FBI Director Nominee Wray's Position on Encryption Unknown, Stirring Speculation
The position of Christopher Wray, President Donald Trump's pick to lead the FBI, on investigatory access to encrypted data isn't really known, said several civil liberties, privacy and technology experts interviewed last week, stirring speculation on whether he will follow a harder-line stance like former FBI Director James Comey or seek to resolve the issue with the privacy and technology communities. But experts said they expect Senate Judiciary Committee members to ask "tough questions" on encryption since it has become more of a hot-button issue over the past two years, in part, due to the 2015 San Bernardino, California, terrorist attack (see 1512100032 and 1603290059).
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American Civil Liberties Union Legislative Counsel Neema Singh Guliani said there's not a whole lot of information about Wray's views on encryption, unlike his views from testimony on surveillance and torture. "I think there are questions about what his position is [on encryption] and certainly I would anticipate members would ask about that during the confirmation process," she said. She said he's one unknown among several Trump administration individuals who have made prior statements on encryption that have raised concerns.
Guliani pointed to comments Attorney General Jeff Sessions made during his confirmation process, saying he didn't take a firm position against back doors (see 1701240003). During the presidential campaign, Trump indicated he didn't support Apple's fight against the FBI on encryption (see 1611090016, 1612120026 and 1701030008), she said. Historically, the FBI director has played an important role in that debate and better understanding Wray's approach to encryption and other issues will be important, said Guliani. No hearing has been set for his confirmation.
Ryan Hagemann, Niskanen Center director-technology policy, said senators should inquire about Wray's experiences dealing with encryption from a law enforcement perspective. "I would imagine that some of them will also want to press him on how he believes the FBI should handle the issue in the future, especially as more and more communications are encrypted," emailed Hagemann. If Wray follows Comey's perspective on encryption -- which received "negative attention" from tech and privacy communities -- "I think it will likely result in another contentious and ultimately unproductive mudslinging contest."
Wray, a King & Spalding attorney nominated three weeks ago, should seek reconciliation with civil society and tech industry, said Hagemann, or seek other alternatives like the creation of the Digital Security Commission proposed last year by House Homeland Security Chairman Michael McCaul, R-Texas, and Sen. Mark Warner, D-Va. The proposal would have established an expert working group to examine the encryption debate (see 1608150061). A House working group report issued in December said weakening encryption would work against U.S. interests (see 1612210005 and 1612200073).
Access Now Policy Counsel Drew Mitnick said he doesn't know of any public statements Wray has made specifically on encryption, but pointed to Wray's testimony before the Senate Judiciary Committee during his 2003 confirmation process to be assistant attorney general in DOJ's Criminal Division. Then, Wray ranked cybercrime lowest among priorities such as stopping terrorism, corporate fraud, gun crime, drug trafficking, public corruption and espionage. Mitnick said the FBI needs to acknowledge that strong encryption is fundamental to the internet, underlying communications, commerce, health data and protection electoral systems.
"Wray has the opportunity to promote the indispensability role of strong encryption," said Mitnick. "Before his confirmation hearings, the Justice Department has announced it will ask for additional funds for the FBI to address encryption. If confirmed, we hope Christopher Wray will be cautious in his approach to encryption and provide greater transparency into how the FBI uses its resources to undermine secure technology."
Last week, Deputy Attorney General Rod Rosenstein spoke during a Senate Appropriations subcommittee DOJ budget hearing about the "going dark" problem, which is Comey's description of law enforcement's inability to access digital data in an investigation. "This phenomenon ... severely impairs our ability to conduct investigations and bring criminals to justice," he told senators. "When there is a legitimate law enforcement need to access electronic information and when we have a court order or other legal authority, public safety is jeopardized when we're unable to obtain that relevant information." He said the proposed DOJ budget for FY 2018 provides an extra $98.5 million to fight terrorism, espionage and cybersecurity threats.
Shortly after Trump nominated Wray, TechNet CEO Linda Moore said in a statement the confirmation process should explore his "views on digital privacy rights, encryption technologies, and needed reforms to the Electronic Communications Privacy Act that account for modern advances in cloud computing."