosecute a criminal? We will use eve1y lawfully authmized investigative tool 

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we have to protect the citizens we serve. but having to rely on those other tools could delay 

criminal investigations, preclude us from identifying victims and co-conspirators, risk 

prematurely alerting suspects to our investigative interests, and potentially put lives in danger. 

We will continue to work with our Federal, State, tribal, and local pa11ners to identify a 

path forward. We are thankful for Congress' suppol1 in funding the National Domestic 

Communications Assistance Center, which will enable law enforcement to share tools, train one 

another in available intercept solutions, and reach out to the cmmnunications industry with one 

voice. 

Companies must continue to provide strong encryption for their customers and make 

every effmt to protect their privacy, but so too does law enforcement have a real need to obtain 

ce11ain communications data when ordered by a coul1 oflaw. We care about the same thingssafety, security, and prosperity. And from the FBI's perspective, we know an adversarial posture 

won't help any of us in achieving those things. We must challenge both government and 

industry to develop innovative solutions to secure networks and devices, yet still yield 

infonnation needed to protect our society against threats and ensure public safety. 

Perhaps most importantly, we need to make sure the American public understands the 

issues and what is at stake. 

I believe we can come to a consensus, through a reasoned and practical approach. And 

we must get there together. It is only by working together within the law enforcement and 

intelligence communities, with the private sector, and with our elected officials- that we will 

find a long-term solution to this growing problem. 

We in the FBI want to continue the discussion about how to solve these serious problems. 

We want to work with Congress, with our colleagues in the private sector, with our law 

enforcement and national security pat1ners, and with the people we serve. to find the right 

balance for our country. 

Conclusion 

Chainnan Hurd, Ranking Member Kelly, and members of the committee, I thank you for 

this oppm1unity to discuss the FBI's priorities and the challenges of Going Dark. The work we 

do would not be possible without the suppmt of Congress and the American people. I would be 

happy to answer any questions that you may have. 

### 

- 8 -
16 

Mr. HURD. Thank you, Ms. Hess. 

Now we recognize Mr. Conley for 5 minutes. 

STATEMENT OF DANIEL F. CONLEY 

Mr. CONLEY. Chairman Hurd, Ranking Member Kelly, and members of the subcommittee, my name is Dan Conley, and I’m the District Attorney in Boston and a member of the National District Attorneys Association, the largest association of prosecutors in America. Thank you for the invitation to testify today here today on this 

critical issue. 

Last year, when Apple and Google announced their new operating system, they touted that the technology would not allow law 

enforcement, even with a court order, to access information on its 

mobile devices. 

In America, we often say that none of us is above the law. But 

when corporate interests place crucial evidence beyond the legitimate reach of our courts, they are, in fact, granting those who 

rape, defraud, assault, or even kill a profound legal advantage over 

victims in society. So I’m here today to ask Congress to intervene. 

As a prosecutor, my most important duty is to ensure that evidence we present in court is gathered fairly, ethically, and legally. 

If it’s not, if a search is improper, a court will suppress that evidence and exclude it. 

We, as Americans, enjoy a presumptive right to privacy that may 

only be abridged under clearly defined circumstances, such as when 

there are specific articulable facts that would lead a judge to believe that the place to be searched will yield evidence of a crime. 

In decades past, these places were car trunks and safety deposit 

boxes. Today they are mobile devices. 

We undertake those searches to solve crimes. We don’t wander 

to Web sites where people visit or aggregate data about people’s 

personal health, wealth, or shopping habits. That, frankly, is the 

purview of companies like Apple and Google. 

Their nominal commitment to privacy rights would be far more 

credible if they were forbidding themselves access to their customers’ interests, search terms, and consumer habits. But, as we 

all know, they are taking full advantage of their customers’ private 

data for commercial purposes while building an impenetrable barrier around evidence in legitimate court-authorized investigations. 

For over 200 years of American jurisprudence, our courts have 

balanced the rights of individuals against society. But, in this case, 

in one fell swoop, Apple and Google have upended it. They have 

created hiding places not merely beyond the reach of law enforcement, but beyond the laws that define our Nation. 

Let me give you an idea of what this means in practical terms. 

In every big city, there’s a mass transit system and a disgraceful 

practice of snapping photographs up women’s skirts has taken 

place. If the offender’s phone cannot be searched pursuant to a 

warrant, then the evidence won’t be recovered and this practice 

will be an unchargeable crime. This isn’t even the worst of it. 

Three years ago we were investigating a child pornography case. 

We just thought a teacher was trading child pornography. Turns 

out, after we got a warrant and examined his mobile devices, he 

was not only collecting photographs, he was actually abusing chilVerDate Nov 24 2008 10:23 Jul 11, 2017 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 H:\25879.XXX APRIL

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dren. After a multijurisdictional investigation, he’s serving 45 years 

in prison. If those devices were encrypted today, he would be free 

to continue what he’s doing on our streets. 

Human trafficking and commercial sexual exploitation of children is also aided and abetted by the same technology with victims, 

including children, advertised for sale on Web sites accessed 

through handheld devices. With these operating systems, those devices would become warrant-proof and the evidence they contain 

unreachable by investigators. 

Now, I don’t believe Apple or Google set out to design an 

encryption system to protect human traffickers, but this is the result. When we talk about warrant-proof encryption, it is the perpetrators of every violent sexual or financial crime in which 

handheld technology is used who benefit. This isn’t rhetoric. This 

is reality. 

Like most Americans, I am a customer of these companies and 

I hold my privacy interest dear, and I understand and I strongly 

encourage the use of secure encryption technology to prevent hacking, theft, and fraud. And I think most people recognize that there 

must be a balance struck between individual’s privacy rights and 

the legitimate interests of our society to bring dangerous criminals 

to account. Apple and Google need to recognize this as well. 

I will conclude today by pointing out that, for the past several 

weeks, in Boston and around the country, individuals have all been 

following the trial of one of the individuals who was a terrorist in 

Boston 2 years ago and, through his actions, left four people dead 

and hundreds more grievously injured. Cell phone evidence, much 

of it volunteered by people, but some of it obtained by warrant, was 

critical to understanding what happened, how it happened, and 

who did it. 

Were law enforcement blocked from obtaining that evidence, the 

apprehension of those responsible for the Boston Marathon bombings might have been very much in doubt. So, again, I don’t think 

Apple or Google intended to create a safe space for terrorists to do 

their deeds. But make no mistake. This is the result and those are 

the stakes. 

I therefore respectfully urge Congress to help us find a reasonable, balanced solution that protects privacy while also ensuring 

that there are reasonable means to gain lawful access to crucial 

evidence. I thank you for your time and attention, and I look forward to your questions. Thank you. 

[Prepared statement of Mr. Conley follows:] 


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Testimony of 

Daniel F. Conley 

Suffolk County District Attorney 

Massachusetts 

EnClyption Technology and Potential U.S. Policy Responses 

Committee on Oversight and Govemment Reform 

Subcommittee on Information Technology 

Wednesday, April29, 2015 
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Chairman Hurd, Ranking Member Kelly, members of the subcommittee, my name is Dan Conley 

and I am the elected District Attorney of Suffolk County, Massachusetts, which includes the city 

of Boston. I am also cunently a board member of the National District Attorneys Association 

(NDAA), the largest association representing the voice of prosecutors across the country. I 

appreciate the invitation to testify before you today on a critical issue facing state and local law 

enforcement from around the country. 

Last year, when Apple announced its new iOS 8 operating system, it touted the fact that this 

technology would not allow law enforcement, even with a court order, to access infonnation on 

its mobile phones, computers, iPads and other devices. Google also stated that its new operating 

system would make its mobile devices inaccessible to law enforcement officials, even with a 

wanant signed by a judge. What's more, this inaccessibility has been presented not as a bug to 

be fixed but as a selling point to be featured. 

In America, we often say that none of us is above the Jaw. But when unaccountable corporate 

interests place crucial evidence beyond the legitimate reach of our courts, they arc in fact placing 

those who rape, defraud, assault and even kill in a position of profound advantage over victims 

and society. One of my colleagues, Cy Vance, the District Attomey for New York County, has 

been a leading voice on this issue. He· s met directly with representatives from Google and 

Apple to listen to their concerns, express our own, lay out the facts, and find a solution, but has 

been unable to move them ±i·om their position. So 1 am here today to ask Congress to help us 

find a solution because what Apple and Google are doing is dangerous and should not be allowed 

to continue. 

As a prosecutor, one of my most important duties is to ensure that the evidence we present in 

cou11 is gathered fairly, ethically, and legally. There is a very good reason for this: the penalty 

for oveiTcach is suppression of the evidence. If a search is illegal, if a warrant is flawed, then the 

evidence it yields is excluded and we cannot use it. Under the Fourth Amendment to the 

Constitution, we as Americans enjoy a presumptive right to privacy that may only be violated 

under ce1iain, clearly-defined circumstances. Among those circumstances is when there are 
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specific, articulablc facts that would lead a reasonable person- and a judge- to believe that the 

place to be searched will yield evidence of a crime. 

In short, the Fom1h Amendment allows law enforcement access to the places where criminals 

hide evidence of their crimes, once the legal threshold has been met. In decades past, these 

places were car bunks and safety deposit boxes; today they are computers and smmt phones. 

Law enforcement agencies like mine undeiiake these lawful searches to solve crimes that have 

occurred and prevent further crimes from taking place. We don't monitor what web sites people 

visit. or aggregate data about people's personal health, wealth, or shopping habits. That. 

fi·ankly, is the purview of companies like Apple and Google. Their nominal commitment to 

privacy rights would be far more credible if they were forbidding themselves access to their 

customers· interests, search terms. and consumer habits. but as we all know, that's not a step 

they're willing to take. Instead, they're taking full advantage of their customers' private data for 

commercial purposes while building an impenetrable barrier around evidence in legitimate, 

court-authorized criminal investigations. 

Apple and Google are using an unreasonable, hypothetical nan·ative of government innusion as 

the rationale for the new encryption software, ignoring altogether the facts as I've just explained 

them. And taking it to a dangerous extreme in these new operating systems. they've made 

legitimate evidence stored on handheld devices inaccessible to anyone, even with a wan·ant 

issued by an impartial judge. For over 200 years, American jurispmdence has refined the 

balancing test that weighs the individual's rights against those of society. and with one fell 

swoop Apple and Google has upended it. They have created spaces not merely beyond the reach 

of law enforcement agencies, but beyond the reach of our courts and our laws, and therefore our 

society. 

Let me give you an idea what this means in practical te1ms. In every major city with mass 

transit, prosecutors have been confronted with a rising number of men who use their phones to 

take pictures and videos up female passengers' skirts. The practice is called "upskirting.'' and it 

violates the right that every person has to privacy beneath our own clothes. If the offender's 
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phone can't be searched pursuant to a warrant, then the evidence won't be recovered and this 

practice will become absolutely un-chargeable as a criminal offense. But this isn't nearly the 

worst of it. 

Three years ago, we were investigating a child pornography case that led us to a Boston-area 

teacher. These cases, which re-victimize child rape victims every time an image or video clip is 

shared, have skyrocketed in the past decade with the advent offaster, more po\verful technology, 

Early on in this particular case, we believed the teacher was merely trading child pornography, 

but after obtaining and executing search wanants on his electronic devices we recovered 

evidence that he was actually abusing children and recording his crimes. After a multijurisdictional investigation, he was indicted and sentenced to a 45-year federal prison sentence. 

But if his phone had been encrypted with the technology at issue today, that evidence would 

have been beyond our reach and he would have been above the law. 

Human trafficking and commercial sexual exploitation of children is also on the rise in America 

and globally, aided and abetted by the same technology, Irs moved off the street corner and into 

motels with Wi-Fi access. with victims. including children, advertised for sale on web sites 

accessed through handheld devices. With these operating systems, those devices would become 

wanant-proof and the evidence they contain unreachable by investigators. I don't believe that 

Apple or Google set out to design a system to enable human trafficking, but that's precisely what 

these new systems do. 

So when we talk about WaiTant-proof encryption. let's be very clear about who will benefit from 

it: perpetrators of every violent, sexual, or financial crime in which handheld technology is used. 

I would be hard pressed to think of any homicide solved in recent years where significant, 

critical evidence wasn't recovered from a cell phone. We've uncovered massive economic and 

financial fraud schemes and disrupted vast drug trafficking rings, none of which could have been 

stopped, let alone solved, had law enforcement- with the blessing of the comis - been blocked 

from exercising the legal and legitimate means to do so. This isn't rhetoric. It's reality. 
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Apple and Google operating systems run a combined 96.4% of smartphones worldwide, and as 

of March, 78% of all Apple devices are running iOS 8. This means law enforcement is unable to 

access data on 78% of all pin-locked Apple devices, and that number is growing every day. It is 

a myth that law enforcement has some secret means to decrypt these devices. It is also patently 

false to claim that this same data can be downloaded from the cloud when most of it is never 

uploaded to begin with. 

This is not an issue of mass data collection. Whatever some advocates might claim about the 

search warrants granted each year to federal, state and local law enforcement, those wanants are 

authorized by independent judges, they are based upon an established legal principle, and they 

affect only the tiny, tiny percentage of the population against whom there is specific, articulable 

evidence of criminal activity. Let's remember, the vast majority of people are leading honest, 

upstanding lives every day. We're not interested in \Vhat's on their phones. Even Apple's own 

estimates show that only 0.00571% of customers had inf01mation disclosed due to govemment 

infonnation requests. 

And while some might point to overreach and intrusion by the NSA as justification for designing 

phones that block out entirely the government's ability to gain access to them, I think the vast 

majority of Americans recognize that over-reacting and shutting off access to these phones under 

and any and all circumstances will not only make it monumentally harder to solve crimes and 

hold c1iminals accountable in the digital age, but will also make it infinitely more difficult to 

detect and prevent terrorist threats. 

It is ironic that what Google and Apple are doing is, in many ways, a response to what occurred 

at the NSA, but it is state and local law enforcement and the tens of millions of Americans we 

protect and victims we serve who are now bearing the brunt of it. We recognize that Google and 

Apple arc global companies with a worldwide customer base, but whatever goodwill or support 

they believe they will earn with these dangerous operating systems will erode rapidly as victims 

of physical and economic predation find their paths to justice blocked while those who hurt and 

exploit them are protected. 
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Let's also be clear about another unintended consequence of these operating systems: by cutting 

off law enforcement and society's legitimate interests in obtaining evidence to hold the guilty 

accountable, it also cuts us off from crucial evidence that speaks to factual innocence. While the 

evidence obtained from a smart phone will often place an individual at the scene of a crime or 

provide other evidence of guilt, that same information eliminates other people from the realm of 

possible suspects. In the past decade, the technology driving exonerations of wrongly convicted 

defendants has been DNA science. But the day is not far off when a piece of digital evidence 

obtained from a cell phone will prove to be the key that frees an innocent man. 

What these companies are doing is unprecedented. and for good reason: they are substituting 

their own interests for 200 years of jurisprudence and the independent judgment of our courts, 

our legislatures, and our Congress as to how the Fourth Amendment to the Constitution should 

be balanced and applied. 

In addition. I can think of no other example of a tool or technology that is specifically designed 

and allowed to exist completely beyond the legitimate reach of law enforcement. our courts. our 

Congress, and thus, the people. :--Jot safe deposit boxes, not telephones, not automobiles, not 

homes. Even if the technology existed, would we allow architects to design buildings that would 

keep police and firefighters out under any and all circumstances? The inherent risk of such a 

thing is obvious so the answer is no. So too are the inherent risks of what Apple and Google 

have devised with these operating systems that will provide no means of access to anyone. 

anywhere, anytime, under any circumstance. 

Like most Americans, I too am a customer of these companies and I hold my privacy rights dear. 

As the head of one of the largest District Attorney's Offices in the country. I also understand the 

value of, and strongly encomage the use of, secme encryption technology to prevent hacking, 

thetl, and fraud. I think most people recognize however, that balance must be struck between an 

individual's privacy rights and the legitimate interests of society to protect itself and bring 

dangerous criminals to justice. Apple and Google need to recognize this, too. 
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I will conclude today by pointing out that for weeks now in Boston and all across the country, we 

have been following the trial of one of the terrorists whose actions at the Boston Marathon two 

years ago left four people dead and hundreds more grievously injured. Cell phone evidencemuch of it volunteered but some obtained only through a waJTant - was critical to understanding 

what happened, how it happened, and who did it. Were law enforcement blocked from obtaining 

that evidence, or if other companies were allowed to make their own detetminations as to what 

video or other evidence law enforcement was and was not pem1itted to see, the apprehension of 

those responsible for the Boston Marathon bombings would have been very much in doubt. 

Again. 1 don't believe that Apple or Google intend to create "safe space for tetTorists", but make 

no mistake, that would be the result and those are the stakes. 

Therefore, I respectfully urge Congress to prohibit the sale of digital devices that cannot be 

accessed pursuant to court orders. 1 would further urge Congress to update the Communications 

for Law Enforcement Assistance Act, or CALEA, to cover smartphones and ensure that there is a 

reasonable solutions for law enforcement to gain legal access to crucial evidence. Thank you for 

your time and attention and I am happy to take any questions you might have. 
25 

Mr. HURD. Thank you, Mr. Conley. 

Now I would like to recognize Mr. Bankston for 5 minutes. 

STATEMENT OF KEVIN S. BANKSTON 

Mr. BANKSTON. Thank you, Chairman, Ranking Member Kelly, 

members of the subcommittee. 

District Attorney Conley is absolutely right that encryption is 

one of the most critical law-and-order issues of our time. However—and with respect and thanks for his and the FBI’s work to 

keep us all safer—he has got it exactly backward. Strong 

encryption is absolutely critical to the preservation of law and 

order in the digital age much more than it is a threat to it. 

Some have framed this debate as a choice between safety and 

privacy, but that is a false choice. The debate over whether to allow 

strong encryption without back doors is really a choice between 

safety and safety, a little more safety against some isolated crimes 

or much more safety for many more people against countless other 

concrete criminal and national security threats, be they street 

criminals looking to steal our phones and laptops, ID thieves and 

fraudsters and Russian hackers and corporate spies trying to steal 

our most valuable data, or foreign intelligence agencies trying to 

compromise our most sensitive national security secrets. 

