Senators Lindsey Graham (R-S.C.), Tom Cotton (R-Ark.) and Marsha Blackburn (R-Tenn.) have introduced the Lawful Access to Encrypted Data Act, a bill that would require tech companies to assist law enforcement in executing search warrants that seek encrypted data.  The bill would apply to law enforcement efforts to obtain data at rest as well as data in motion.  It would also apply to both criminal and national security legal process.  This proposal comes in the wake of the Senate Judiciary Committee’s December 2019 hearing on encryption and lawful access to data.  According to its sponsors, the purpose of the bill is to “end[] the use of ‘warrant-proof’ encrypted technology . . . to conceal illicit behavior.”

The bill has three main provisions:

  • First, it would allow courts to order device manufacturers, operating system providers, remote computing service providers, communication service providers, and others, to assist the government in accessing information sought by a search warrant.  Such assistance may include decrypting or decoding information, “unless the independent actions of an unaffiliated entity make it technically impossible to do so.”
  • Second, certain entities would be required to “ensure that [they have] the ability to provide [this] assistance.”
  • Third, under certain circumstances, the Attorney General would be empowered to issue directives to service providers and device manufacturers, requiring them to report “any technical capabilities that [are] necessary to implement and comply with anticipated court orders,” and a timeline for developing and deploying those capabilities.

In addition, this bill would establish a “prize competition” to “incentivize and encourage research and innovation into solutions providing law enforcement access to encrypted data pursuant to legal process.”  Finally, the bill would fund a grant program and call center for law enforcement digital evidence training and assistance.

The bill was introduced on June 23, 2020, and referred to the Senate Judiciary Committee.

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Photo of Trisha Anderson Trisha Anderson

Trisha Anderson, an experienced national security and cybersecurity lawyer, advises clients on white collar investigations and national security issues, including national security surveillance and law enforcement compliance and litigation, cybersecurity and data privacy, and CFIUS, with a particular focus on information and communications…

Trisha Anderson, an experienced national security and cybersecurity lawyer, advises clients on white collar investigations and national security issues, including national security surveillance and law enforcement compliance and litigation, cybersecurity and data privacy, and CFIUS, with a particular focus on information and communications technologies.

Ms. Anderson rejoined the firm after over a decade of service in the federal government. She held senior positions at the Department of Justice and the Department of the Treasury. Most recently she served as Principal Deputy General Counsel at the Federal Bureau of Investigation, where she handled complex and sensitive matters relating to national security and cyber intrusions.