By Aaron Kesel
In the name of protecting the children, U.S. lawmakers and the Department of Justice want to ban end-to-end encryption, opening Internet users to a host of attacks on their privacy by not only the government but also malicious hackers.
Attorney General William Barr is claiming he wants to protect the children, but his former law firm, Kirkland & Ellis, protected Jeffrey Epstein—one of the most serial child sex traffickers. And it turns out Barr’s own father, Donald Barr, was the headmaster of an elite New York City school that hired college dropout Epstein to teach math and physics.
Last week, Barr expressed at the White House Summit on Human Trafficking that encryption was aiding human traffickers. He said:
“We live in a digital age, and like everyone else, human traffickers are relying increasingly on digital communication and the Internet … and more and more, the evidence we rely on to detect and to deal with these predators is digital evidence,” Barr said. “However, increasingly, this evidence is being encrypted.
We all recognize that encryption is important in the commercial world to protect consumers like us from cybercriminals, but now, we’re seeing military-grade encryption being marketed on consumer products like cellphones and social media platforms and messaging services, and that means that we cannot get access to this data.
We just can’t have chatrooms and websites that are involved in grooming children victims or selling trafficked women — sites that are impenetrable to law enforcement—and we have to do something about this.”
Barr has previously said that technology companies using end-to-end advanced encryption and other security measures are effectively turning devices into “law-free zones.”
“As we use encryption to improve cybersecurity, we must ensure that we retain society’s ability to gain lawful access to data and communications when needed to respond to criminal activity,” Barr said in his keynote address at the International Conference on Cybersecurity at Fordham University Law School in Manhattan.
The ACLU has stated strongly that Barr doesn’t understand the benefits of encryption and that they outweigh the negatives of its use.
“Encryption reliably protects consumers’ sensitive data,” Brett Max Kaufman, a senior staff lawyer in the Center for Democracy at the American Civil Liberties Union said. He added, “There is no way to give the F.B.I. access to encrypted communications without giving the same access to every government on the planet. Technology providers should continue to make their products as safe as possible and resist pressure from all governments to undermine the security of the tools they offer.”
Now Congress is seeking to ban companies from using end-to-end encryption and impose penalties for businesses that use it. Barr, Sen. Lindsey Graham (R-SC), and Sen. Senator Richard Blumenthal (D-CT) are targeting encryption with a new draft bill called the “Eliminating Abusive and Rampant Neglect of Interactive Technologies (or EARN IT) Act.” The act would modify the Communications Decency Act’s Section 230 to make companies liable in state criminal cases and civil lawsuits over child abuse and exploitation if they don’t follow practices set by a national commission, according to Engadget.
That commission would be known as the “National Commission on Online Child Exploitation Prevention,” would be comprised of 15 people, and led by the Attorney General who just so happens to be Barr himself. This new government organization would also include the Chairman of the Federal Trade Commission, the Secretary of Homeland Security, and 12 others handpicked by members of Congress. The Commission would be tasked with recommending “best practices for providers of interactive computer services regarding the prevention of online child exploitation conduct.”
Riana Pfefferkorn, a member of the Stanford Law School’s Center for Internet and Society, wrote in a blog post that the bill threatens the constitutional rights of online communication platforms and their users in a solid evaluation of the bill. Pfefferkorn explained:
While the EARN IT Act is ostensibly aimed at Section 230, it’s actually a sneaky way of affecting [encryption laws] without directly amending it. This bill has a number of extremely serious problems, too many to fit into one blog post. It is potentially unconstitutional under the First, Fourth, and Fifth Amendments, for one thing.
If passed, the law would also require companies like Telegram to allow backdoor government access to encrypted information which would also provide a “golden key” vulnerability for malicious hackers—something that Barr doesn’t appear to understand.
The EFF wrote:
Throughout his term as Attorney General, William Barr has frequently and vocally demanded “lawful access” to encrypted communications, ignoring the bedrock technical consensus that it is impossible to build a backdoor that is only available to law enforcement. Barr is far from the first administration official to make impossible demands of encryption providers: he joins a long history of government officials from both parties demanding that encryption providers compromise their users’ security.
Even government officials in the FBI and DOJ aren’t convinced Barr is doing the right thing by seeking to ban encryption, according to the Wall Street Journal.
In 2018, the FBI lied and inflated the number of encrypted phones it said were connected to ongoing criminal investigations. The Bureau incorrectly stated time and time again that 7,800 phones were blocked from investigators. The Washington Post later reported that those figures were more like 1,000 to 2,000. The FBI blamed a “programming error” for the discrepancy.
Modern law provides enough legal means making EARN IT an unnecessary escalation on Section 230 which protects small companies more than the big giants. Currently, if an Internet company finds that an individual or group is using its platform to distribute child sexual abuse material, federal law already requires them to provide that information to the National Center for Missing and Exploited Children and to cooperate with law enforcement investigations.
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