The ultimate question isn’t what will make law enforcement’s job 

easier in some investigations. The ultimate question is what will 

prevent more crime, which will make law enforcement’s job easier 

overall and will keep us all safer. The answer to that question is 

more strong encryption, not less. 

I won’t deny that encrypted devices or end-to-end encrypted communications will, in some cases, inconvenience law enforcement. 

Notably, however, the Government has yet to provide a single specific example where such encryption has posed an insurmountable 

problem. That’s likely because there are often a variety of other 

ways for law enforcement to get the evidence that it needs. 

The FBI is concerned that it’s ‘‘going dark.’’ But, all in all, the 

digital revolution has been an enormous boon to law enforcement, 

what some have called a golden age of surveillance. 

More and more of our interactions with others and with the 

world are moving into the digital realm, being quantified and recorded, an unprecedented and exponentially growing cache of sensitive data about all of us, and most of it available to law enforcement. 

Think about the massive archives of private email and instant 

messages and text messages and photos and videos and the vast 

public records of our social network activities, most of which didn’t 

exist or weren’t available just 15 years ago, most of which are 

stored in the Internet cloud and are easily accessible to law enforcement, and much of which is backed up from the very same 

encrypted phones that the Government is concerned about. 

Think of all the new metadata revealing when and with whom 

all those messages were exchanged, where and when those photos 

and videos were taken. And think especially about all that new location data generated by our cell phones and by our mobile apps, 

creating extensive records of our movements regardless of whether 

those phones are encrypted or not. 


KING-6430 with DISTILLER
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Think about all of that when law enforcement says it is going 

dark. I would counter that, by most measures, they are going 

bright. And in those few cases where they are in the dark and they 

truly need the data on an encrypted device, even then there are options. 

They can in many cases ask the Court to compel the owner to 

decrypt the device under threat of contempt or even remotely hack 

into the device over the Internet, a technique that is somewhat 

worrisomely being used more and more often. 

Admittedly, I have some serious constitutional concerns about 

both of those law enforcement techniques, but I am much more 

concerned that, in order to address those rare cases, law enforcement seems to want Congress to take steps that would undermine 

everyone’s security rather than targeting an individual suspect. 

Make no mistake. Attempting to mandate encryption back doors 

will undermine everyone’s security, as Professor Blaze will testify. 

That is the unanimous conclusion of every technical expert that 

has spoken publicly on this issue. 

And, as Mr. Potter will make clear, surveillance backdoor mandates would also undermine our economic security and prompt 

international customers and many American consumers and even 

many of the bad guys that we’re trying to stop to turn away from 

the compromised products and services offered by U.S. companies. 

It’s true now, just as it was true during the so-called crypto wars 

of the 1990s, weakening encryption is a bad idea. That is why a 

majority of the House of Representatives at the time, including four 

current members of this Oversight Committee, including Ranking 

Member Cummings, co-sponsored Chairman Goodlatte’s Security 

and Freedom Through Encryption Act, which would have reaffirmed Americans’ right to make, use, and distribute strong 

encryption products without back doors. 

That is why a majority of the House just last year voted for the 

Sensenbrenner-Massie-Lofgren Amendment that would have prohibited the NSA from demanding or even asking that companies 

weakenthe security of their products. And that is why this Congress should similarly reject any short-sighted backdoor proposals 

in favor of preserving our long-term national and economic security. 

Thank you very much. And I look forward to your questions, in 

particular, any questions about the 10 specific arguments laid out 

in my written testimony. Thank you. 

[Prepared statement of Mr. Bankston follows:] 


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·-

Statement of Kevin S. Bankston 

Policy Director of New America's Open Technology Institute 

& Co-Director of New America's Cybersecnrity Initiative 

Before the U.S. House of Representatives 

Subcommittee on Information Technology 

of the Committee on Oversight and Government Reform 

Hearing on "Encryption Technology and Possible U.S. Policy Responses" 

April 29, 2015 

Chairman Hurd, Ranking Member Kelly and Members of the Subcommittee: 

Thank you for giving me the opportunity to testify today on the importance of strong encryption 

technology to Americans' continued security and prosperity, and allowing me to articulate the 

arguments against recent suggestions that Congress should legislate to limit the availability of 

strongly encrypted products and services. I represent New America's Open Technology Institute 

(OTI), where 1 am Policy Director of the OTl program and also Co-Director of New America's 

cross-programmatic Cybersecurity Initiative. New America is a nonprofit civic enterprise 

dedicated to the renewal of American politics, prosperity, and purpose in th<: digital age through 

big ideas, technological innovation, next generation politics, and creative engagement with broad 

audiences. OTI is New America's program dedicated to technology policy and technology 

development in support of digital rights, social justice, and universal access to open and secure 

communications networks. 

ln September, Apple and Googlc enhanced the security of all smartphone users by modifying the 

operating system software of iPhones and Android smartphones, respectively, to ensure that the 

contents of those phones arc encrypted by default such that only tbc user can decrypt them. 1 

However, instead of praising those companies for taking a step that would help prevent countless 

crimes and data breaches, a variety ofhigh-lcvellaw enforcement and intelligence officials 

instead quickly raised concerns that such unbreakable encryption-whether in the context of 

smartphones or in the context of end-to-end encrypted Internet communications-may pose a 

challenge to law enforcement and intelligence investigations.' Several officials have even gone 

1 Craig Timberg, "Apple will no longer unlock most iPhoncs, iPads for police~ even with search warrants," The 

Washington Post. September I 8, 2014, a1·ailable at 

2 For a summary of the controversy as it stood in November 2014, along with a bibliograph)' of relevant 

announcements, speeches. op-eds, ana1yses and other resources that had been published up to that point, see 
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so far as to urge Congress to pass legislation to address the issue,3 presumably by requiring 

companies to build their systems such that even when their users' data is encrypted, the 

government can still obtain the plain text of that data when necessary to a lawful investigation, 

Put more colloquially, they seem to be suggesting that companies build "backdoors" into their 

encrypted products and services in order to allow surreptitious access by the government. 

With all due respect for the many legitimate needs of our law enforcement and intelligence 

agencies, I am here today to give you ten reasons why Congress should reject any such proposaL 

First and most obviously ... 

1. It was already rejected as a policy approach two decades ago, including by Congress. 

American policymakers were faced with just this issue in the 90s as part of a policy debate often 

referred to as the "Crypto Wars," where the Clinton Administration battled against privacy 

advocates and the technology industry on a variety of fronts to limit the spread of strong 

encryption in order to address law enforcement and intelligence concems.4 One conflict was over 

the U.S. government's attempts to promote so-called "key escrow'' technologies--such as the 

much-maligned "Clipper Chip"5

-whcreby the government or a trusted third party would hold 

master keys that could decode any encrypted communications. The other conflict was over the 

U.S. government's attempts to restrict the proliferation of strong encryption products overseas by 

treating them as munitions subject to export controls. Ultimately, after many years of debate and 

widespread opposition from the public as well as from Congress, the Administration withdrew its 

key escrow proposals and relaxed export restrictions on encryption. It did so in response to many 

of the same arguments that I will make today: that strong encryption is vital to our information 

security, to our economic security, and to our privacy and free speech, and that attempts to limit 

Danic1le Kehl & Kevin Bankston, "The #CryptoDebatc is Cmning: Are You Prepared?", New llmerica 's Open 

Technology institute, November 14.2014, arailahle 

For a hasic introduction to encryption technology and the role that it plays 

"Encryption 101," Slate, February 24.2015. ami/able at 

"""!'""'"''Congress should act appropriately.'"). 

For a brief but well-documented summary of the Crypto \Vars and their lessons for today's policymakers. sec 

Daniclle Kehl. Kevin Bankston & Andi Wilson, "Comments to the UN Special Rapporteur on Freedom of 

Expression and Opinion Regarding the Relationship Between Free Expression and the Usc of Encryption," Ne11· 

America's Open Technology lnstitute, February 10, 2015, m·ailable at 

Holl'!he 

2 
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the distribution or usc of strong encryption that is free of government backdoors will not only 

undermine those priorities but will be ineffective and ultimately unnecessary. 

The eventual consensus on these points was summed up at the time by Representative Bob 

Goodlatte, who concluded that "[o]nly by allowing the usc of strong encryption, not only 

domestically but internationally as well, can we hope to make the Internet a safe and secure 

environment.''6 That consensus was reflected by Congressman Goodlattc's Security and Freedom 

Through Encryption or "SAFE" Act, a bill that sought to reaffirm Americans' right to distribute 

and usc strong encryption. bar the government from mandating the use of key escrow 

technologies, and allow for the export of strong encryption. 7 By 1999, that bill was cosponsored 

by a majority of House members-258 of them, including current members of this oversight 

committee, Ranking Member Elijah Cummings (D-MD), Rep. John "Jimmy" Duncan Jr. (RTN), Rep. John Mica (R-FL), and Del. Eleanor Norton (D-DC) 8 

That bill was also in line with the recommendations of the National Academies. which after 

extensive study issued a 700-plus page report on the policy challenges posed by encl)'ption. Its 

primary recommendation was: 

Recommendation 1-No law should bar the manufacture, sale, or use of any form of 

encryption within the United States. Specifically. a legislative ban on the use of 

unescrowed encryption would raise both technical and legal or constitutional issues. 

Technically, many methods are available to circumvent such a ban: legally, constitutional 

issues, especially those related to free speech, would be almost certain to arise. issues that 

are not trivial to resolve. 9 

As Professor Peter Swire, the White House's privacy czar at the time that it announced its newly 

liberalized encryption export policies, recently summed up the conclusion of the Crypto Wars: 

"If there is modest harm and enonnous gain to be derived from using certain technology. 

societies should logically adopt that technology. In 1999, the U.S. government concluded that 

strong encryption was precisely that type of valuable technology-it was worth going at least 

slightly "dark" in order to reap the many benefits of effective encryption." 10 One of the most 

obvious bene tits of encryption-then as now-is that it ensures the security of the private 

communications and data of Americans and American companies against all attackers. And if lhc 

govcmment were to mandate back doors into encrypted products and services ... 

2. It would seriously undermine our nation's C)'bersccurity, at a time when that security is 

already in crisis as demonstrated by the endless string of high profile data breaches in the past 

r, ··statement of Rep. Bob Cioodlatte (R-VA) on re-introduction of the Security and Freedom Through Encryption 

(SAFE) Act:· The l.i/nwy of' Congress, February 25, 1999, ami/able at 

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vear. 11 Every technical expert that has spoken publicly on this controversy since it began last 

September-both experts from the generation that fought in the original Crypto Wars, 12 as well 

as experts from the next gcncration13-has concluded that it is impossible to devise a system that 

provides government access to data on encrypted devices, or to end-to-end encrypted 

communications, while also ensuring that it remains secure against other attackers, be they 

computer criminals, industrial spies, Chinese intelligence, or anyone else. 14 Vvhether you want to 

call it a front door or a back door, mandating guaranteed government access to encrypted data 

would open us up to a variety of new cybcr-thrcats. In fact, it would be an open invitation for 

attackers to focus on hacking into U.S. products and services because they would be easier 

targets than products and services that are not subject to such mandated vulnerabilities. 

As the Chieflnfonnation Security Officer of Yahoo put it when debating the issue with the 

Director of the NSA at New America's cybcrsccurity conference in February, "all of the best 

public cryptographers in the world would agree that you can't really build [secure] backdoors in 

'

1 A \Yidc yaricty of commentators have labeled 2014 "the year of the hack" after an tmtJrcccclcntcd string of major 

security breaches. Arjun Khai}Jal. "Year ol'thc Hack'' A Billion Records 2014:· .\'BC Ncll·s, 

February 12. 2015. arailable 

; Bridget Carey, "2014: Year of the Hack," CVET .Maga::ine, December 18,2014, m•ai/able at 

''-'o'.:\\ .. <J:1•:'1f.Q!l.Lil<C\l_S_··c''.l:l::'l"':.J:"l!I:i'l:llli::ll'!~: Andrew Lumby. "20!4: The Year of the Hack:· Fiscal 

"··" .\\:,(o,:J.Is.c·C).ilUY'.£'.C'l'l2 .• f~.i :LLe:j.U ~·' i~: ... l. '"''··'·''·"''", Jcnn i fer 

<h"c'l!J:i::ill:ill!l<jl!Qll::ill.U.C:Cfl!~ {"Security engineers. cryptographers. computer arc in almost 

agreement that any technology that provides a go\·emmt:-nt back door also carries a significant risk of weakening 

security in unexpected ways.''); Bruce Schneier, "Stop the hysteria over "CV"Vcom. October 3 L 

2014. m·ailah/e ("You 

can't build a backdoor protects cybcrcr.iminals, 

vulnerable to CJ:\'Csdropping by any of 

them, or you're secure from eavesdropping from all of them.''); SteYen M. Bcllovin, ·'Apple's '\Varrant-Proof 

Encryption," SA1Biog. September 23,2014, m·ai/ahle ar .t~i!I:.~ .. ,:.'~~:\~~:~.~-~~Jc::.l.mltbj?.:~~~'-tU_"::__8llhJlb!g_ _ _f.QD.D.:~~L (""[T]hc 

existence of the code to implement [a] back door is itself a danger. Code is oflen buggy and insecure; the more code 

a S)'Stem has, the less likely it is to be secure. This is an argument that has been made many times in this very 

context. [including in] debales over the Clipper Chip and key escrow in ihc 1990s .... ); Tim Greene ... RSA: Panel 

calls i\SA access lo a bad idea:· Ncflrork World, April22. 2015, m·ailab/c at 

(Quoting esteemed cryplologists and Crypto \Var veterans Ron Rivest, co-founder and \Vhitfield 

Diffie. one of the inYcntors of public key cryptography. raising doubts about any ne\v key escrow scheme. "'"This is 

going to be a house of many doors and many parties and it's just not going to work,' RiYcst ·-). 3 Se(', e.g .. Matthew Green, '"If ow do we build encryption baekdoors?"', A Few on 

16, 2015, arailahlc 

C'J.l'Jll>i.~,m:t'<l!"":IQ!JdDJ.l1..1; Joseph Lorenzo 

JJemnrnuT& Technology, April20, 2015, m·ailable 

See Schneier, supra note 12, for a concise summary of known instmces of surveillance backdoors being exploited 

for purposes other than lawful surveillance: ''Back-door access built for the good is routinely used by the bad 

guys. In 2005. some ll.flkt)own_g_r_Ql!_Q surreptitiously used the '"''• lllHrHeJ·celm ''''"""'""" 

phone system. The happened in Italy in 2006. In 20 l 0, intercept system 

Google had put into Gmai1 to comply with U.S. government surveillance requests. Back doors in our cell phone 

system are currently being exploited by the )~ B f and unl-\J)OWll others.·· 

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crypto.,, That it's like drilling a hole in the windshield." 15 Indeed, when the White House 

cybersecurity coordinator was asked last week if he could name a single respected technical 

expert who believed it was possible, he had no answer. 16 Even one of the government's own top 

experts, the chief cybersecurity adviser to the Commerce Depmimcnt's National Institute of 

Standards and Technologies, has publicly concluded that when it comes to designing a secure 

'key escrow' system where the government has access to a master decryption key that can't be 

subverted by other attackers, "[!]here's no way to do this where you don't have unintentional 

vulnerabilities." 17 Put another way, there is no way to build a "secure golden key" that can only 

be used by the government, like that which was suggested in a recent Washington Post editorial 

that was immediately and roundly criticized by the, Internet community. 18 This fact was 

conclusively demonstrated in the 90s,19 and it is equally true today20 However, even assuming 

such a "golden key" system were feasible ... 

l." Andrea Peterson, "Here's how the clash between the NSA Director and a senior Yahoo executive went dmvn," 

The Post, February 23.2015, cn'ailable at 

l\.·1enn, "\\.'hite House seeks Silicon Valley help on strong yet breakable encryption." Rcu!crs, April 21. 

2015, m·ailable at http: 

Barton ··As encryption spreads, U.S. 

security:· The Washington Post, AprillO. 2015, m·ailablc a/ Dlll~-'"'-'',\\ast:IIJl!cl.c>np_ti~l.<:;.O.I}! .. ""''-'"·"""'""''a: 

that pn.J\ cd \ ulnnabk UlH_k·r :.:crutiny or \\ Cfl' ultim~11cly to 

under rl..';d-\\ c•rld nmJition~.--). See also Video: Surveillance in Cyberspace 

Actors at the 2015 Idaho Law Review (Idaho Law Review), m·ailablc at 

(Professor Ed Felten explaining difflcult questions and serious 

proposals). 

The dcfinitiYe work on this from the 90s is a technical report coordinated by the Center for Democracy & 

Technology and authored by nearly a dozen of the top cryptographers and computer scientists of the era, See Hal 

Abelson eta/, "The Risks of Key Key Escrow, and Trusted Third-Party Encryption," May 27, 1997, 

at 

SeYeral examples from this decade 

encryption keys. See, e.g .. 

Times, June 3, 20 II, m·ailable (theft of data 

about "SccurlD'" cryptographic tokens from security vendor RSA enabled hackers to breach the network of 

5 
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3. It would cost the American economy untold billions of dollars. Experts estimated during 

the original Crypto Wars that building and operating the kind of key escrow infrastructure 

desired by the govcmment would have cost the government and industry many billions of 

dollars. 21 Since then, the number of computer and Internet users, and computer and Intemct 

devices, has grown exponentially; so too has the complexity and cost of such a scheme to give 

the government the universal decryption capability it apparently desircs.c 2 

That's not even counting the many more billions of dollars that would be lost as consumers 

worldwide lost contidencc in the security of American computing products and online services. 

American technology companies, which currently dominate the global market, have already been 

wrestling with diminished consumer trust in the wake of revelations about the scope of the 

National Security Agency's programs, a loss of trust already predicted to cost our economy 

billions of dollars. 23 Any new requirement that those companies guarantee that the U.S. 

government have the technical capability to decrypt their users' data would give foreign usersincluding major institutional clients such as foreign corporations and governments that especially 

rely on the security of those products and services-even more incentive to avoid American 

products and tum to foreign competitors. It would also likely diminish trust in the security of 

digital technology and the Intemet overall, which would slow future growth of the Internet and 

Internet-enabled commerce and threaten the primary economic engine of the 21" century. 

