Incoming Biden Administration Officials Should Change Course on Encryption

To have privacy and security in the digital world, encryption is an indispensable ingredient. Without it, we’re all at risk of exploitation—by authoritarian governments, over-reaching police, nosy corporations, and online criminals.

But for some years now, federal law enforcement has paid lip service to “cybersecurity,” while actually seeking to make us all less secure. Officials like former Attorney General William Barr, FBI Director James Comey and numerous others have claimed that widespread encryption poses a severe danger to investigations because of the risk of “going dark,” and have called on technology companies to design secure systems that allow the government to access the contents of encrypted data upon request. But it just isn’t possible to combine secure, encrypted systems with a special “backdoor” for law enforcement to gain access, no matter what you call it. 

There are no golden keys and no magic bullets. It’s time to have law enforcement and intelligence officials who recognize that and say it publicly. Unfortunately, key personnel that have already been selected for the new administration of President Biden don’t have an inspiring history on this topic.

Let’s start with FBI Director Christopher Wray, who is continuing on from the Trump Administration as part of a standard ten-year term. He’s stated many times that law enforcement should be granted exceptional access to encrypted conversations, and has described “user-controlled default encryption” as a “real challenge for law enforcement.”

Avril Haines, who has been confirmed as the new Director of National Intelligence, was part of a group of experts sponsored by the Carnegie Institute for Peace to jump-start a more “pragmatic and constructive” debate on encryption. The Carnegie group’s report was released in 2019, and for advocates of encryption and privacy, it was disappointing. Instead of acknowledging the technological realities of encryption, it punted on a number of important questions and offered a variant of a “key escrow” scheme for encrypted devices, a discredited approach that been proposed, and rightly rejected, for decades.

Lisa Monaco, President Biden’s nominee for Deputy Attorney General, was also a co-author on the Carnegie report. Attorney General Merrick Garland, also still unconfirmed, has no clear record on encryption, but has a long record as a federal prosecutor.

Regardless of officials’ backgrounds, a new presidential administration is a chance for a new path forward. We’ve already sent our transition memo to the Biden team, recommending that the new president adopt a formal policy in favor of encryption and disavowing any attempts to weaken digital security, including introducing encryption backdoors. These key officials must repudiate their misguided statements that weakening encryption and computer security is needed for public safety. It isn’t, and it never has been.