US Senate Democrats may hesitate to expand cybersecurity enforcement under Trump, Cornyn aide says

Originally Published on MLex on December 8, 2016. Author: Joshua Sisco

Fear and uncertainty surrounding how the incoming administration of US President-elect Donald Trump would use expanded law enforcement power to combat hacking and other cybersecurity threats may cause some centrist Democrats in Congress to retreat from supporting an expansion of such power, a US senator’s aide said on Thursday.

Even “law enforcement-minded” Democrats may hesitate to support expanding federal investigators’ authority to combat international cybersecurity threats, said Carter Burwell, deputy chief counsel to US Senator John Cornyn, a Texas Republican who sits on the Senate Judiciary Committee.

Some of his colleagues “from across the aisle are retreating from the middle ground,” Burwell on a panel at a conference* in Washington, DC.

Prior to the panel discussion, Leslie Caldwell, assistant attorney general for the US Justice Department’s criminal division, addressed the audience at the Center for Strategic and International Studies, calling for changes in US law to address the problem of law enforcement access to electronic evidence overseas.

Caldwell noted recent successes in combatting digital threats, including convictions and extraditions of hackers stealing and trafficking in stolen information.

Rapidly advancing technology, especially in data encryption, however, often puts critical evidence outside the reach of federal investigators, Caldwell said. “Our occasional success in accessing information protected by seemingly ‘warrant-proof encryption’ is unpredictable and inadequate. There are devices in evidence lockers across the country that remain locked.”

Last year, Apple famously resisted a federal judge’s order that it build special software to unlock an iPhone used by one of the shooters in last year’s terrorist attack in San Bernardino, California.

Federal investigators ultimately were able to access the phone’s contents, leaving the broader implications of privacy and security unresolved.

Microsoft has also entered the fray, challenging a July 2014 ruling by the US District Court in New York that required it to provide access to customer e-mails stored on servers in Dublin, Ireland.

Microsoft asserted that a US search warrant cannot reach its overseas operations even if the data at issue belongs to a US citizen, and also that the US should seek the information via a Mutual Legal Assistance Treaty, or MLAT, in place with Ireland. In July, the Second Circuit Court of Appeals agreed with Microsoft.

These issues “pose policy challenges [and] we need to develop policy responses,” Caldwell said. Legislation addressing the public safety implications of the Second Circuit’s decision is in the works, she said.

A legislative fix however, is not likely in the near future, Burwell said: Though Republicans maintain a majority in the Senate, the margin is slim and the issue does not have clear support along party lines.

With US Senator Diane Feinstein of California set to take over as the Judiciary Committee’s top Democrat from ranking member Patrick Leahy of Vermont, he said, the focus could shift to expanded power for law enforcement. The unpredictability surrounding the incoming Trump administration, however, makes anything but guesswork difficult, he said.

Furthermore, other issues, including immigration and filling the vacancy on the US Supreme Court, will take precedence, Burwell said.

Jim Lewis, a senior vice president and director of the Center for Strategic International Studies, which hosted the event, said during the panel discussion that the fundamental question is: “Do you trust the government?”