To put it bluntly, foreign customers will not want to buy or usc online services, hardware 

products, software products or any other infonnation systems that have been explicitly designed 

to facilitate backdoor access for the FBI or the NSA. 24 Nor will many American users, for that 

Lockheed, the Unikd States' largest defense contractor, and put at risk th~ security ofRSA's 25.000 customers. 

including Fortune 500 companies and government agencies around the world); Dominic Rushe, ·'Sim card database 

hack US and lJK spies access to billions of ccllphones," The Guardian, February 19, 2015, m·ailable at 

~~~Ji,;~;~;~~;;;;~~~~~~~~ITr~~~~~c~:~~~;~!~5j!;~~~:~~::~~j~';;;~:~;;;!~~~~:;;.;~:s~~.;~ (British iT agency encryption 

keys giving it the capability to decrypt telephone and lnt~mct communications made by the billions of cellphoncs 

Gemalto cards). 

S'ee Abelson ct aJ., supra note 19 at 13~ 16 (describing potentially billions of dollars of direct and Jndircct costs to 

"deploy a global key recovery infrastructure"). 22 High costs associated with creating and maintaining such a complex key escrmv system overhead of operating 

the product design and testing costs, which must be rigorous and extensive to assure the highest level of 

consistent with key escrow: and costs for all users \\'ho arc required by la\v to comply with key escrO\v 

requirements. This also includes the potentially irreparable costs to users in the likely event that their 

~c"""''"""'"""'" are compromised. Swire and Ahmad, supra note 10. 

S'ee. e.g, Danielle Kehl, Kevin Bankston, Greene, & Robert Morgus, SuiTei!lance Costs: The .VSA 's 

impact on the Economy, interne! Fret!dom & (2014), 

Vagle and Blaze, supra note 12 ("As Apple, Googlc, and other similarly situated companies point out, why would 

customers pay for and use such a system? Companies arc now 3\'l.'akcning to the fact that. in a post-Snmvdcn world, 

customers arc becoming more san y about security issues, and \Viii discern between products on this basis:·). 

6 
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matter. Instead, they will tum to more secure products that arc available for purchase or for free 

download from sources outside of the United States, which is a major reason why ... 

4. It would not succeed at keeping bad actors from using unbreakable encryption. 

Encryption technology and the ability to create it was already becoming widespread during the 

original Crypto Wars.25 and at this point is nearly ubiquitous. And, as was true then, much of that 

technology is free and open source. For example, there arc the open source versions ofPGP 

encryption software that are still the most popular end-to-end email encryption solution, the 

OpcnSSL software library that has long been used to encrypt vast amounts of every-day web 

traffic, open source disk encryption programs like TrueCrypt, the open source Off-The-Record 

instant messaging encryption protocol used by a wide variety ofiM clients, and the TOR onion 

routing software originally developed by the Naval Research Laboratory that is now widely used 

to circumvent oppressive govemmcnts' censorship regimes and allow for anonymous online 

browsing26 A government mandate prohibiting U.S. companies from offering products or 

services with unbreakable encryption is of little use when foreign companies can and \'v"ill offer 

more secure products and services, and when an independent coder anywhere on the planet has 

the resources to create and distribute free tools for encrypting your communications or the data 

stored on your mobile devices. As fom1er Homeland Security Secretary Michael Chertoff 

recently put it, "[T]hat genie is not going back in the bottlc."27 

The result is that a U.S. government-mandated backdoor into the encrypted products and services 

of U.S. companies, while undem1ining the information security of millions of ordinary 

Americans and the economic security of the American tech industry, would do little to prevent 

bad actors from taking advantage of strong encryption. Or, as PGP's inventor Phil Zimmem1an 

famously said in the 90s: "If privacy is outlawed, only outlaws will have privacy.'' ~ Not only is 

such a mandate likely to be ineffective, but also ... 

5. It's unnecessary in order to keep us safe from criminals-but strong encryption is. So 

far. the opponents of strong device encryption have failed to offer any compelling examples 

where such encryption seriously hindered a criminal investigation or prosecution. FBJ Director 

Comcy did offer, in his October speech on the subject, four examples of cases where cellphonederived evidence was supposedly critical to a solving a crime, but those examples were quickly 

debunked by the press29 During the same event, Director Comey came up empty when asked for 

25A comprehensive rcp01i from the Cyberspace Policy Institute at George Washington University in June 1999 noted 

that there were over 500 foreign companies manufacturing or distributing foreign Cl)'ptographic products in nearly 

70 countries outside the United States. Lance J. Hoffman ct aL ''Growing Dcn~lopmcnt of Foreign Encryption 

ProdtJcts in the Face of U.S. Export Regulations," Policy Institute at the George Washington School of 

Engineering and Applied Science, June 10, 1999. 

"'Sec The OpcnPGP Alliance at ll.l!.i':_,\'-''!2\:,Ql":!ill:ill.l,ODL· 

TrueCrypt (once popular but now ms•:onum.tm 

The-Record Messaging at !l!l.DZc.Qlf,C~):J.lflclJcUll~C_s.ca 

"Jason Kocblcr. 'The Man Who 

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a real-world example where encryption actually stymied an investigation30 And in March he 

admitted to the House Appropriations Committee in March that he wasn't in a position to offer 

"a percentage or number"' of cases affected by encrypted devices." Meanwhile, in the realm of 

law enforcement wiretaps of phone and lntcmct communications. where numbers arc available 

via annual reports by the Administrative Office of the U.S. Courts, the number of cases where 

encryption has posed a problem is miniscule. Specifically, according to the report issued in 2014. 

of the over 3,576 wiretaps conducted by federal and state law enforcement in 2013, encryption 

was encountered in only 41 cases, and the police were able to obtain the plain text of the 

encrypted communications in 32 of those 41 cases. 32 So, strong encryption posed a problem in 

only nine of 3.500 wiretaps. and that was a record high. 

Indeed, rather than "going dark," there's good reason to believe that thanks to the growing role 

played by digital technology in nearly all aspects of our lives--and especially thanks to the 

prevalence of smartphones-law enforcement is in the midst of a "golden age of surveillance·· 

where they can access more data about what we say, where we go, what we do, and with whom 

we associate and communicate than ever before. D Indeed, as a number of law enforcement and 

intelligence officials have acknowledged, metadata about private communications can be just as 

rcvcaiing if not more revealing than the contents of those messages themselves 34 This golden 

with the identification or capture of the culprits. and encryption would not remotely have been a factor."); JacL 

Ci ilium and Eric Tuckl.'r. .. Dll FBI":-, EA<:lmpk·:-. Och)bc-r 17 . .20 l -+. 

m'ailahle 

one case. text messages on a phone helped secur\! a ''three 

are not so cut and dry. They arc cases in which the were tipped 

-or even solved the crime through means other than examining data they took from yictims or suspects.''). 

Another example offered in an op-ed by a former FBI officiaL of a case where encryption would have purportedly 

prevented the rescue of a kidnapping victim, had to be corrected when it proved to be false. See Ronald T. Hosko, 

"'Apple and Google's new rules \Vill make law enforcement'sjob much harder,"' The Wa:drington Posr. 

23, 2014, available 

note: This 

story stated that Apple 

ability to rescue the kidnap victim in \Vake N.C. This is not the case. The piece has been corrected."). 

"Sec C-SPAN, Flustered When Asked For Actual Real-Live 

,;chntin<>lnHi,·e Offlce ofthe U.S. Courts. "Wiretap Report 2013."' amilal>le at 

fl.l''JL::.J'..~~;_l(lll_fls_,goy~t:!!JS·t1Cs \Vncla[l_R_cp0r·1' .. ''c:!l-c:<''l'::cCl'<!rt-::_(lJ3,asp~<_"sa,9 see also Andy Greenberg, 

2. 2014. m·ailable at 

l'~;;;i~,;~,~;l~;,~~';;;~~l;~~;l;;~p,;;J;~~;;;=-;;;-~~![~~~~i,,~;i~~'~;~~~'~;;l;;_;ctj~;;:';~;;;~;~ *~;;;,2;T,~~;~~ ("'So the c they warned us about in the 90's come to 

Blaze noted drily on tw·ittcr. 'Strong Cr)ipto in a whopping 

'·Consider three area.'-. where la\v cnforcctnent has far greater capnbil!ties than ever before: 

information: (2) infonnation about contacts and confederates: and (3) an array of new databases that create 'digital 

dossiers' about individuuls' lives,·· Peter Swire. Dark' Versus a 'Golden Age for Surveillance,"' Centerfor 

IJPmn<"'"'""'" & I'\ovember 28, 2011, 

Kevin S. Bankston & Ashkan 

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age of surveillance promises to get even brighter ror law enforcement with the rise of the socalled "Internet of Things", where fine-grained data about everything from our electricity 

consumption to the contents of our refrigerators to the behavior of our medical implants will be 

available to prosecutors. 

Meanwhile, much of the data stored on the encrypted Apple and Android ccllphoncs that have 

caused so much concern arc also backed up to Apple and Google servers in the Intcmet "cloud" 

and available via legal process served on those companies. 36 That which is not available via the 

cloud will in many cases be obtainable simply by having a court compel the suspect to hand over 

the data or else face jail time for contcmpt37 And for cases where notice to the suspect is not 

desirable. encrypted data or communications that cannot be obtained from the cloud might even 

be obtained by government investigators secretly hacking into suspects' devices from afar over 

the Jntemet, a law enforcement technique that is worrisomely on the rise despite constitutional 38 concerns. 

With few examples of encryption posing a serious challenge for law enforcement, and a wide 

variety of other ways for law enforcement to obtain a wide variety of infom1ation from or about 

suspects, the necessity of encryption backdoors to better combat crime is unclear at best What is 

absolutely clear, however, is a fact that Representative Bob Goodlattc attested to back in 1997: 

Strong encryption prevel1/s crime. Just as dead-bolt locks and alarm systems help people 

protect their homes against intruders, thereby assisting law enforcement in preventing 

crime, strong encryption allows people to protect their digital communications and 

computer systems against criminal hackers and computer thieves. The blue-ribbon 

National Research Council said it best, concluding that strong encryption supports both 

law enforcement efforts and our national security, while protecting the proprietary 

information of U.S. busincsscs39 · 

arc as humJn beings_-, Alan Rusbridgcr, ''The Snowden Leaks and the Public.'' Xew York Rn'ielr clBooks, 

November 21, 2013, m•at1ab!e at 

Former 1\SA director Michael Hayden agrees: comment was] 

on metadata." David Cok. "We Kill Pcopk Based on Mctadata,'' .'Ve•1· 

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It is even more true now than it was nearly twenty years ago: encryption makes us all safer,40 and 

default encryption on smartphones especially so. There is a growing epidemic of smartphonc 

theft, with 3.1 million stolen in the U.S. in 2013. nearly double the number of smartphones stolen 

in 2012. 41 The vast amount of personal information on those devices makes them especially 

attractive targets for criminals aiming to commit identify theft or other crimes of fraud, or even 

to commit violent crimes or further acts of theft against the phone's owner. Yet over a third of 

consumers fail to activate even the simplest security mechanisms on their mobile deviccs 42 That 

is 1vhy the FBI itself used to advise consumers with smartphones to turn their encryp,tion onuntil abruptly changing course and deleting that advice from its website last month. ·' By taking 

this step for their customers and turning on encryption by default, mobile operating system 

vendors have completely eliminated the risk of those crimes occurring, significantly discouraged 

thieves from bothering to steal smartphones in the first place, and ensured that those phones' 

contents will remain secure even if they are stolen. A necessary consequence, of course, is that 

the contents will also remain secure if the phone is seized by law enforcement. 

6. It would undermine and turn on its head the Fourth Amendment right to be secure in 

our papers and effects. 

The Fourth Amendment gives individuals the right to be secure in their papers and effects, 

prohibiting unreasonable searches and seizures and requiring that any warrant authorizing such a 

govcmment invasion be issued by a court based on a showing of probable causc.44 As indicated 

by recent Supreme Court cases, the need for vigorous enforcement of that right has become even 

more acute in the context of powerful digital technologies. Most recently, a unanimous Supreme 

Court in the case of Riley v. California decided to require warrants for the search of a cellphone 

in the possession of an arrestee, based on the unprecedented amount of private data that may be 

stored on such devices even though such searches incident to arrest have traditionally been 

allowed without a warrant.45 As the Court explained, many cell phones "are in fact 

minicomputers that also happen to have the capacity to be used as a telephone. They could just as 

easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, 

43 The FBI previously included the following recommendation in a consumer on its website: 

''Depending on the type of phone. the operating system may have encryption This can be used to protect 

th~ user's personal data in the case of loss or theft.'' See Mike Masnick, '·FBI Quietly Removes Recommendation To 

Encrypt Your Phone ... As FBI Director Warns How Will Lead To Tears," Techdirt, March 26.2015, 

m ·a i lab! e " aa~t 1 :~;.i;~~l~",:'~\' ~\:.~z~;~~~~.~~~~~~;~;,"~~~~';.:~~~~,;',~;.tf ;~~~·:,j'~~~ ~~f'·~~;~;;~,':~;:~':';~~,;~~.'~~~;')~ still 

to secure persons. houses, papers, and effects, against unreasonable searches 

violated, and no \Varrants shall issue. but upon probable cause, supported by Oath or 

affirmation. and particularly describing the place to be searched, and the persons or things to be seized.'" U.S. Con st. 

IV. 

, .. California, 134 S. Ct. 2473,2485 (U.S. 20!4). 

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albums, televisions, maps, or ncwspapers."46 These devices, with "immense storage capacity," 

can hold "every picture [their users] have taken, or every book or article they have read," and 

"even the most basic phones that sell for less than S20 might hold photographs, picture 

messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, 

and so on.''47 Ultimately, as the Supreme Court explicitly held, the search of a modern electronic 

device such as a smartphone or a computer is more privacy invasive than even "the most 

exhaustive search of a house. "

4

' 

As the Court concluded in Riley, "We cannot deny that our decision today will have an impact on 

the ability oflaw enforcement to combat crime. Cell phones have become important tools in 

facilitating coordination and communication among members of criminal enteqxises, and can 

provide valuable incriminating information about dangerous criminals. Privacy comes at a 

cost."49 The court did not pretend that requiring warrants for searches of cellphones seized 

incident to arrest did not risk diminishing law enforcement's effectiveness-it simply recognized 

that allowing such warrantless searches posed an even greater risk to our Fourth Amendment 

rights considering the scope of data available on those phones. The court made a similar calculus 

in the 2012 case of U.S. v. Jones when it decided that the comprehensive long-tcn11 tracking of a 

car's movements on public roads using GPS technology constituted a search under the Fourth 

Amendment. even though tracking that only reveals information that vmuld have been visible 

from public space would not traditionally be considered to violate a suspect's Fourth 

Amendment-based reasonable expectation of privacy. 50 Both the Jones and Rile.\· cases can be 

viewed as the Court's attempt to compensate for the sharp increase in the government's 

surveillance capabilities thanks to digital technology by ratcheting up legal protections against 

government searches. 5

1 The use of encryption on cell phones can be seen as a similar means of 

compensating for the govemment's newfound technical powers during this "golden age of 

surveillance," using technology instead of the law to help restore the balance between 

government power and individual power to something closer to what the Founding Fathers 

intended. 

Encryption opponents would push in the other direction and Hip our Fourth Amendment rights 

on their head by instead casting the Fourth Amendment as a right of the govemmcnt-a right to 

dictate that the contours of the physical and digital worlds be redesigned to facilitate even easier 

surveillancc52 But there is no precedent for such a reading of the Fourth Amendment. As former 

computer crime prosecutor Marc Zwillinger recently put it, 

"' Jd. at 2489. 

"!d 

at 2491. 

at 2493. 0 See United Stales\'. Jones. 132 S. Ct. 945,955-57 (2012) (Sotomayor. J .. concurring), 957-963 (A lito, J., 

J.. Breyer, Land Kagan, J.,. concurring). 

Sec genera/(r Bankston & Soltani, supra note 33. 2 James Comcy, "Going Dark: :\rc Technology, Privacy, and Public Safety on a Col1ision Course?" Remarks at the 

Brookings Institution, Octoher 16.2014, arailable 

(c,g., encryption is equivalent of a closet that can't opened. 

A my question is, at what cost?"); Vance, s11pra note 3 (Vance, the :V1anhattan 

District Attorney. describing how Apple and Google's new features "'push mobile devices beyond the reach of 

\varrants and thus beyond the reach of government law enforcement. This would make mobile devices different from 

e\erything else. Even bank security boxes-- the "gold standard'' of the pre-digital age~~- ha\·e always been 

searchable pursuant to a judicial warrant ... ). 

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I don't believe that law enforcement has an absolute right to gain access to every way in 

which two people may choose to communicate ... And I don't think our Founding Fathers 

would think so, either. The fact that the Constitution offers a process for obtaining a 

search warrant where there is probable cause is not support for the notion that it should be 

illegal to make an unbreakable lock. These are two distinct concepts53 

Zwillinger's comments echoed those made by Senator John Ashcroft during the original Crypto 

\Vars: "There is a concern that the lntemct could be used to commit crimes and that advanced 

encryption could disguise such activity. However, we do not provide the government with phone 

jacks outside our homes for unlimited wiretaps. Why, then, should we grant government the 

Orwellian capability to listen at will and in real time to our communications across the Web~"54 

Or. as a more recent commentator put it: 

This argument [that encryption foils the police's right to obtain evidence with a search 

warrant] misunderstands the role of the search warrant. A search warrant allows police, 

with a judge's approval, to do something they're not nom1ally allowed to do. It's an 

instrument of permission, not compulsion. If the cops get a wanant to search your house, 

you're obliged to do nothing except stay out of their way. You're not compelled to dump 

your underwear drawers onto your dining room table and slash open your mattress for 

them. And you're not placing yourself 'above the law' if you have a steel-reinforced door 

that doesn't yield to a battering ram 5 5 

The law has never prohibited the creation of unbreakable locks, nor required us to hand our keys 

over to the government just in case it might need them for an investigation, whether those keys 

arc physical or digital. Indeed, the Founders themselves used ciphers to communicate with each 

othcr,'6 and presumably would have viewed a demand that they hand over the key to their 

enc1yption scheme as abhorrent to their rights-not only their Fourth Amendment right against 

government intrusion but also their First Amendment right to speak and associate both freely and 

anonymously. 

7, It would threaten First Amendment rights here and free expression around the world, 

Repeated court challenges to export controls on encryption during the Crypto Wars illustrate 

how any attempt by the government to limit the distribution of encryption software code, which 

is itself speech, would raise serious First Amendment concerns. As one fedeml district court held 

when considering a First Amendment challenge to 90s-era enc1yption export controls, 

5 Sec Nakashima and Gellman, supra note 17. 5

-.l John Ashcroft. Keep Big Brot!u?r:\· Hands q[lthe Internet ( 1997), m·ai!able at 

Used Encryption," Laissc= Fa ire. September L 2012. ami/able 'l';;.~~;~~~;,;;J~;~: c_rSl'n.:~~S'.cl::''!l~D:f'll<2fL (describing how James Madison, Thomas Jefferson and James Monroe 

code to protect U.S. government reading their letters). The Jefferson's \Vheel Cipher immune 

from attacks for over I 50 ~{cars, gaining Thomas JdTerson the "Founder of American Cryptography." 

Alexander Stanoycvitch. Introducrionto Cr}ptograpl~r H'ith Foundations and Computer 

fmplemenrations 107 (201 0). 

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This court can lind no meaningful diflcrence between computer language ... and Gcnnan 

or French. All participate in a complex system of understood meanings within specific 

communities {in this case, that of programmers and mathematicians} .... Contrary to 

