By Sadie Gurman, Dustin Volz and Tripp Mickle
WASHINGTON -- When Attorney General William Barr returned to the
Justice Department last year, law-enforcement officials briefed him
on how encryption and other digital-security measures were
hindering investigations into everything from child sex abuse to
terrorism.
Mr. Barr was surprised and puzzled, according to people familiar
with the meeting. The government was struggling with similar
problems when he first served as attorney general nearly 30 years
ago, he told advisers. Why had they not been solved?
With a series of speeches, a sharply worded plea to Facebook
Inc. Chief Executive Mark Zuckerberg and, now, a direct challenge
to Apple Inc., Mr. Barr has intensified a long-running fight
between law enforcement and technology companies over encrypted
communications, potentially setting up a showdown with Silicon
Valley. Some agents at the Federal Bureau of Investigation also
worry his forceful approach could sour valuable relationships they
have fostered with technology companies.
Mr. Barr is disturbed not only by the potential harm that
encryption technologies can cause law-enforcement investigations
but also by what he sees as tech companies' ability to essentially
defy court orders, people close to him said.
He views the current conflict as similar to one that was
emerging when he led the Justice Department in the early 1990s,
they said, when law enforcement's wiretapping efforts were
disrupted by newly emerging digital technology.
Some within the department have praised Mr. Barr, who is also a
former top telecom lawyer, for prioritizing the issue and calling
on Apple to help the government unlock two iPhones belonging to a
Saudi aviation student who killed three people at a Navy base in
Pensacola, Fla. He said authorities had secured a court order
within a day of the Dec. 6 shooting allowing them to search the
phones but hadn't received substantial help from the technology
giant.
An Apple spokesperson disputed that characterization, saying the
company's "responses to their many requests since the attack have
been timely, thorough and are ongoing."
"We don't want to get into a world where we have to spend months
and even years exhausting efforts when lives are in the balance,"
Mr. Barr said at a news conference on Monday. "We should be able to
get in once we have a warrant that establishes that criminal
activity is probably under way."
The FBI said its technical experts agreed that further outreach
to Apple was needed after efforts to access the phones were
unsuccessful. Mr. Barr and FBI Director Christopher Wray have been
publicly in lockstep. FBI Deputy Director David Bowdich, who joined
the attorney general on Monday, said he wanted to echo Mr. Barr's
points about law enforcement's struggles with encryption. But
notably, Mr. Bowdich also highlighted the FBI's partnerships with
tech companies.
Some senior FBI officials say privately they are worried that
Mr. Barr's sharp tone could undermine relationships with technology
companies they have worked hard to develop, people familiar with
the matter said.
The bureau relies on close partnerships with tech firms in a
range of investigations, with companies complying with legal
requests for data and troubleshooting technical obstacles that
agents may struggle with, current and former officials said. Large
tech firms also are frequently victims of crimes with
national-security or counterintelligence implications, including
cyberattacks and employee espionage, and law-enforcement agencies
want those companies to report such issues, the officials said.
Some FBI officials were stunned by Mr. Barr's rebuke of Apple,
the people familiar with the matter said, and believe the Pensacola
case is the wrong one to press in the encryption fight, in part
because they believed Apple had already provided ample assistance
to the probe.
The question for FBI officials is always whether a public spat
with a major technology company is "worth the cost in terms of
time, effort and damage to the FBI's relationship with the tech
sector," said former FBI general counsel Jim Baker, who was
involved in a high-profile 2016 clash with Apple over a locked
phone also belonging to a dead terrorist. The standoff was resolved
when a contractor hired by the bureau was able to get into the
phone.
Apple, too, was surprised by Mr. Barr's stance and is
strategizing about its next steps, including the possibility of a
legal fight, according to a person familiar with the matter.
Senior Justice Department officials said they view their push as
a necessary step in investigating the Florida terrorist attack. The
gunman's locked phones could offer valuable clues about whether he
conspired with others overseas, they said.
Mr. Barr became the top lawyer at a big firm -- GTE, now Verizon
Communications Inc. -- in 1994, when Congress passed the
Communications Assistance for Law Enforcement Act, requiring
telecom companies to enable their services and equipment to comply
with law-enforcement surveillance requests. He has said he finds it
absurd that tech companies would be exempt from such rules.
Based on his experience in telecom, Mr. Barr said in July, he
reserves "a heavy dose of skepticism for those who claim that
maintaining a mechanism for lawful access would impose an
unreasonable burden on tech firms, especially the big ones."
Mr. Barr and other department officials have given little public
indication of their next move. The administration has begun
discussing ways to solve the problem through legislation, Mr. Barr
said.
Administration officials have an ally in Sen. Lindsey Graham
(R., S.C.), chairman of the Senate Judiciary Committee.
"You're going to find a way to do this or we're going to do this
for you, " Mr. Graham told tech companies at a hearing late last
year.
While lawmakers of both parties have been openly critical of
Apple, there is little indication of broad bipartisan interest in
mandating government access to encrypted communications.
Apple CEO Tim Cook has recently amplified the company's defense
of privacy, touting it in ads. The public's understanding of
privacy and encryption issues has deepened, too, in the wake of
hacking scandals. And any court challenge the Justice Department
makes to Apple's policies risks a decision that makes it even
harder for the department to gain access to phones.
"There's a risk that you wind up with a situation worse than the
status quo," said Michael Chertoff, a former secretary of the
Department of Homeland Security and co-founder of a strategic
advisory firm that has worked with tech companies, including Apple,
on security issues.
Mr. Chertoff said a court ruling against the Justice Department
could limit access to widely available forensic tools that allow
investigators to get into phones in some situations, for instance.
"It's not clear to me why this fight is advantageous to anybody,"
he said.
Write to Sadie Gurman at sadie.gurman@wsj.com, Dustin Volz at
dustin.volz@wsj.com and Tripp Mickle at Tripp.Mickle@wsj.com
(END) Dow Jones Newswires
January 17, 2020 05:44 ET (10:44 GMT)
Copyright (c) 2020 Dow Jones & Company, Inc.
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