Op-ed: The Debate Over Encryption: Stopping Terrorists From ‘Going Dark’

While the terrorist attacks in Paris, San Bernardino, Calif., and Garland, Texas, have brought discussions about encryption to the front pages, criminals in the U.S. have been using this technology for years to cover their tracks. The time has come for Congress and technology companies to discuss how encryption—encoding messages to protect their content—is enabling murderers, pedophiles, drug dealers and, increasingly, terrorists.

Consumer information should be protected, and the development of stronger and more robust levels of encryption is necessary. Unfortunately, the protection that encryption provides law-abiding citizens is also available to criminals and terrorists. Today’s messaging systems are often designed so that companies’ own developers cannot gain access to encrypted content—and, alarmingly, not even when compelled by a court order. This allows criminals and terrorists, as the law enforcement community says, to “go dark” and plot with abandon.

Leaving aside the terrorism challenges, encryption is affecting the investigations of kidnapping, child pornography, gang activity and other crimes. Federal, state, local and tribal law-enforcement officers can obtain legal authority to conduct electronic communications surveillance on terrorists and criminals. But encrypted devices and applications sometimes block access to the data. This means that even when the government has shown probable cause under the Fourth Amendment, it cannot acquire the evidence it seeks.

Technology has outpaced the law. The core statute, the Communications Assistance for Law Enforcement Act, was enacted in 1994, more than a decade before the iPhone existed. The law requires telecommunications carriers—for instance, phone companies—to build into their equipment the capability for law enforcement to intercept communications in real time. The problem is that it doesn’t apply to other providers of electronic communications, including those supporting encrypted applications.

Federal Bureau of Investigation Director James Comey has said that one of the two Garland, Texas, shooters who died carrying out an attack on a Muhammad art exhibit in May exchanged 109 messages with an operative overseas. “We have no idea what he said,” Mr. Comey told the Senate this month, “because those messages were encrypted.” He described this as a “big problem”—and I couldn’t agree more.

Last month Manhattan District Attorney Cyrus R. Vance Jr. released an in-depth report specifically on “smartphone encryption and public safety.” Many cellphones, including those designed by Apple and Google, now encrypt by default all the data they store, which is accessible only with a passcode.

No one, not even the manufacturer, can access a passcode-locked phone. Apple has even touted this as a feature, telling customers that “it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices.” The report states that “passcode-protected devices render lawful court orders meaningless and encourage criminals to act with impunity. The ultimate losers in this equation are crime victims.”

The authors conclude: “Congress should enact a statute that requires any designer of an operating system for a smartphone or tablet manufactured, leased, or sold in the U.S. to ensure that data on its devices is accessible pursuant to a search warrant. Such a law would be well within Congress’s Commerce Clause powers, and does not require costly or difficult technological innovations.”

The challenges presented by encryption extend to financial transactions. In August Sen. Elizabeth Warren wrote letters to six federal agencies voicing concerns that banks were using Symphony, an encrypted messaging system that could prevent regulators from detecting illegal activities. The letter came shortly after New York’s top banking regulator, the New York State Department of Financial Services, raised the same concern with several major banks and Symphony’s developer.

In response, the banks agreed to store decryption keys with independent custodians, and Symphony agreed to retain electronic communications for seven years. All parties also agreed to a periodic review process to make sure that oversight keeps in sync with new technologies.

It would seem to me that daily financial flows shouldn’t command more attention than terrorist or criminal communications, yet here we are. Although the agreement described above may not be the solution for all encrypted communications, it does show that cooperative solutions are possible.

I and other lawmakers in Washington would like to work with America’s leading tech companies to solve this problem, but we fear they may balk. When Apple objected to a recent court order in a New York criminal case requiring it to unlock an iPhone running iOS 7—an operating system that Apple can unlock—the company refused, arguing: “This is a matter for Congress to decide.” On that point, Apple and I agree. It’s time to update the law.

Mr. Burr, a Republican senator from North Carolina, is the chairman of the Senate Select Committee on Intelligence.

This op-ed was published by the Wall Street Journal.