defendants' suggestion, the functionality of language docs not make it any less like 

speech .... Instructions, do-it-yourself manuals, recipes, eyen technical information about 

hydrogen bomb construction, are often purely functional; they are also speech. 57 

The Ninth Circuit Court of Appeals agreed, holding that the challenged encryption export 

regulations constituted a prior restraint on speech that offends the First Amendment. '

8 Therefore, 

not only would attempting to police the distribution of strong encryption code inside the United 

States require an endless and ineffective game ofinternet whack-a-mole as old and new 

encryption code proliferated across cyberspace, but the extensive censorship that would be 

necessary to fight that losing battle would also likely violate the freedom of speech. Similarly, a 

legal regime that forced indiYiduals to cede their private encryption keys to the government or to 

their communications providers tor law enforcement purposes would also raise novel issues of 

compelled speech under the First Amendment. 

However, the free speech impact of a mandate against unbreakable encryption and in favor of 

backdoors for government would reach far beyond just the communication of encryption code, 

and chill a wide variety of online expression. When individuals believe that they may be under 

surveillance, there is a "chilling effect" that can curb free speech and the free f1ow of information 

online. 59 If individuals must assume that their online communications arc not secure but may 

instead be acquired by the U.S. govemment or by anyone else who might exploit an encryption 

backdoor, they will be much less willing to communicate freely. By contrast, encouraging the 

availability of strong encryption free of surveillance backdoors can enable free expression both 

in the United States and around the world,60 including by stymieing the censorship and 

surveillance efforts of governments with less respect for human rights than our own. 

8, It would encoumge countries with poor human rights records to demand backdoor 

access of their own, 

The govcmments of countries like China, 61 India, 62 and the United Arab Emirates63 have 

proposed a variety of measures that would require companies to implement key escrow systems 

Bernstein v. L'.S. Dept. 1426, 1431 (N.D. Cal. 1996). 

See Bemstcin v. 176 f.3d 1132 (9th Cir. 1999). 

A. Michael Froomkin, The the Clipper Chip, and the Constitution, 143 U. 

Penn. L. Rc\'. 709. 815-822 ( 1995) on Speech'' and "Anonymity and the Freedom of 

Association'.); Human Rights Liberties Union. With Liher~r to Afonitor Air Hmt· 

Large-Scale US Sun·cillance is Harming Journalism. Law, and American Democracy (2014). al'ailahle at 

Kehl et aL supra note 4. 

oi In February 2015, China put fOrth a proposal that would require tech companies operating in the countryincluding American companies- to provide them with copies of encryption keys and other means to defeat security 

measures. The United States government sent a letter objecting to the mea~ure, and U.S. Trade Represcntati\'C 

Michael Froman said that "[t]hc Administration is working to have China walk back from these 

troubling regulations." Quoted in Lorenzo ··The United States Is That China \Vants 

Backdoors, Too," Afotherboard, february 27,2015, arailable at 

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or other forms ofbackdoors or stop doing business in those countries, proposals that the United 

States government has criticized6 Yet how can the United States credibly criticize, for example, 

the Chinese govemment for proposing an anti-terrorism bill that would require U.S. companies 

to band over their encryption keys, if we impose a similar requirement here at home'? And how 

arc U.S. companies to argue that they cannot implement such requirements and hand over the 

keys to foreign governments-even those with a history of human rights abuses-if they have 

already had to do so for the U.S. government~ 

As Marc Zwillinger has pointed out, if the U.S. mandates backdoor access to encrypted data, 

"multinational companies will not be able to refuse foreign governments that demand [the same] 

access. Governments could threaten financial sanctions, asset seizures, imprisonment of 

employees and prohibition against a company's services in their countries. Consider China, 

where U.S. companies must comply with government demands in order to do business.'' 65 Such 

a result would be particularly ironic considering the U.S.'s foreign policy goal of promoting 

Internet Freedom worldwide and in China especially, including the promotion of encryptionbased tools to protect privacy and evade ccnsorship60 

Internet Freedom begins at home, and a failure by the United States to protect Americans' ability 

to encrypt their data will undenninc the right to encrypt and therefore human rights around the 

world. 67 The U.S. gm·ernment supports the use of strong encryption abroad as part of our foreign 

policy objectives, and it should support the same for Americans here in the United States. This is 

especially tme considering that. .. 

Arab Emir<1tcs, citing encryption concerns, threatened to suspend Blackberry n1obile services 

(including email and text because of the encryption Blackberry used. (Barry Meier and Robert F. 

\Vorth, "Emirates to Cut Data of BlackBerry,'' York Times, August L 2010, al'ailab!e at 

I think would ironically 

hurt the Chinese economy long term because 1 don't think there is any or European finn. any 

international finn. that could credibly get away with that wholesale turning over of data. personal data, over to a 

govemmcnt. 'l 65 See Marc Z\villingcr, '"Should La\'.' Enforcement Have the Ability to Access Encrypted Communications? I\:0: It 

Violates Our Rights·~ Without "The Wall Street Journal, April 19.2015, available at 

:'\mcrican government overS 125 million in programs to support Internet freedom 

abroad, including '"work to support counter-censorship and secure communications technology,"' much of which 

relies on encryption. Scott Busby. "'10 Things You Need to Know About U.S. Support for lntemet Freedom:· liP 

Digital, 29,2014, available at 

it must race an inconvenient truth: 

aspects of internet regulation and its laws can and will have an effect far 

beyond American borders.") 

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9. An overwhelming majority of the House of Representatives and the President's own 

hand-picked advisors have ah·eady rejected the idea. 

Echoing the House's overwhelming support for the SAFE Act during the Crypto Wars of the 

90s, an overwhelming and bipartisan majority of the House of Representatives already rejected 

the idea of encryption backdoors just last year. oR That's when. by a vote of 293 to 123,69 the 

House approved the Sensenbrenner-Massie-Lofgrcn amendment to the Defense Appropriations 

Act, H.R. 4870. That amendment. responding to reports of that the NSA had worked to insert 

surveillance backdoors into a variety ofhardvvare and software products, would have prohibited 

the NSA or the CIA from using any funds "to mandate or request that a person ... alter its product 

or service to permit the electronic surveillance ... of any user of said product or service for said 

agcncies."70 Although the amendment, which was supported by a quickly organized activist 

campaign71 and a broad coalition oflnternet com~anies and civil society organizations like 

Google and the American Civil Liberties Union,L did not make it into the final ·'CRomnibus" 

spen7ling bil1,73 it was still a potent indicator that Congress is skeptical of U.S. govemment 

efforts that would weaken the security of American hardware and software products. 

Equally skeptical of encryption backdoors were the five experts hand-picked by the President to 

review the NSA 's surveillance activities. Echoing the conclusions of the National Academics in 

their groundbrcaking study from 1997, the final report of the President's Review Group on 

Intelligence and Communications Technologies included this strongly worded recommendation 

prompted by its conclusion that strong enc1yption was necessary to the United States' national 

and economic security: 

R_~~:_omm~ndation 1~ 

We recommend that, regarding encryption, the US Government should: 

(1) fully support and not undem1ine efforts to create encryption standards; 

(2) not in any way subvert, undermine, weaken, or make vulnerable generally available 

commercial software; and 

(3) increase the use of encryption and urge US companies to do so, in order to better 

protect data in transit, at rest, in the cloud, and in other storagc74 

'•' Ellen '-:akashima and Andrea Peterson, "House votes to curb NSA "backdoor·· U.S. data searches.·· The 

Washinrzton Post, June 20,2014, a-..·aifab/e 

See "Shut the l\SA 's Backdoor to the Internet, .. m·ai/ahle a! hjtQS_~l.!..w..!.h_~:?_b;!_ckd(h1f.llC(. 

~·~See "OTI Joins \Vith Privacy Groups and Tech Companies To Tell Congress: End the I\: SA's Back door Access to 

Internet Users' Data." j\"eH' America's Open Technologr Institute, June 18, 2014, m·ailable at 

Sun·eillancc Reform Had Bipm1isan Support. I! failed Anyway.·' Slate, December 

in a Changing \Vorld: Report and Recommendations of the President's Re\·iew Group on 

Intelligence and Communications Technologies," December 12,2013. at 36, awlilahle at 

""''"'''"''·g''' ?ite~"dcfauH 

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Therefore, not only the House of Representatives but a blue-ribbon panel of expc11s including a 

fom1cr CIA Director and the White House's fom1er anti-terrorism czar, have already concluded: 

mandating or even requesting the insertion of encryption backdoors into U.S. companies' 

products and services is a bad idea. As demonstrated by their support for the SensenbrcnnerMassie-Lofgren amendment, the Internet industry and the Internet activists agree, which is 

why ... 

10. It would be vigorously opposed by a unified Internet community. 

Decades before the massive online advocacy campaign that stopped the SOPA and PIPA 

copyright bills in 2012/5 The Crypto Wars--and, in particular, the battle against the Clipper 

Chip--represented the Internet community's first major political engagement. And it was a 

rousing success. An unprecedented alliance ofintemet users, technologists, academics, the 

technology industry, and newly-emerging Internet rights advocacy organizations like the 

Electronic Frontier Foundation, the Center for Democracy and Technology, and the Electronic 

Privacy Infonnation Center, flexed its muscles for the first time and made a huge difference in 

the political process. They organized experts to speak on panels, testified before Congress, and 

circulated electronic petitions, including one that got over 50,000 signatures an extraordinary 

number in the early days oflnternet activism. 76 That Internet community, which won the first 

Crypto Wars two decades ago and more recently blocked SOPA and PIPA, has only grown 

larger and more vocal in the intervening years, and will certainly make its voice heard if another 

round ofCrypto Wars were to begin now. 

That conflict can be avoided, however. Especially considering all of the above arguments, many 

of which arc just as true if not morcso than they were twenty years ago, Congress can and should 

leave the idea of encryption hack doors in the dustbin of history where it belongs. Instead, 

policymakers should heed the lessons of the past and the advice of the President's Review Group 

by considering policies that will promote rather than undcm1inc the widespread use of strong 

encryption and thereby help guarantee a more secure and prosperous tuture for America. 

Thank you, and I welcome your questions on this important matter. 

For an in-depth discussion of the online organizing efforts and coordinated protest efforts that 

Online Piracy Act (SOPA) and PROTECT IP Act (PIP A) in2012. see !\!~arvin Ammori. On Inrernel 

Books: January 15. 2013). ami/able a/ iJ!iJ'.:: .. stJ.<c''l'.-i.'!'J!IIQrt!J<cJ.~L"c'"-'~l'c:l'.lg'J:l~1s..<c'l:FJ!:d!J'cj::JIC.,:9<.'nl::.l2l::.l1<;r:::,l:J::: 

Laura J. Gurak, Persuasion and Prh·acy in C)'berspace: The Online Protests on>r Lotus Jfarkerplace und rhe 

Clipper Chip 34 ( 1997). 

16 
43 

Mr. HURD. Thank you, Mr. Bankston. 

Mr. Potter, 5 minutes. 

STATEMENT OF JON POTTER 

Mr. POTTER. Thank you, Chairman Hurd, Ranking Member 

Kelly, members of the subcommittee. 

The 3-year-old App Developers Alliance includes more than 200 

companies and more than 35,000 individuals worldwide. Thank you 

for inviting me to speak today about the challenges app developers 

and our digital industry partners face if we are required to both 

protect privacy and provide Government with privacy-breaching 

back doors. 

First, it is important to highlight that protecting digital data 

through innovative security-based products is unquestionably good 

for businesses and consumers. In contrast, back doors make apps 

less secure and less trustworthy. 

Second, we must remember that data protection is not only about 

civil liberties and privacy. Encryption prevents cybercrime, which 

threatens fundamental economic interests that operate digitally, including health care, transportation, banking, and manufacturing. 

Encryption also prevents identity theft, which has been consumers’ 

top complaint to the Federal Trade Commission for 15 consecutive 

years. 

Third, nearly every digital business wants to be global, but mandatory government back doors may spark a trade war and imprison 

businesses in their home country. 

Fourth, Government’s conflicting messages about data protection 

create uncertainty about business expectations. Uncertainty creates 

risk, inhibits growth and job creation, and especially harms 

startups and small business. Handling customer data securely is 

an essential business commitment. Customers worldwide demand 

this. 

The media routinely report on data breaches and organized 

cybercrime. In response, and strongly encouraged by government 

agencies, including the FBI, developers have prioritized security. 

Given the magnitude of cybercrime and of government resources 

committed to fighting it, law enforcement criticism of encryption is 

perplexing. For several years law enforcement has routinely encouraged and even required encryption to protect sensitive data. 

Until recently, the FBI Web site recommended all organizations, 

quote, ‘‘encrypt data so the hacker can’t read it,’’ end quote. Quizzically, that recommendation was deleted from the FBI Web site 

just a few weeks ago. In contrast, the Federal Trade Commission 

continues to advise that, quote, ‘‘encryption is the key to securing 

personal information online.’’ 

Government mixed messages about privacy and security, slow 

product development, inhibit investors, worry customers, and harm 

all companies, especially startups. Every digital business opportunity is global. So the worldwide impact of mandatory government 

back doors is important. Unauthorized U.S. Government collection 

of global communications has created international outrage and 

backlash that is already costing American companies billions of dollars. 


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Mandating back doors that weaken encryption will exacerbate 

global distrust, and we should expect two reactions. First, international governments will demand their own security back doors. 

Second, U.S.-based apps will be deemed noncompliant with international privacy laws and be locked out of those markets. 

Developers will have to build many versions of apps to serve 

many markets with different law enforcement demands and privacy laws or risk being blocked from those markets. Building multiple versions of any product increases costs and runs contrary to 

every rule of digital business. 

Additionally, for good reason, some might be concerned if other 

countries or particular countries demand their own back doors. If 

markets become inaccessible to U.S. Apps because of mandatory 

back doors, then a digital trade war could break out. 

The App Developers Alliance membership is global because apps 

create jobs and deliver value globally. Closed markets may benefit 

some of our members in the short term, but the large majority of 

our members recognize that encryption and privacy trade war is 

substantially negative. 

Finally, the basics of technology, security, and privacy are critical. Any security opening creates vulnerability. You can’t build a 

back door that only the good guys can walk through. Hackers know 

it. The FBI knows it. And increasingly customers know it. 

Forced insecurity harms consumers in all industries, but it especially harms startups and small innovators because building back 

doors that are only slightly ajar is technically challenging and very 

expensive. 

There are situations that justify law enforcement access to our 

cell phones, to our apps, to the cloud, but there are many legal 

methods to accomplish this with court approval. Congress must insist that law enforcement and national security agencies utilize 

these processes. This is fundamental to America’s civilian government. 

In closing, please remember that encryption technologies are a 

market response to well-founded consumer, commercial, and government demand. When an app developer builds a thriving business model around security and consumer trust only to be told the 

FBI wants the product to be secure, but not too secure, this disrupts the marketplace. It is bad for innovation, for business, and 

for consumers. Thank you. 

[Prepared statement of Mr. Potter follows:] 


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Application 

Developers 

Alliance 

Data Protection, Law Enforcement and the Global Digital Economy 

Testimony of Jon Potter 

President, Application Developers Alliance 

U.S. House of Representatives 

Subcommittee on Information Technology 

Committee on Government Oversight and Reform 

Hearing on "Encryption Technology and Possible U.S. Policy Responses .. 

April29, 2015 

Chairman Hurd. Ranking Member Kelly and Members of the Subcommittee: 

Consumers want their personal data protected and businesses want their confidential data 

protected. Cyberhackers and data thieves are a constant threat. For several years law enforcement 

and consumer protection officials have encouraged the data protection marketplace and used 

enforcement tools to insist and demand that consumer data be protected. And responding 

appropriately to marketplace and government forces, app developers and our digital industry 

partners regularly provide and promote encryption tools to ensure that consumers· personal 

information and private communications remain private. 

Thank you for inviting me to share with you today the challenges that app developers and 

our digital industry pm1ncrs will face if we try to both protect privacy and provide privacybreaching back doors to the government. Others will testify about the technological impossibility 

of this task. I will speak to the resulting legal and investment uncertainty, consumer mistrust. and 

business turbulence. And when this hearing and the longer debate concludes. I urge Congress to 

remain committed to protecting Americans' privacy. empowering encryption solutions that can 

eradicate cyberhacking and data theft, and upholding traditional American values that require 

law enforcement to abide by the Constitution. 

The Application Developers Alliance (the "'Alliance'') was founded in January 2012 to 

support app developers as entrepreneurs, innovators, and creators. Alliance membership includes 

more than 200 companies and an additional 36,000 individuals. 

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On behalf of the app industry and our innovative, entrepreneurial members, Task you to 

consider the following: 

I. The Federal Trade Commission (FTC), State Attorneys General, the FBI, privacy 

advocates and consumers arc conect: protecting data while using it to build exciting new 

products and services is unquestionably good for businesses and consumers. The entire 

app ecosystem is committed to both data innovation and data protection. 

2. By challenging the use of encryption and sending a conflicting message about data 

protection, law enforcement is introducing doubt about what is expected or perhaps 

required of app developers and digital businesses. This creates uncertainty for all, but 

especially for risk-averse, resource-constrained stanups and small innovators. Investors 

and customers often flee from uncer1ainty, and though talented app developers can code 

virtually anything, they should not have to choose between conflicting government 

demands -particularly of the gravity of privacy and data security. 

3. The app marketplace is international and nearly every app wants to be global. If apps are 

required to provide back doors to the U.S. government, then many other governments 

will require their own access key or their own back doors, and still other governments 

will cite these back doors as evidence of non-compliance with their national privacy laws. 

Instead of enjoying global digital opportunities, apps will be buffeted by conflicting laws 

that force unpleasant choices while imposing financial and legal risk. App developers 

and their customers will have to choose between compliance and market access. 

4. Privacy-breaching back doors make apps inherently less secure and less trustworthy. By 

providing access to one or more governments, the developer is creating a vulnerability 

that can be exploited by hackers and thieves. 

5. For 15 consecutive years, identity theft has been the #I consumer complaint to the FTC. 

Data protection prevents cybercrime and identity theft, and encryption is the best data 

protection tool we know. Encryption proponents are not simply favoring privacy and civil 

liberties, we also favor crime prevention- the essential result of strong data protection. 

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Tod:~y's J>rLv.AQCY~.Lm~ Enfgr~_em~utQ~h~t~;__i~l'l<lL~~ Bu_tJthl>iffet:_eJ!j 

Like many policy debates spawned by technological advances, today's encryption debate 

is like a new cover version of an old song. America's privacy vs.law enforcement debate really 

began in the 1700s. when colonists resisted British soldiers who were permitted unfettered access 

to homes, businesses, and property. The Fourth Amendment- prohibiting unreasonable searches 

and seizures- is the direct result of colonists' umbrage and is the foundation of 200 years of 

America· s civilian government. 

More than 200 yems after the Bill of Rights was ratified, innovators were building and 

commercializing the first wave of digital networks and privacy-focused companies were 

deploying the first generation of encryption technologies. At that time America· s national 

security and law enforcement agencies expressed urgent concern about hostile foreign entities 

having access to that era's best encryption technology. In response, Congress approved the 

Communications Assistance for Law Enforcement Act ("CALEA'') and thereby required 

companies to build law enforcement back doors into broadband and Voice-Over-IP networks and 

related equipment. Despite guaranteeing law enforcement access to communications, Congress 

sought to ensure that legal process would be followed prior to that access being utilized. 

Moreover, Congress recognized the importance of data security and included explicit protection 

for encryption and encrypted communications. 

Today's debate is different, however, in part because circumstances have changed but 

also because law enforcement goals have transformed. 

One significant new circumstance is that businesses and consumers are more 

technologically savvy and are smm1er about data protection. Weekly repm1s about leading 

companies being hacked by organized cybercriminals, combined with so many consumers' 

personal experiences with identity theft, have propelled a market for security and encryption 

products. Identity theft has been the top consumer complaint to the FTC for fifteen consecutive 

years, and that trend is driving commercial activity. 

Consumers and businesses are also responding to recent revelations of widespread, 

untargeted, bulk surveillance by national security and law enforcement agencies. This activity, 

including seemingly willful disdain for proper legal process, has made citizens justifiably 

skeptical of law enforcement promises that unfettered access to digital networks will be utilized 

judiciously. International governments arc similarly provoked, and are requiring U.S. companies 

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to ensure that international consumers· (including businesses) data is protected. including against 

the U.S. government. 

Encryption is no longer a niche market. In 1994, there were few digital products and 

services and the market for encryption was small and specialized. But today on my phone I have 

a traditional mobile telephone service as well as Viber, WhatsApp, Google Hangouts and Skype. 

Each of these apps, the operating system on my phone, the software in each network access point 

and the networks themselves may incorporate encryption so that my private conversations 

remain private. This privacy is also critical for business and enterprise apps to ensure privacy of, 

for example, trade secrets, financial and health care data. 

As a result of this global focus on trust and security. many businesses are bundling 

encryption with products and services and are investing to improve those offerings. Venture 

capitalists and institutional investors are betting heavily on secure trust-based business models, 

while computer scientists are building better systems that provide more privacy and security 

value- developments eagerly awaited by businesses and consumers concerned about 

cyberthieves and identity theft. 

Yet, against this trend in favor of privacy and security, the FBI and law enforcement are 

attacking and seeking vulnerabilities in encryption technologies that Congress has explicitly 

protected. Law enforcement has an obvious and substantial interest in prosecuting crime and 

protecting people, but creating encryption vulnerabilities that will enable more identity theft and 

cause more consumer harm is not the right solution. 

The Implications of Today's Privacy_y. Law Enforcement Debate Are More Significal!t@Jl 

J;>j)tential~i\1uch More Seye~ 

Tn light of the ubiquity of digital products and services, and the magnitude of cybercrime 

and identity theft, it is perplexing that the FBI and law enforcement are disparaging the very 

large, substantial and determined encryption market that it has encouraged. This cffm1 cuts 

against prevailing wisdom and sends confusing, unhelpful suggestions to app developers, and to 

the publishers and enterprises that developers work with. 

First, developers whipsawed by the government's mixed messages may be paralyzed in 

their development cycle. As developers, investors and customers ask which government agency 

is in charge and whether data protection is really a government-approved value. the marketplace 

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can freeze up. If this uncertainty continues for too long then lawyers will have to help developers 

make a difficult and perhaps pyrrhic decision: which federal mandate should I follow and which 

one should I ignore? 

The Subcommittee should appreciate the magnitude of mixed messages developers have 

received. Over the course of several years virtually every government law enforcement and 

consumer protection agency has sung from the encryption and data protection hymnal. 

The FTC advises consumers that"[ c ]ncryption is the key to keeping your personal 

information secure online," and consistently requires app developers to use 

"reasonable" data security practices, including encryption, to protect consumers' 

information from hackers and data thieves. 

California Attorney General Kamala Harris recommends that app developers 

"transmit user data securely, using encryption" cmd endorses legislation "requiring 

encryption to protect personal information in transit.'' 

The FBI recommended organizations "encrypt data so the hacker can't read it." 

President Obama's Review Group on Intelligence and Communications Technologies 

recommended that the U.S. Government promote national security by ·'fully 

supporting and not undermining" encryption standards and generally available 

commercial encryption, and "supporting efforts to encourage the greater use of 

encryption technology for data in transit, at rest. in the cloud, and in storage." 

And in February President Obama personally called on industry to protect 

Americans' privacy and civil liberties, and proclaimed himself"a strong believer in 

strong encryption ... there's no scenario in which we don't want really strong 

encryption." 

Against this backdrop, industry responded. Hardware manufacturers are selling encrypted 

Blackphones. Companies such as Apple, Google and Yahoo are embedding encryption into their 

software and operating systems. Snapchat, Yik Yak and SpiderOak are offering encrypted 

consumer solutions, and industries such as banking, health care, transportation and 

manufacturing are extremely focused on secure, encrypted solutions. 

Additionally, nearly every app is pursuing international customers and every contract 

developer seeks international clients. Thus, it is important that Congress consider other 

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countries' reactions to U.S. digital policy and how other countries' policies could create 

challenges to American digital services or America's global interests. 

By demanding unfettered access to encrypted products and services, the FBI is putting 

American digital companies' international opportunities at risk. European and South American 

policymakers have virulently criticized U.S. Government collection of European citizens' and 

leaders' communications data, and many have demanded that U.S. companies provide assurances 

that their products and services are not susceptible to U.S. Government hacking. Leading 

European policymakers have repeatedly urged more robust European consumer privacy laws, 

stating forthrightly that this is intended to harm U.S. digital services and advantage European 

services. Mandating privacy-breaching back doors increases the risk that international 

governments will cite U.S. companies· non-compliance \Vith privacy laws to justify banning 

American apps from doing business in their country. Compounding this problem are 

governments- for example Russia, China and some in South America that are choosing to 

only do business with companies based in their own country. 

The App Developers Alliance is a global organization and our European and American 

members are equally optimistic about our industry, consumer adoption and economic 

opportunity. None of our members- anywhere in the world desire a trade war that divides the 

global Internet and global opportunity into smaller subsets of national markets. But if Congress 

requires U.S. companies to provide open backdoors for FBI access, it should anticipate European 

policymakers to respond emphatically. Mandatory privacy-breaching back doors \vii! instigate 

trade wars and exacerbate international business challenges. 

Third, mandatory back doors diminish consumer trust and create challenges for apps and 

all digital businesses. In addition to government risk, app developers will face marketplace 

challenges if forced to provide privacy-breaching back doors to law enforcement. Our customers 

in the United States and abroad- expect their communications to be private and secure when 

purchasing or using apps. Since our sector's inception just a decade ago. developers have 

prioritized the security and handling of their customers· data because they know that good data 

stewardship is critical to business success. Enabling governments to access data without proper 

legal process risks undermining the customer trust that app developers worked hard to obtain. 

Congress should also anticipate that governments worldwide \Vill demand their own back 

door key or separate back doors for their own security and law enforcement interests. This will 

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increase further the risk that consumer and business data could be compromised. Larger 

consumer app publishers might have the resources to build multiple back doors and might have 

enough consumer trust to withstand the associated scrutiny, but startups and resource-limited 

small innovators will be challenged to find resources to build multiple back doors, and will also 

have greater trust problems than established competitors. Of course, all apps not complying with 

other governments' demands could easily be locked out of those markets. 

As a purely technological matter any opening in security creates a vulnerable access point 

for hackers, thieves, and foreign governments to exploit. While the FBI would have us believe 

that law enforcement alone will be privy to our sensitive data, history demonstrates that bad 

actors will always be ahead of the curve and find an avenue to manipulate those openings. As 

one well-regarded cryptographer said "you can't build a back door that only the good guys can 

walk through." 

Currently. consumers read about data breaches on an almost daily basis. Though the 

market is demanding tighter security measures, there are only two types of companies in the 

world: those that have been breached and those that do not know they have been breached. 

Consumers expect businesses to respond to these breaches and many have bolstered their 

security features, sometimes through encryption, Requiring companies to build in a back door 

undermines consumers· and businesses' desires to secure data in storage, in transit, and across 

the supply chain. End-to-end encryption is the only way to secure user data from all outside 

forces while simultaneously giving consumers greater control of their data, 

Fourth, forcing holes in encryption harms startups and small innovators the most. Many 

-perhaps most- of the small companies that are Alliance members lack the resources to create 

country-specific access points for law enforcement agencies around the world. It is relatively 

easy to build a back door, but difficult to build a back door that only certain people- the right 

people- can access. While the U.S. government is pleading to tech companies "let us in," they 

simultaneously warn companies to keep hackers and other countries out. Because building a 

back door that is slightly ajar is technically challenging and very expensive, it is extremely 

difficult for large companies, let alone startups, to meet these conflicting demands. App 

developers and startups already must overcome significant cost hurdles before products get to 

market, and any regulatory inconsistency or redundancy is one burden too many. 

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While situations may occasionally justify law enforcement and national security 

agencies' access to our cell phones, such as a missing child, or matter of exigency, our statutes 

are filled with multiple, well-established, legal methods to access this data. Congress should 

insist that U.S. law enforcement and national security agencies utilize these processes before 

mandating back doors into apps, digital products and digital services. 

* * * * * 

In closing. I urge Congress to remember that encryption technologies are a market 

response to consumer demands, business needs, and U.S. and international governments' 

widespread calls to protect consumer data,. When an app developer builds a thriving business 

model around privacy, security and consumer trust, only to be told the FBI wants your products 

to be secure. but not too secure, this disrupts the marketplace. It is bad for innovation, had for 

business and bad for consumers. It is only good for hackers and cyberthieves who prey on 

private consumer data and commercially sensitive data. 

Americans correctly demand that their personal data is secure. Just as importantly, 

businesses deserve clear and consistent messages from our government to ensure a stable 

marketplace. I look forward to your questions and the Alliance looks forward to working 1vith 

Congress on this important issue. 

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53 

Mr. HURD. Thank you, Mr. Potter. 

Dr. Blaze, 5 minutes to you. 

STATEMENT OF MATTHEW BLAZE, Ph.D. 

Mr. BLAZE. Thank you, Mr. Chairman. 

As a technologist, I am finding myself in the very curious position of participating in a debate over the desirability of something 

that sounds wonderful, which is a security system that can be bypassed by the good guys, but that also reliably keeps the bad guys 

out. 

And we could certainly discuss that. But as a technologist, I can’t 

ignore a stark reality, which is simply that it can’t be done safely. 

And if we make wishful policies that assume and pretend that we 

can, there will be terrible consequences for our economy and for our 

national security. 

So it would be difficult to overstate today the importance of robust, reliable computing and communications to our personal, commercial, and national security. Modern computing and network 

technologies are obviously yielding great benefits to our society, 

and we are depending on them to be reliable and trustworthy in 

the same way that we depend on power and water and the rest of 

our critical infrastructure today. 

But, unfortunately, software-based systems, which is the foundation on which all of this modern communications technology is 

based, are also notoriously vulnerable to attack by criminals and 

by hostile nation-states. 

Large-scale data breaches, of course, are literally a daily occurrence, and this problem is getting worse rather than better as we 

build larger and more complex systems. And it’s really not an exaggeration to characterize the state of software security as an emerging national crisis. 

And the sad truth behind this is that computer science, my field, 

simply does not know how to build complex large-scale software 

that has reliably correct behavior. This is not a new problem. It has 

nothing to do with encryption or modern technology. 

It has been the central focus of computing research since the 

dawn of the programmable computer. And as new technology allows us to build larger and more complex systems, the problem of 

ensuring their reliability becomes actually exponentially harder 

with more and more components interacting with each other. 

So as we integrate insecure, vulnerable systems into the fabric 

of our economy, the consequences of those systems failing become 

both more likely and increasingly serious. Unfortunately, there is 

no magic bullet for securing software-based systems. Large systems 

are fundamentally risky, and this is something that we can, at 

best, manage rather than fix outright. 

There are really only two known ways to manage the risk of unreliable and insecure software. One is the use of encryption, which 

allows us to process sensitive data over insecure media and insecure software systems to the extent that we can. And the other is 

to design our software systems to be as small and as simple as we 

possibly can to minimize the number of features that a malicious 

attacker might be able to find flaws to exploit. 


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This is why proposals for law enforcement access features frighten me so much. Cryptographic systems are among the most fragile 

and subtle elements of modern software. We often discover devastating weaknesses in even very simple cryptographic systems 

years after they are designed and fielded. 

What third-party access requirements do is take even very simple problems that we don’t really know how to solve and turn them 

into far more complex problems that we really have no chance of 

reliably solving. 

So backdoor cryptography of the kind advocated by the FBI 

might solve some problems if we could do it, but it’s a notoriously 

and well-known difficult problem. We have found subtle flaws even 

in systems designed by the National Security Agency, such as the 

Clipper Chip two decades ago. 

And even if we could get the cryptography right, we’d be left with 

the problem of integrating access features into the software. Requiring designers to design around third-party access requirements 

will basically undermine our already tenuous ability to defend 

against attack. 

It’s tempting to frame this debate as being between personal privacy and law enforcement. But, in fact, the stakes are higher than 

that. We just can’t do what the FBI is asking without seriously 

weakening our infrastructure. The ultimate beneficiaries will be 

criminals and rival nation-states. 

Congress faces a crucial choice here: To effectively legislate mandatory insecurity in our critical infrastructure or to recognize the 

critical importance of robust security in preventing crime in our increasingly connected world. Thank you very much. 

[Prepared statement of Mr. Blaze follows:] 


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MATT BLAZE 

UNIVERSITY OF PENNSYLVANIA 1 

US HOUSE OF REPRESENT A TJVES 

COMMITTEE ON GOVERNMENT OVERSIGHT AND REFORM 

INFORMATION TECHNOLOGY SUBCOMMITTEE 

ENCRYPTION TECHNOLOGY AND POSSIBLE US POLICY RESPONSES 

APRIL 29,2015 

Thank you for the opportunity to offer my testimony on the important 

public policy issues raised by cryptography and other security technologies. 

Since the early 1990's, my research has focused on cryptography and its 

applications for securing computing and communications systems, 

especially as we rely for increasingly critical applications on relatively 

insecure platforn1s such as the Internet. My work has focused particularly 

on the intersection of this technology with public policy issues. For 

example, in 1994, I discovered some fundamental technical flaws with the 

ill-fated "Clipper Chip", an encryption system designed by the National 

Security Agency intended to provide a government backdoor to encrypted 

communications. 

I am currently a professor in the computer science department at the 

University of Pennsylvania. From 1992 until I joined Penn in 2004, I was a 

research scientist at AT&T Bell Laboratories. However, this testimony is 

not offered on behalf of any organization or agency. 

I. ROBUST DIGITAL SECURITY TECHNOLOGIES ARE VITAL TO PROTECTING 

OUR NATIONAL AND CRITICAL INFRASTRUCTURE 

It is difficult to overstate the importance of robust and reliable computing 

and communications to our personal, commercial, and national security 

today. Virtually every aspect of our lives, from our health records to the 

critical infrastmcture that keeps our society and economy mnning, is 

reflected in or supported in some way by increasingly connected digital 

technology. The influx of new communications and computing devices and 

1 University of Pennsylvania Computer and lnfom1ation Science, 3330 Walnut Street, 

Philadelphia, PA 19104. mab@CJypto.com. Affiliation for identification only. 
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2 Testimony of Matt Blaze 29 April 2015 

software over the last few decades has yielded enormous benefit to our 

economy as well as to our ability to connect with one another. This trend 

toward digital systems, and the benefits we reap from them, will only 

accelerate as technology continues to improve. Preventing attacks against 

our digital infrastmcture by criminals and other malicious actors is thus now 

an essential part of protecting our society itself. 

Unfortunately, modem computing and communications technologies, 

for all their benefits, are also notoriously vulnerable to attack by criminals 

and hostile state actors. And just as the benefits of increased connectivity 

and more pervasive computing will continue to increase as technology 

advances, so too will the costs and risks we bear when this technology is 

maliciously compromised. It is a regrettable (and yet time-tested) paradox 

that our digital systems have largely become more vulnerable over time, 

even as almost every other aspect of the technology has (often wildly) 

improved. New and more efficient communication technologies often have 

less intrinsic security than the systems they replaced, just as the latest 

computers and other devices regularly suffer from unexpected 

vulnerabilities that are exploited remotely by malicious attackers. Largescale data breaches and similar security failures have so become 

commonplace that they now only make the news when their consequences 

are particularly dramatic. Serious security failures are literally a daily 

occurrence, and it is not an exaggeration to characterize this situation as an 

emerging national crisis. 

Modem digital systems are so vulnerable for a simple reason: computer 

science does not yet know how to build complex, large-scale software that 

has reliably correct behavior. This problem has been known, and has been a 

central focus of computing research, since the dawn of programmable 

computing. As new technology allows us to build larger and more complex 

systems (and to connect them together over the Internet), the problem of 

software correctness becomes exponentially more difficu!t. 2 As this 

insecure technology becomes more integrated into the systems and 

relationships upon which society depends, the consequences become 

increasingly dire. 

While a general solution to the problem of software reliability and 

correctness has eluded us (and will continue to do so absent some 

2 That is, the number of software defects in a system typically increases at a rate far 

greater than the amount of code added to it. So adding new features to a system that makes 

it twice as large generally has the effect of making far more than twice as vulnerable. This 

is because each new software component or feature operates not just in isolation, but 

potentially interacts with everything else in the system, sometimes in unexpected ways that 

can be exploited. Therefore, smaller and simpler systems are almost always more secure 

and reliable, and best practices in security favor systems the most limited functionality 

possible. 
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29 April 2015 Testimony of Matt Blaze 3 

remarkable, unexpected breakthrough), there are two tried-and-true 

techniques that can, to some extent, ameliorate the inherent vulnerability of 

software-based systems. One is the use of encryption to protect data stored 

on or transmitted over insecure media. The other is to design systems to be 

as simple as possible, with only those features needed to support the 

application. The aim is to minimize the "attack surface" that any software 

vulnerabilities would expose. 

Neither the use of encryption nor designing systems to be small and 

simple are perfect solutions to the software security problem. Even carefully 

designed, single-purpose software that encrypts data whenever possible can 

still harbor hidden, exploitable vulnerabilities, especially when it is 

cOJmected to the Internet. For this reason, software systems must be 

exposed to continual (and resource intensive) scrutiny throughout their 

lifecycle to discover and fix flaws before attackers find and exploit them. 

But these approaches, imperfect and fragile as they might be, represent 

essentially the only proven defenses that we have. 

II. LAW ENFORCEMENT ACCESS REQUIREMENTS CARRY GREAT RISKS 

U.S. law enforcement agencies have for at least two decades been 

warning that wiretaps and other forms of electronic evidence gathering are 

on the cusp of "going dark". These fears have been focused chiefly on the 

potential for criminal use of encryption (which, properly used, can prevent 

eavesdroppers from recovering communications content), as well as 

emerging decentralized communications paradigms, such as peer-to-peer 

communication, that are not easily intercepted with the same techniques that 

were used to wiretap traditional telephone calls. They call for developers to 

incorporate "lawful access"3 features into products and services that 

facilitate wiretapping. 

At first blush, a "lawful access only" mechanism that could be 

incorporated into the communications systems used by criminal suspects 

might seem like an ideal technical solution to a difficult policy problem. 

Unfortunately, harsh technical realities make such an ideal solution 

effectively impossible, and attempts to mandate one would do enormous 

3 These law enforcement access features have been variously referred to as "lawful 

access", "back doors", "front doors", and "golden keys", among other things. While it may 

be possible to draw distinctions between them, it is sufficient for the purposes of the 

analysis in this testimony that all these proposals share the essential property of 

incorporating a special access feature of some kind that is intended solely to facilitate law 

entorcement interception under certain circumstances. 
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4 Testimony of114att Blaze 29 April 2015 

harm to the security and reliability of our nation's infrastructure, the future 

of our im1ovation economy, and our national security. 

A. Access Requirements Afake EnoJpfion Vulnerable and Expensive 

Let us consider first the relatively narrow problem of ensuring law 

enforcement access to encrypted communication.4 This is perhaps the 

simplest part of the law enforcement access problem, but it is dauntingly 

and fundamentally difficult to solve in practice without creating 

significant risk. 

Encryption systems encode messages in a way that prevents their 

decryption without knowledge of a secret, called a ke_v. Ordinarily, only the 

parties to the communication know the key, which can be destroyed and 

forgotten as soon as the communication has ended and need never be sent to 

anyone else. In most well designed encrypted communications systems, 

third parties - including the developer of the software used to perform the 

encryption and the service providers who operate the infrastructure through 

which it traverses -- do not know or have copies of these keys; the 

encryption is said to be end-to-end, meaning it is conducted entirely 

between the communicating parties. End-to-end encryption is an important 

simplifYing principle that allows for secure communication even over 

insecure media. It means that only the endpoints (the computers or devices 

being directly used by the parties) need to have access to and protect the 

keys, and the compromise of any other part of the system has no effect on 

the security of the messages. Securing the endpoints can sometimes be 

perilously difficult in practice, but it is a much simpler problem than 

securing the entire path over which messages are transmitted. 

Any law enforcement access scheme of the kind apparently envisioned 

by the FBI would, necessarily, involve a mechanism for the transmission 

and storage of sensitive secret keys to a third party (whether the govemment 

or some other entity that holds it). This approach is sometimes called key 

escrow, ke)' recove1y or trusted-third party encryption; the secret is held "in 

escrow" by a third party. Key escrow was the widely criticized approach 

incorporated into the Clipper Chip in the early 1990's. It destroys the endto-end design of robust encryption systems without any benefit to the 

application. 

There are several fundamental problems with such schemes. 

The most basic problem with law enforcement access cryptography is 

simply that we do not fully understand how to design them, even at an 

4 Decrypting encrypted communication is only one aspect of the law enforcement 

access problem as posed by law enforcement, but any access design mandate would, at a 

minimum, create the problems and risks discussed here, as well as others. 
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29 April 2015 Testimony ~{'Matt Bla:;e 5 

abstract, theoretical leveL Any key escrow or lawful access cryptography 

system, by its very nature, increases its number of points of failure. 

Unfortunately, we do not understand the problem well enough to even 

quantify how this reduces security, let alone identify a safe level for this 

reduction. 

The design and implementation of even the simplest encryption systems 

is an extraordinarily difficult and fragile process. V cry small changes 

frequently introduce fatal security f1aws. Ordinary (end-to-end, nonescrowed) encryption systems have conceptually rather simple requirements 

and yet, because there is no general theory for designing them, we still often 

discover exploitable flaws in fielded systems. Adding key escrow renders 

even the specification of the protocol itself far more complex, making it 

virtually impossible to assure that any systems using it will actually have 

the security properties that these systems are intended to have. It is possible, 

even likely, that lurking in any key escrow system will be one or more 

design weaknesses that allow recovery of data by unauthorized parties. The 

commercial and academic world simply docs not have the tools to analyze 

or design the complex systems that arise from key recovery. 

This is not simply an abstract concern. Virtually all law enforcement 

key recovery or key escrow proposals made to date, including those 

designed by the National Security Agency (the Clipper Chip5

), have had 

unanticipated design weakness discovered after the fact. 

Frequently, subtle but devastating weaknesses in cryptographic systems 

and protocols are only discovered long after they are deployed in products 

and services, which means that sensitive data was at risk from their very 

first day of usc. Law entorcement access requirements make such hidden 

flaws far more likely to exist. 

Aside from cryptographic weaknesses, there arc significant operational 

security issues. Third-party access, by its nature, makes encrypted data less 

secure because the third party itself creates a new target for attack. 

The FBI has not stated whether the cryptographic access mechanisms 

they desire would be operated centrally or by the vendors of individual 

products. Either approach creates its own inherent risks and costs. A 

centralized system becomes a large and highly attractive target, while 

leaving the task to individual product vendors introduces the likelihood that 

some vendors will be lack the resources to securely mange the keys for their 

customers or will be specialty targeted for attack by national advcrsarics.6 

5 See M. Blaze. "Protocol Failure in the Escrowed Encryption Standard". ACld 

Conference on Computer and Communications Securitv, 1994. 6 An alternative, but equivalently risky, design approach involves incorporating a law 

enforcement access mechanism into the end-user devices that would respond to remote 

commands from law enforcement to reveal its keys. In this case, managing and securing the 
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6 Testimony of Matt Bla:::e 29 April2015 

Importantly from a business perspective, the infrastructure to properly 

support any scheme of this kind would be very expensive to operate. 

Further risks arise from the operational complexity of managing access 

to the secrets keys. Key access centers must presumably be prepared to 

respond to law enforcement requests for key data 24 hours a day, 

completing transactions within a shmt time of receiving each request and in 

complete secrecy from the target of the investigation. There are thousands 

of law enforcement agencies in the United States authorized to perform 

electronic surveillance; the escrow centers must be prepared to identify, 

authenticate and respond to any of them within a short time frame. Even if 

we imagine relaxing these requirements considerably (e.g., one day or even 

one week response time), there arc few existing secure systems that operate 

effectively and economically on such a scale and under such tightly 

constrained conditions. 7 It is simply inevitable that lawful access systems 

that meet the government's requirements will make mistakes in giving out 

the wrong keys from time to time or will be vulnerable to unauthorized key 

requests. Nation-state adversaries could be expected to be particularly 

interested in, and adept at, fraudulent access to our law enforcement access 

. 8 services. 

B. Access Requirements Make Critical Software Vulnerable to Attack 

The vulnerabilities introduced by the cryptographic and operational 

complexity of introducing law enforcement access are significant; by itself~ 

this should be sufficient reason to render any policy that requires access 

unacceptably risky. But these arc not the only problems. Even more serious, 

subtle, and difficult to prevent risks arise from the process of integrating the 

mechanism into the end-user software itself. 

As noted above, computer science does not, in general, have the tools to 

secret required to remotely issue such commands is essentially an equivalent problem to 

managing and securing cryptographic keys. The same risks and costs are present in either 

design. 7 Perhaps the closest existing analog to such a system can be found in the law 

enforcement service centers operated by telephone companies to service wiretap and pen 

register requests. But these operations do not hold sensitive cryptographic keys of their 

customers or similar data. They simply act as a clearinghouse and point of contact to which 

law enforcement agencies serve legal processes. They do not have the problem of 

managing, controlling access to, or distributing any data as sensitive as cryptographic keys. 

~ In fact, there have already been several cases where hostile intelligence services have 

exploited the "lawful access" interfaces in telephone switches. The most famous published 

case involved the (still unsolved) compromise of a Greek mobile phone carrier. See V. 

Prevelakis and D. Spinellis, "The Athens Affair". IEEE Spectrum. July 2007. 
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29 April2015 Testimm~y ofA1att Blaze 7 

build reliably correct software, and any added requirements or features 

always increase the likelihood that the system as a whole will suffer from 

unintended, and exploitable, vulnerabilities. Law enforcement access 

requirements arc especially problematic in this regard because of their 

inherent interaction with the most security-sensitive aspects of the systems 

that would usc them. 

There has not yet been a specific proposal that specifics exactly which 

digital products and services for which the FBI seeks surreptitious data 

access mandates But even under a very conservatively applied mandate, 

ensuring law enforcement access in this way would be necessarily add 

complex requirements to an exceptionally broad range of consumer, 

business, and infrastructure-support software. We enjoy today flourishing, 

heterogeneous software and service marketplace. Everything from small 

mobile apps that provide instant messaging services to large-scale 

communication and data storage platforms routinely process 

communication and stored data that might potentially serve as evidence. 

The approach advocated by the FBI would affect software across the 

full range of modem computing, from small systems built by startups and 

entrepreneurs to large platforms managed by multinational corporations, be 

engineered to incorporate the law enforcement access features, from 

decentralized and standalone application to centralized, cloud-based 

services. In small systems, the law enforcement access mechanism could be 

expected to represent almost as much design and development effort as the 

underlying function of the software itself. In larger systems, depending on 

the specifics of the software architecture, the law enforcement access 

function would have to be designed around and interact with a large number 

of data management, security, and communications functions. 

Compounding the difficulty is the range of different application and 

service architectures whose designs would have to accommodate integration 

with the Jaw enforcement access features. Each application would require 

significant engineering effort, much of which would be highly specific to 

the particular piece of software. That is, much of engineering effort required 

to put applications in compliance would not be able to be re-applied to other 

systems, because each system has its own particular architectural and design 

constraints. And because the access features are so security sensitive, this 

engineering work will require the highest quality assurance, testing, and 

validation, making it a difficult, slow and very expensive process. Doing 

this properly (to the extent it can be done safely at all) will make the access 

feature a significant bottleneck to many projects. Given the time and budget 

pressures under which many software projects operate, and because the 

access feature is not directly useful to users, we can expect some developers 

to cut comers on the security engineering aspects of this process, devoting 
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8 Testimony of Matt Blaze 29 April2015 

only the minimum resources possible to meet the requirements. The result 

will be that while the features might work in the sense that they allow law 

enforcement access, they can also be expected to account for a large 

proportion of the potentially exploitable defects in the system as a whole. 

Incorporating law enforcement access features across even a subset of 

the most widely used software systems is an extraordinary engineering task, 

the correctness of which is crucial for the security and integrity of any data 

that the software might handle and of the environment in which it will run. 

In other words, the risks here come not just from the potential for direct 

misuse or abuse of the law enforcement access mechanism itselJ~ but from 

the inevitable introduction of unintentional software bugs that can be 

exploited by bad actors to bypass the "front door" of the access mechanism 

to gain access to sensitive user data. 

An altemative approach to requiring each software developer to design 

its own access mechanism is also possible, but would have even more 

negative effects on the software ecosystem. This would involve the 

govemment developing approved software libraries that implement the 

access mechanism and requiring software developers to incorporate them in 

their systems. Unfortunately, this scheme would have the effect of 

essentially outlawing software whose design and architecture is 

incompatible with the standard official libraries. It would hugely attenuate 

the innovation that has driven the software economy, and it would still carry 

most of the risks discussed above. 

C. These Risks Would Cut Across Our Nation's b~frastructure 

An important task for policymakers in evaluating the FBI's proposal is 

to weigh the risks of making software less able to resist attack against the 

benefits of more expedient surveillance. It effectively reduces our ability to 

prevent crime (by reducing computer security) in exchange for the hope of 

more efficient crime investigation (by making electronic surveillance 

easier). Unfortunately, the costs of the FBI's approach will be very high. It 

will place our national infrastructure at risk. 

This is not simply a matter of weighing our desires for personal privacy 

and to safeguard against govemment abuse against the need for improved 

law enforcement. That by itself might be a difficult balance for 

policymakers to strike, and reasonable people might disagree on where that 

balance should lie. But the risks here go far beyond that, because of the 

realities of how modern software applications are integrated into complete 

systems. 

Vulnerabilities in software of the kind likely to arise from law 

enforcement access requirements can often be exploited in ways that go 
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KING-6430 with DISTILLERInsert offset folio 49 here 25879.049

29 April 2015 Testimony of Matt Blaze 9 

beyond the specific data they process. In particular, vulnerabilities often 

allow an attacker to effectively take control over the system, injecting its 

own software and taking control over other parts of the affected system. 9 

The vulnerabilities introduced by access mandates discussed in the previous 

section are likely to include many in this category. They are difficult to 

defend against or contain, and they current represent perhaps the most 

serious practical threat to networked computer security. 

For better or worse, ordinary citizens, large and small business, and the 

govemment itself depend on the same software platforms that are used by 

the targets of criminal investigations. It is not just the Mafia and local drug 

dealers whose software is being weakened, but everyone's. The stakes are 

not merely unauthorized exposure of relatively inconsequential personal 

chitchat, but also leaks of personal financial and health information, 

disclosure of proprietary corporate data, and compromises of the platfom1s 

that manage and control our critical infrastructure. 

In summary, the technical vulnerabilities that would inevitably be 

introduced by requirements for law enforcement access will provide rich, 

attractive targets not only for relatively petty criminals such as identity 

thieves, but also for organized crime, terrorists, and hostile intelligence 

services. It is not an exaggeration to understand these risks as a significant 

threat to our economy and to national security. 

9 Such vulnerabilities, for example, are how so-called "botnets" are able to take control 

over large numbers of computers on the Internet. 
64 

Mr. HURD. Thank you, Dr. Blaze. 

I would now like to recognize my fellow Texan, Blake Farenthold, 

for 5 minutes. 

Mr. FARENTHOLD. Thank you very much, Mr. Chairman. 

Could we get the slide up? 

I think it was Mr. Potter that pointed out the FBI had some recommendations on their Web site about encryption that was recently taken down. I want to read the two that are highlighted. 

And, Ms. Hess, I want to get a couple questions for you on that. 

‘‘Depending on the type of phone, the operating system may have 

encryption available. This can be used to protect the user’s personal data in case of a loss or theft.’’ 

And it also says, ‘‘Pass code-protect your mobile device. This is 

the first layer of physical security to protect the contents of this device.’’ 

These are now off of the FBI Web site. Why did the FBI take 

down this guidance? 

Ms. HESS. Yes, sir. Actually, we decided to provide a link to that 

information. That same information actually appears through the 

link to IC3. 

Mr. FARENTHOLD. And you agree that that is probably good advice. You still advise people it is a good idea to encrypt their data? 

Ms. HESS. Yes, sir. We fully support encryption. 

Mr. FARENTHOLD. All right. Now, Dr. Blaze, you talked about the 

good guys versus the bad guys. Who is a good guy today may not 

always be a good guy. I mean, that definition of good guy, bad 

guy—I mean, it is overly simplistic. 

Who are the good guys? Who are the bad guys? And who makes 

that decision? 

Mr. BLAZE. That is certainly true. And I think, even if we can 

draw a line between who we want to have access and who we don’t, 

which is, of course, an impossible task in practice, we’d still be left 

with the problem that we wouldn’t be able to provide access. 

Mr. FARENTHOLD. And, Mr. Bankston, let’s talk a little bit about 

a golden key. That is one of the things that folks are looking at. 

Wouldn’t that become the biggest hacker target in the world if 

it were known there were a golden key and what we have today 

that might be deemed secure as computing power increases might 

become a lot easier to break? 

Mr. BANKSTON. Yes, Congressman. That is absolutely the case. I 

think that, as Professor Blaze made clear, attempting to build such 

a system would add incredible levels of complexity to our system 

such that it would inevitably, as the cybersecurity coordinator at 

NIST said recently, lead to unanticipated vulnerabilities. 

And that doesn’t even count the possibility of bad actors obtaining the keys. Even if you were to split those keys apart, as the 

NSA director has suggested, you have to put that key together 

somewhere, and wherever you do do that is going to be a critical 

target for anyone who wants to compromise our security. 

Mr. FARENTHOLD. Yeah. I have got a very limited time. I don’t 

mean to cut you off. I am just trying to get some broad general answers. We can get down to the weeds in another opportunity. 


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Is there anybody on the panel who believes we can build a technically secure back door with a golden key? Raise your hand and 

I will recognize you if you think that can be done. 

All right. Let the record reflect no one on the panel thinks that 

that can be done. 

All right. Let’s talk a little bit about if we were to go ahead and 

do it. The United States—let’s assume they are a good guy and we 

agree to put in a back door for them. All of a sudden we want to 

sell this same product in another country. So China wants a back 

door. North Korea wants a back door. 

Basically, every country is going to want a back door. Does anybody disagree with that statement? 

I see no hands coming up for that one either. 

So we then are good. So do we put all of these back doors into 

every system, making it that much more difficult, or do we then 

say, ‘‘All right. Well, this phone is sold in the United States. We 

are going to put a U.S. back door in’’? 

Well, that doesn’t help our intelligence community abroad. And 

if I wanted to avoid that, I would go to the Cayman Islands, which 

I would assume would have better privacy laws—I don’t know— 

there would be some haven country—and buy my phone there. 

Would it then be seized by Customs? 

I mean, I don’t see a practical way to implement this. I am now 

appointing you to the NSA. You are the head of the NSA. Anybody 

got a way we can do what we want to do? Raise your hand if you 

have got any suggestions that you think we can do it. 

Mr. Conley. 

Mr. CONLEY. Yeah. I am no expert. I am probably the least technologically savvy guy in this room, maybe. But there are a lot of 

great minds in the United States. I’m trying to figure out a way 

to balance the interests here. It is not an either-or situation. 

And Dr. Blaze said—you know, he’s a computer scientist. I’m 

sure he’s brilliant. But, jeez, I hate to hear talk like, ‘‘That cannot 

be done.’’ I mean, think about if Jack Kennedy said, ‘‘We can’t go 

to the moon. That cannot be done.’’ He said something else, ‘‘We’re 

going to get there in the next decade.’’ 

So I would say to the computer science community let’s get the 

best minds in the United States together on this. We can balance 

the interests here. 

Mr. FARENTHOLD. And I appreciate that because I am a proud 

American as well. But I think what we are saying today is—it 

would be the equivalent of President Kennedy saying, ‘‘We will be 

able to get to the moon in 10 years and nobody else will ever be 

able to get there ever.’’ I think that is the distinction I would like 

to draw there. 

It is not like we are saying we can’t develop a secure system, but 

we are also saying that can we really develop a secure system that 

will be secure for any length of time that somebody smarter might 

not be able to hack 5 years down the road or so. 

Anyway, I see I am already out of time. I appreciate your indulgence, Mr. Chairman. 

Mr. HURD. Thank you. 


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Votes have been called on the House floor. And what we are 

going to do is go to Ranking Member Kelly for questions, and then 

we will recess and reconvene 10 minutes after votes. 

I would now like to recognize my good friend, Ms. Kelly from Illinois. 

Mr. CONNOLLY. Would my friend Ms. Kelly yield just for a second? Because I may not be able to come back. 

I just want to welcome Mr. Potter, who is an old friend and colleague of mine. And I wish to welcome Mr. Conley, though I wish 

he would learn how to spell his name. 

Thank you very much. 

Ms. KELLY. Thank you, Mr. Chair. 

Mr. Bankston, a core component to what we are doing here today 

is examining what we can do to protect the privacy of consumer 

data and not serve as a barrier to law enforcement communities’ 

ability to do work that keeps us safe. I know I have heard from 

a number of folks on both sides of the data privacy issue. 

And so my question is: Is there such a thing as creating a back 

door that is only for the good guys? 

Mr. BANKSTON. I am also not a technical expert. I am a policy 

expert. But based on what every expert in the field has said not 

only in the current debate, but also 20 years ago in a many-multiyear debate over exactly this issue, the answer is a clear no and, 

in fact, a unanimous no. 

Ms. KELLY. Also, could the existence of a back door created in the 

interest of public safety actually serve as a Trojan horse that 

cybercriminals exploit to their advantage? 

Mr. BANKSTON. Absolutely. Any back door is going to necessarily 

weaken the security of a system in a way that another actor, someone with worse interests than our own Government trying to protect us, could exploit. 

Ms. KELLY. Any other comments about that? 

Ms. HESS. Yes, ma’am. First off, when we are discussing solutions, what we found in the past is that, if solutions are developed 

on the front end of a design, they’re ultimately more secure than 

something that is patched on to the back end of an existing solution, of an existing network, or an existing device. 

That we also found with respect to what Mr. Bankston refers to 

20 years ago when a law was enacted that, essentially, most 

thought would decrease security of systems, and that turned out 

not to be the case. To the contrary. Companies actually developed 

more secure ways of being able to still conduct the surveillance 

that we were able to enact back 20 years ago. 

Mr. BANKSTON. If I may respond to that, I assume Assistant Director Hess is referring to CALEA, the Communications Assistance 

for Law Enforcement Act, which actually explicitly provided that 

the phone companies subject to its intercept capabilities were 

under no obligation to prevent or assist in the decryption of 

encryption that was done by their users or even encryption that 

they offered where they did not hold the keys. So protection for 

encryption and, in fact, end-to-end encryption was protected explicitly in CALEA. 

Ms. KELLY. Thank you. 

I yield back. 


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Mr. HURD. The gentlelady yields back. 

I would like to recognize the chairman of the committee, Chairman Chaffetz, for 5 minutes. 

Mr. CHAFFETZ. Thank you. 

And I again thank you all for being here. 

There are some important questions that face us. 

Ms. Hess, you have a very important role within the FBI, and 

we appreciate the work that you are doing. But it was said earlier—and I want to ask you and give you a chance to respond to 

it. 

But does encryption actually help prevent crime, in your opinion? 

Ms. HESS. Yes, sir, it does. 

Mr. CHAFFETZ. But the policies that the FBI is advocating, specifically the Director, don’t necessarily fall in line with that, do 

they? I struggle with what the Director is asking for because—are 

you going to have encryption? Not encryption? 

Ms. HESS. Yes, sir. I think the distinction comes from the idea 

that we are not supportive or in favor of encryption, and that is not 

true. That is not accurate. We actually want encryption. It secures 

our networks. It obviously assists us in providing security and 

blocking the cyber threats. 

However, all we’re asking for is a way for us to be able to, with 

a lawful order, be able to get information from the company so that 

the provider would be able to provide in readable form the potential evidence that we would need in an investigation. 

Mr. CHAFFETZ. So you want encryption, but a key. And doesn’t 

that key by its very definition create a vulnerability? 

Ms. HESS. In today’s world, sir, I think that there is no such 

thing as absolute security in either the physical or the digital 

world. What we are asking for is not to lower those standards by 

developing some type of lawful intercept or lawful access capability 

but, rather, to come up with a way that we may be able to implement perhaps multiple keys or some other way to be able to securely access the information—or, actually, rather, be able to be 

provided with the information. 

Mr. CHAFFETZ. And that is the concern, is that, if you create a 

key—let’s pretend it is a key to your house. You can go down to 

Ace Hardware and make a copy of it. Right? Somebody is going to 

be able to figure it out. You can get a locksmith who can go and 

open up your front door. 

And the same principle—unless there is some new technology 

that we don’t know about, that is the concern. And that is the disconnect from what we hear from the FBI and the reality of—do you 

create the hardest, strongest encryption possible, which means not 

having a key? 

And, again, I know we won’t necessarily solve it all right here 

in this debate. But I have got to ask you something else before I 

run out of time. 

One of the keen concerns that I have—and I have sponsored a 

bill called the GPS Act—deals with geolocation. There is a debate 

and discussion about metadata versus content, for instance, in 

emails. 


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If you and I are trading emails, you have heard the Department 

of Justice argue that the fact that I communicated with you is just 

the metadata. It is not the content of what we were talking about. 

Does the Department of Justice believe that your geolocation is 

content or do they just think that that is metadata? 

Ms. HESS. Well, sir, first off, for geolocation information, we do 

obtain a search warrant for that information. 

Mr. CHAFFETZ. Always? 

Ms. HESS. But I—— 

Mr. CHAFFETZ. Always? 

Ms. HESS. I would have to ask that we maybe brief you about 

that in more detail at a later time. 

But at the same time, to address your issue about metadata and 

geolocation information, clearly those certainly are useful tools, 

usual techniques, for us to be able to paint the picture of what happened in an investigation, but they are not wholly inclusive of all 

the evidence we may need to be able to show intent, for example, 

with the content of the communication. 

Mr. CHAFFETZ. I understand the need. And I don’t have a problem if you have probable cause or get a warrant or even articulable 

suspicion. 

What I have a problem with is you tracking geolocation at will. 

And I think Americans have a reasonable right to privacy. 

So post-Jones, what I still struggle to understand from the Department of Justice is: What is their guidance? What are their 

rules of the road? 

I mean, I would like to know if you all track my wife or not. Do 

you do that? I know you can. My question is: Do you do it? 

And you are giving me a, ‘‘Well, I am not’’—I mean, clarify that 

for us. It is not a yes or a no. That is the concern. I am not getting 

a yes or no from you. 

Ms. HESS. I would answer in response to that question that, certainly, to obtain any type of information, we would go through lawful process. 

Mr. CHAFFETZ. Is lawful process your ability to track geolocation 

without getting a warrant? 

Ms. HESS. Currently we do get a warrant, is my understanding. 

Mr. CHAFFETZ. And I amasking: Do you always get a warrant to 

track geolocation? The answer is no, isn’t it? 

Ms. HESS. There’s exigent circumstances. That is correct. 

Mr. CHAFFETZ. Okay. So describe those circumstances. 

At what level? What is the threshold? What is the guidance? 

Ms. HESS. So, first, I believe it would depend on the type of data 

that we are talking about—— 

Mr. CHAFFETZ. Geolocation. 

Ms. HESS. —and the type of geolocation data, whether that’s GPS 

data or whether that’s some type of other geolocation type of data. 

I again would request that we could certainly brief you on this 

in more detail. 

Mr. CHAFFETZ. Yeah. I want you to brief the American people. 

This is why I am going to continue asking these questions. 

Mr. Chairman, I am out of time. And we have a vote on the floor. 

But this is one of the deep questions I have for the Department of 

Justice. 


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Believe me, you are not the first person that can’t clearly answer 

this, and I think people have the right to know what that answer 

is. 

Is the Government tracking their geolocation? And right now I 

think the answer unfortunately is, yes, they are. And certainly they 

are at times without a warrant and without articulable suspicion. 

With that, I yield back. 

Mr. HURD. Votes have been called on the House floor. We will recess and reconvene 10 minutes after voting. 

[Recess.] 

Mr. HURD. The Subcommittee on Information Technology will reconvene. 

I would like to now recognize my colleague from California and 

fellow recovering computer scientist, Ted Lieu, for 5 minutes. 

Mr. LIEU. As a recovering computer and science major, it is clear 

to me that creating a pathway for decryption only for good guys is 

technologically stupid. You just can’t do that. 

But I am more interested now in knowing, if this were to happen, what would the effect of this be on global companies and global app developers. 

And, Mr. Potter, in your testimony, you raise concerns that device pathway will introduce technological vulnerabilities to mobile 

application. 

What effect would the pathway have on the global application developers’ market? 

Mr. POTTER. Thank you for that question, Congressman Lieu. 

Today every app developer thinks that their marketplace is global, their opportunity is global. The Google Play Store is global. The 

Apple devices are global. 

The challenge is in Europe we have a very different privacy regime than we have in the United States. And Europe has already 

made—European leaders have already spoken quite bluntly that, if 

they strengthen their privacy laws, it will, in fact, harm U.S. companies and create business opportunities for European companies. 

So European leaders in the privacy area are very concerned 

about—and they’ve been pretty blunt about it—Facebook, Amazon, 

Google, collecting data and things like that and what do they do 

with the data. And they are extraordinarily distressed with the 

U.S. Government vacuuming up data throughout the world, including listening to phone calls of some of their leaders. 

The combination of that, of the political angst and the business 

stress, creates a very easy opportunity for them to simply say that 

any company that has a back door particularly to the U.S. Government, which at least in the minds of European leaders, does not 

have a great history of using those back doors with discipline, creates a vulnerability that is unlawful under European privacy law; 

and, therefore, you’d be banned from the European market. 

Mr. LIEU. Thank you. I appreciate that. 

I am going to reserve the balance of my time to make a statement. It is primarily directed at Mr. Conley. I respect your public 

service. I take great offense at your testimony today. 

You mention that unaccountable corporate interests such as 

Apple and Google are essentially protecting those who rape, deVerDate Nov 24 2008 10:23 Jul 11, 2017 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6633 H:\25879.XXX APRIL

KING-6430 with DISTILLER
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fraud, assault, and kill. I think that is offensive. It is a fundamental misunderstanding of the problem. 

Why do you think Apple and Google are doing this? It is because 

the public is demanding it, people like me, privacy advocates, a 

public that doesn’t want an out-of-control surveillance state. It is 

the public that is asking for this. Apple and Google didn’t do this 

because they thought they would make less money. This is a private sector response to government overreach. 

Let me make another statement that somehow these technology 

companies are not credible because they also collect private data. 

Well, here is the difference. Apple and Google don’t have coercive 

power. District attorneys do. The FBI does. NSA does. And, to me, 

it is very simple to draw out the privacy balance when it comes to 

law enforcement and privacy. Just follow the damn Constitution. 

And because the NSA didn’t do that and other law enforcement 

agencies didn’t do that, you are seeing a vast public reaction to 

this. Because of NSA, your colleagues have essentially violated the 

Fourth Amendment rights of every American citizen for years by 

seizing all of our phone records, by collecting our Internet traffic. 

That now is spilling over to other aspects of law enforcement. 

And if you want to get this fixed, I suggest you write to NSA and 

the FBI should tell the NSA ‘‘Stop violating our rights’’ and then 

maybe you would have the public much more on the side of supporting some of what law enforcement is asking for. 

And then let me just conclude by saying I do agree with law enforcement that we live in a dangerous world and that is why our 

Founders put in the Constitution of the United States of America— 

that is why they put in the Fourth Amendment, because they understand that an Orwellian, overreaching Federal Government is 

one of the most dangerous things that this world can have. 

I yield back. 

Mr. CONLEY. Do I get to respond to that? 

Mr. HURD. The gentleman yields back. 

I would like to recognize my colleague, Mr. Blum from Iowa, for 

5 minutes. 

Mr. BLUM. Thank you, Chairman Hurd. 

I would like to welcome today the panelists. I appreciate your insights on this topic. 

And I also would like to acknowledge law enforcement. I know 

it is not easy what you do, and I am so appreciative of the amazing 

job that your departments do. And I love the Thin Blue Line. So 

thank you so much for what you do. 

Ms. Hess, my questions are probably addressed to you. I just 

want to make sure I understand this. 

Law enforcement wants to force the private sector to build a back 

door, if you will, or backdoor key into cell phones, into software, 

things such as that. Is that correct? 

Ms. HESS. Sir, I would actually phrase that from the sense that 

we are simply asking for information that we seek in response to 

a lawful order in a readable format. How that actually happens 

should be the decision of the provider. 

Mr. BLUM. So you are not asking for a backdoor key into the 

encrypted software or cell phone? 


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Ms. HESS. If we don’t have the key, but, yet, the provider can get 

us that information by maintaining the key themselves, then that 

would be obviously a legitimate way to respond to our lawful order. 

Mr. BLUM. Okay. And what you are asking for only would be 

used if a warrant is issued. Is that correct? 

Ms. HESS. Yes, sir. Everything we are discussing today. Yes, sir. 

Mr. BLUM. And what we are discussing today would arguably 

make law enforcement’s job quicker, easier to apprehend the bad 

guys, as we said. Is that correct? 

Ms. HESS. Yes, sir. 

Mr. BLUM. I am a software developer myself, and I am also a 

homebuilder. So I would just like to give you an analogy as I understand this. 

Isn’t this analogous to the Government asking or requiring homebuilders to put a video camera in every room of every new home 

that they build with the guarantee or the promise that the Government won’t turn it on, ‘‘Don’t be concerned. The Government will 

not turn this camera on unless we get a warrant’’? And that would 

make law enforcement’s job easier, correct, and quicker if there is 

a crime in the home? Isn’t this analogous to that? Because you are 

saying, ‘‘Trust us. We will only do this if we need to do it.’’ 

Ms. HESS. Sir, I think the analogy may be better described as if 

we should need to know what is going on in that home. Then, as 

long as the company can respond quickly. Now, that may mean 

that they wire the home, but it certainly doesn’t mean they necessarily have to have the cameras installed as long as they can do 

that quickly. 

On the other hand, if they can come up with a different way to 

tell us what is going on inside that home and do it quickly in a 

timely manner that is quickly available to us when needed, then 

whatever way they come up with would be acceptable. 

Mr. BLUM. Because what troubles me is law enforcement tends 

to agree with—and I will paraphrase here—but that there is a reasonable standard of privacy, Fourth Amendment rights, when one 

is in their own home. I think most people in law enforcement would 

agree with that. 

But when it comes to our cell phone conversations, our emails, 

anything that is electronic and data, it seems like this reasonable 

right to privacy isn’t there. The people in my district in Iowa feel 

the same way. 

Would you address that, please. 

Ms. HESS. Yes, sir. I would like to. 

I believe that is inaccurate. Certainly you do have a reasonable 

expectation of privacy, which is why what we are referring to today 

and discussing here today requires a warrant. Whether that is 

realtime communications or the data stored on that device, it still 

would require a warrant. And that is the threshold under the Constitution. 

Mr. BLUM. Thank you. 

And this next question is for anyone on the panel. Does law enforcement have other ways, other ways, other than what you are 

asking for, to access the necessary data needed in, let’s say, 99 percent of the criminal cases? Are there other ways of doing this? 


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Because it seems like we are always given, as citizens, the dichotomy of liberty and giving up liberty and freedom for safety. 

And I believe in American exceptionalism. I believe we can have 

both. 

Aren’t there other ways law enforcement can do this? 

Ms. HESS. Yes, sir. I would like to address that. 

I also believe that we can balance liberty and security and public 

safety. I would say that there are certainly—when law enforcement 

is stymied by a particular obstacle in an investigation, we will seek 

all other ways to get the information we need. 

But those other ways may delay us in getting that information. 

They may not be timely solutions. They may not be encompassing 

solutions to where we might be able to identify other victims or 

other coconspirators or the vast nature of the crime or the impact 

of the crime, and that is what concerns us, to be able to get that 

information quickly. 

Mr. BLUM. And I am out of time. I yield back, Mr. Chairman. 

But, once again, I would like to thank law enforcement for the 

amazing job that you do. Thank you very much. 

Mr. HURD. The gentleman yields back. 

I would like to recognize myself for 5 minutes for questions. I 

have got questions for everyone. 

So we will start with you, Dr. Blaze. Can you tell us a little bit 

about your background, quickly, your degrees, how long have you 

been involved as a computer scientist in cryptology. 

Mr. BLAZE. I am computer scientist. My specialty is in computer 

security and cryptography and the applications of cryptography to 

building large-scale systems. 

As a particular focus of my research area, I have been concerned 

with surveillance technologies and some of the issues at the intersection of technology and public policy. In this issue, 20 years ago 

I discovered some flaws in the previous U.S. Government proposal, 

the Clipper Chip. 

Mr. HURD. And you are at a university that the department is 

pretty well known worldwide when it comes to cryptology and computer science. Is that correct? 

Mr. BLAZE. I would like to think so. 

Mr. HURD. And I know you are a modest man. So I don’t mean 

to ask an indelicate question. 

But you are considered an expert when it comes to cryptology 

and encryption? 

Mr. BLAZE. I suppose so. 

Mr. HURD. So in your expert understanding, is there any way to 

do a split-key approach to encryption? 

Mr. BLAZE. There are things we can do, like splitting the key between multiple locations, that can reduce some aspects of some of 

the risks in a system like this. 

Mr. HURD. But it does create additional vulnerabilities—— 

Mr. BLAZE. That is right. 

Mr. HURD. —that anyone who has technical capability would be 

able to take advantage of? 

Mr. BLAZE. That is right. We can move the risks around from one 

part of the system to another, but there are still fundamental problems that we don’t know how to solve. 


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Mr. HURD. And this was ultimately part of the problem with the 

Clipper Chip from the 1990s? 

Mr. BLAZE. That is right. There were a number of problems with 

the Clipper Chip proposal, but that was one of them. 

Mr. HURD. Thank you, sir. 

Mr. Potter, as a politician, I am always told don’t answer hypothetical questions, but I am going to pose a hypothetical question 

to you. 

If there were a back door or a front door put into applications 

or programs of U.S. businesses, how do you think—the impact that 

would have on businesses in China, Russia and Iran? 

Mr. POTTER. I have to anticipate, sir, that those governments 

would ask for their own back door. 

Mr. HURD. Thank you. 

Mr. Bankston, we are going to save you for last. 

Mr. Conley, if you have a properly issued warrant to go into 

someone’s house and there is a safe in that house that is locked, 

what happens? 

Mr. CONLEY. The safe will be taken out and it would be broken 

into. 

Mr. HURD. Okay. So in your testimony you mentioned that 

Google—and I believe we can infer Apple—stated that its new operating system would make its mobile devices inaccessible to law enforcement officials even with a warrant signed by a judge. Is that 

correct? 

Mr. CONLEY. That is correct. 

Mr. HURD. So if you had a properly issued warrant, would you 

not be able to get that device? 

Mr. CONLEY. You could get the device. You couldn’t get the information off the device if it is running iOS 8. 

Mr. HURD. So iOS 8—the default setting is a five-digit PIN. Correct? 

Mr. CONLEY. Is it five? It is a pass code of some sort. 

Mr. HURD. Dr. Blaze, I am a little rusty when it comes to—so 

that is 5 factorial over 5. Right? And it would take, what, 13,000 

possible iterations of a potential five-digit PIN? Actually, it is a 

four-digit PIN, I believe what it is, four-digit PIN. 

Mr. BLAZE. Yes. 

Mr. HURD. So that is 4 factorial over 4, which is even less than 

13,000. 

Mr. BLAZE. 10 to the 4th. So about 10,000. 

Mr. HURD. For a brute-force method with today’s technology, is 

that difficult? 

Mr. BLAZE. That is well within the range of a brute-force attack. 

Mr. HURD. And how long would that take, roughly? 

Mr. BLAZE. On modern computing hardware, essentially no time 

at all. 

Mr. HURD. So would you agree that that is the equivalent of taking a safe out of a home and using some safe-cracking skills? This 

would be the digital equivalent? 

Mr. BLAZE. No. This would be much easier than that. 

Mr. HURD. Because you are good. You know? I think my colleagues from Texas A&M would probably be able to do it, too. 


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Now, my next question is to you, also, Mr. Conley, on the upskirting example that you used, if you had surveillance on someone 

doing up-skirting, the fact that they are putting a camera to try to 

take pictures of someone, would that not be enough to arrest them? 

Mr. CONLEY. That would not be enough. In order to commit the 

crime, you have to have taken the photo, and there would be no 

way to prove it. There would be no way to prove that the actual 

photo was taken, what it was taken of. So we could not successfully 

prosecute that case without the photograph, in my opinion. 

Mr. HURD. Excellent. 

I would like to yield to my colleague from California, Mr. Lieu. 

Mr. LIEU. Thank you, Mr. Chair. 

I do have some more questions along the lines of how easy it 

would be to defeat one of these pathways. So let’s say we pass law 

that says: Okay. The Apple iPhone now has to have this pathway 

only for good guys. 

What is to keep a terrorist—and this is for Dr. Blaze—for example, from saying, ‘‘Even though I like their multi-colored Apple 

iPhones, I am going to switch to Samsung phones?’’ Is there anything stopping that from happening? 

Mr. BLAZE. No. Fundamentally, the ease of loading application 

software and the wide variety of platforms that we have make it 

very simple for somebody who is determined to use unbreakable 

encryption to do so. It might not be as easy or as inexpensive as 

we would like it to be, but there are no fundamental barriers to it. 

Mr. LIEU. And currently, right now, there is nothing preventing 

two people anywhere in the world from downloading an encryption 

program to encrypt end to end those two communications that 

would make this pathway essentially meaningless. Is that correct? 

Mr. BLAZE. That is right. Now, there may be vulnerabilities on 

the computers that run that software, and, in fact, there likely 

would be for the reasons that I discussed in my written testimony. 

But the encrypted messages themselves in transit would be effectively impossible in practice to decrypt. 

Mr. LIEU. And is it your understanding that sometimes terrorists 

now resort to something as simple as just writing something on a 

piece of paper so they are off the grid? 

Mr. BLAZE. Well, I am not an expert on terrorists, but I would 

imagine that paper-and-pencil technology is well within their—— 

Mr. LIEU. And we don’t say that companies who make paper 

shredders are somehow protecting terrorists. Correct? 

Mr. BLAZE. I have never heard that said. 

Mr. LIEU. So let’s talk a little about computer code. It is true, 

isn’t it, that computer code is neutral, that is, the code cannot tell 

if the person reading the code or accessing the code is Asian or the 

leader of Hamas or the FBI director or gay or a woman or a man? 

As long you have got the key to that encryption, you get in the system. Correct? 

Mr. BLAZE. That is right. 

Mr. LIEU. The NSA, would you agree, has one of the most secure 

systems in the world? 

Mr. BLAZE. I think they have enormous expertise. 


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Mr. LIEU. Curious, isn’t it, that we now know so many secrets 

about the NSA not because of technology, but because we have 

human beings? 

And so another aspect of all of this is you would be asking the 

American public to trust all the human beings in the Federal Government who could be looking at private data. 

And it turns out, right, that sometimes human beings do things 

you don’t want them to do, such as this one person who now disclosed all these secrets of the NSA, even though that is one of the 

most secure systems in the world? 

Mr. BLAZE. The operational aspects of maintaining any kind of 

large-scale secure system are enormously daunting, as I think the 

NSA discovered 2 years ago. 

Mr. LIEU. Thank you. 

And I yield back. 

Mr. HURD. Thank you. 

I would like to recognize the ranking member, my good friend 

Ms. Kelly from Illinois, for 5 minutes. 

Ms. KELLY. Thank you. 

Ms. Hess and Mr. Conley, when you are not doing your job, you 

are citizens of our society. So how do you reconcile the need for this 

data with people’s privacy interests in their data? Because you are 

a person, too, and then you are in law enforcement. So how do you 

reconcile this? 

Ms. HESS. Yes, ma’am. I will start. 

I certainly obviously value my privacy. I want to make sure that 

my system is as secure as possible. And I think that goes back to 

the points that certainly the FBI is trying to make, which is that 

we support encryption. We want secure networks. 

It is just this inability that, for example, if I was committing 

criminal activity, that that information would be completely inaccessible. So in the safe example, we would never be able to access 

what is inside that safe, and that, I think, is more to the point of 

the question because certainly we do value privacy and certainly 

the safeguards of the Constitution. 

Ms. KELLY. Thank you. 

Mr. CONLEY. As I mentioned in my remarks, too, I value my privacy as much as the next person. Just to give you an example, recently my computer at home was infiltrated by somebody. And so 

anytime I click onto a link, I get bombarded with all sorts of merchandising messages and so forth. Somewhat innocuous, but it is 

clear that my computer was infiltrated. So I went out and bought 

some security software and loaded it onto my computer. So I am 

certainly very cognizant of the need to protect my privacy. I do all 

my banking and so forth on this. 

My position has always been just very simple, that we ought to 

not be able to completely hide valuable evidence of a crime that is 

being committed or has been committed to hold individuals accountable for their actions. And that is what I am advocating for, 

some sort of balancing of the interests here so that everyone’s right 

to privacy is acknowledged and glorified, really, but at the same 

time law enforcement is not completely kept in the dark about 

these sorts of things. 


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Ms. KELLY. I appreciate all of your testimony. And, obviously, 

encryption of data, from what I am hearing, should be conducted 

in a way that respects both law enforcement and private consumers’ interests. 

So, again, I want to thank the chairman for holding this very important hearing. 

Mr. CONLEY. Mr. Chairman, you had asked the question about 

the pass code and about brute force. And far be it from me, I suppose, to challenge Dr. Blaze on brute force. 

But my iPhone is owned by the Commonwealth of Massachusetts, and it has seven digits. My pass code is not four, but seven. 

So I suppose the exponential issue there is considerably larger, obviously, with seven digits. And I am told that, after 10 attempts 

to break into my—using my pass code, that is it. I am blocked out 

and there is some erasure that goes on. 

So at least up to this point in this hearing, I believed that there 

is no brute-force technology out there available that could allow 

law enforcement to break into somebody’s handheld device. 

And I also ask this question: Can this issue be bifurcated in some 

way so that big corporate computer networks and so forth can remain encrypted without any sort of golden key, but devices like 

this, mobile devices, which are now the tools of terrorists and 

criminals, can be accessed on probable cause after a magistrate 

issues a warrant? 

Mr. HURD. Thank you, Mr. Conley. 

And to answer that question, when I left the CIA, I spent about 

5 years helping build a cybersecurity company. We did penetration 

testing, technical vulnerability assessments. 

And I would always offer my clients—a lot of times we worked 

with banks, and I would offer my clients the option of, ‘‘You pay 

our fee or we get to keep what we take.’’ Nobody took us up on the 

last one because we never not got in. 

So the tools, the technical capabilities, are out there. That is 

something that—having a conversation about how do we get the 

right tools and expertise to law enforcement may be a conversation 

where that may be a positive thing that comes from this conversation. 

Mr. Conley, last question for you, sir, or sets of questions. In the 

up-skirting example, are there up-skirters in Boston that haven’t 

been caught because they have used encryption? 

Mr. CONLEY. Well, this encryption technology is nearly brand 

new. So I am not aware of any cases yet. You know, when we 

caught an up-skirter in Massachusetts, we realized actually there 

was no statute that made it a crime. So the Massachusetts legislature quickly took up this issue and made it a crime, meteoric. 

Mr. HURD. As it should be. 

Mr. CONLEY. As it should be. 

Mr. HURD. As it should be. 

And, also, to you, I appreciate your work and what you do. You 

know, 9 years I was an undercover officer overseas collecting intelligence on threats to the homeland. I collected that intelligence to 

help law enforcement and help folks like you and your colleagues 

put these bad guys away. You do this at a threat to your own life. 

You do this at a threat to your family. And I thank you for that. 


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But, also, you know, because of the role you play and the importance you play, I actually hold you all up to a higher standard as 

well, and I am always proud to stand side by side with you all. 

Ms. Hess, question for you. What is the FBI asking for? 

Ms. HESS. Yes, sir, Mr. Chairman. 

I would say that certainly what we are asking for, first and foremost, is exactly what we are doing here today and just the opportunity for the American public to consider these issues and to 

weigh the risks. 

Because clearly we recognize that there is no absolute security, 

again, in either the physical or the digital world. Everything may 

present a vulnerability. There may already be vulnerabilities in 

place. 

But for law enforcement to not have the ability to accept or to 

receive the information that we might need in order to hold those 

accountable who conduct heinous crimes or who will conduct terrorist attacks, that’s the question that I think we need to balance 

in the American public. And just by having that conversation will 

help us, I think, to make better informed decisions. 

Mr. HURD. Thank you. 

And, Ms. Hess, does the FBI have any information or data that 

suggests that the inherent vulnerabilities that have been discussed 

about dual encryption is that there is a way to do it? 

Ms. HESS. We certainly believe and share Mr. Conley’s hope that 

there is some type of innovative solutions out there, that we might 

be able to see government and industry work together to come up 

with—certainly they won’t be bulletproof, as has been said earlier, 

but certainly more secure ways of being able to get law enforcement what it needs, yet at the same time provide layers and layers 

and layers of security so that the providers can provide the customer what they need as well. 

Mr. HURD. Thank you. 

Mr. Bankston, in your written testimony, you talked about the 

President’s Review Group. 

Can you characterize quickly for me what the President’s Review 

Group was. 

Mr. BANKSTON. The President’s Review Group was a panel of experts picked by the President, five of them, to review the NSA’s intelligence activities, including a former CIA director and a former 

anti-terrorism czar of the White House. They concluded that it 

should be the policy of the United States to promote rather than 

undermine the use of strong encryption. 

Mr. HURD. And you highlighted Recommendation 29. 

Mr. BANKSTON. Number 29. 

Mr. HURD. And I would like to read that. And I do appreciate all 

of you all’s written testimony. But you had a lot of great information here. 

Mr. BANKSTON. Thank you. 

Mr. HURD. And Recommendation 29 that President Obama’s Review Group provided was that they recommend, regarding 

encryption, the U.S. Government should fully support and not undermine efforts to create encryption standards; number two, not in 

any way subvert, undermine, weaken, or make vulnerable generally available commercial software; and, number three, increase 


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the use of encryption and urge U.S. companies to do so in order to 

better protect data in transit, at rest, in the cloud and other storage. I think that is a pretty good recommendation. 

And I would like to close my remarks with some of the quotes 

from Ms. Hess’ written testimony: ‘‘Following the rule of law and 

upholding civil liberties and civil rights are not burdens. They are 

what make all of us safer and stronger.’’ I couldn’t agree more with 

that. 

And, again, I started in the CIA in October of 2000. And on September 12, I was the fourth employee in the unit that prosecuted 

the war in Afghanistan and helped infiltrate Americans into Afghanistan to bring Al Qaeda and the Taliban to justice for their 

acts of terrorism on our shores. 

And if somebody would have told me on September 13 that it 

would be 14 years prior to an attack happening on our homeland 

again, I would have said you are absolutely crazy. And the reason 

nothing has happened these last 14 years is because our men and 

women in the intelligence community, in law enforcement, are acting as if it is September 12, 2001, every single day. The velocity 

that that requires, the dedication, the countless hours of sacrifice, 

is incredible, and I applaud everyone for that. 

But that is why I hold everyone in the law enforcement intelligence community to a higher standard and that upholding civil 

liberties and civil rights are not burdens. They are what make all 

of us safer and stronger. 

And this is a good conversation, but I would recommend or comment that any other future proposals or comments that are going 

to come before this body will be carefully scrutinized by this committee, by many of our colleagues, because we can protect our country and our civil liberties at the exact same time, and that is what 

we must do. 

So I want to thank all of you all for your time today and this 

conversation. I think it is always helpful. This has helped me better understand my opinions on this topic. And I would like to thank 

our witnesses for taking the time to appear before us today. 

If there is no further business, without objection, the subcommittee stands adjourned. 

[Whereupon, at 4:28 p.m., the subcommittee was adjourned.] 

Æ 


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