back to article Feinstein-Burr's bonkers backdoor crypto law is dead in the water

A proposed piece of US legislation that would have required American tech companies to cripple the encryption in their products is dead in the water. The daft bill was championed by Senators Richard Burr (R‑NC) and Dianne Feinstein (D‑CA) in February following an increasingly rancorous debate over encryption, and at one point …

  1. Anonymous Coward
    Anonymous Coward

    dead in the water

    Don't you believe it. The Establishment want these powers. The Bureaucrats want them to have those powers. The same bad ideas will be back in another form soon. Just like the Snoopers Charter in the UK.

    But next time the War on Freedom (tm) will be advanced by words quietly added to the back of a bill about something so dull and innocuous that nobody will read it or notice.

    1. tom dial Silver badge

      Re: dead in the water

      For now. All the government really needs is a law that requires companies to assist in executing relevant and proper court orders to the extent they can, with compensation for the direct cost of doing so. Depending on the outcome of pending appeals around use of the All Writs Act, they might not need even that.

      There is absolutely no constitutional issue here, and any mention of either mass or other surveillance in this connection is misdirection.

      1. Doctor Syntax Silver badge

        Re: dead in the water

        "relevant and proper court orders to the extent they can, with compensation for the direct cost of doing so"

        Who gets to decide on relevance and propriety? (Note that you wording suggests the possibility of irrelevant and//or improper orders.)

        What about indirect costs which could vastly exceed direct costs if such compliance affected the marketability of the company's products?

        1. tom dial Silver badge

          Re: dead in the water

          The courts would decide relevance and propriety, as they have done for the last 225 years in the US and longer than that, I think, in Britain. As they would in the case of the related search warrant.

          A company might try for compensation of indirect costs. I do not think it likely they would succeed, but admit the possibility that I am mistaken in that.

          Nothing very novel is involved here.

          1. Anonymous Coward
            Anonymous Coward

            Re: dead in the water

            "The courts would decide relevance..."

            And it would be the FISA court doing the deciding. If you're OK with that then you haven't been paying attention.

            1. tom dial Silver badge

              Re: dead in the water

              In general it would be ordinary courts of first jurisdiction issuing search warrants, not the FISC, which has as it primary purpose oversight of foreign intelligence operations. The search warrant for Syed Farook's iPhone, as an example, was issued by a federal magistrate judge in California. The several hundred warrants the Manhattan DA would like help executing were issued by New York state courts and probably none relates to national security matters.

              Feinstein and Burr's draft was flawed, but the intent behind it was in no way inherently inconsistent with the US Constitution and Bill of Rights.

        2. tom dial Silver badge

          Re: dead in the water

          In the past, courts have made irrelevant or improper orders, including warrants. There is no reason to think there won't be more issued in the future. Courts, being staffed by people, all imperfect, sometimes will make mistakes or be carried away by some enthusiasm and do things they should not. For that reason there are appellate courts, and the recipient of a court order normally would enter an appeal if he or she thought it invalid. As Apple did in the recent case of Syed Farook's county supplied iPhone.

    2. Paul 129
      Devil

      Re: dead in the water

      Kinda like Trusted computing, DRM and all that. We won those battles!

      Oh Wait!

      1. Anonymous Coward
        Anonymous Coward

        Re: dead in the water

        The way to win against DRM is to not play. DRM is a chain from source to your screen, but if you avoid the source (i.e. pirate) the chain is worthless.

      2. Anonymous Coward
        Anonymous Coward

        Re: dead in the water

        Kinda like Trusted computing, DRM and all that. We won those battles!

        Oh Wait!

        Do not give up hope, the battle may be lost, but the war continues ;)

  2. NoneSuch Silver badge
    Devil

    Does anyone think Donald Trump or Hillary Clinton will make this situation any better?

    Fight them now, or you have no one to blame.

    1. RIBrsiq
      Meh

      >> Fight them now, or you have no one to blame.

      And elect whom, exactly? John McAfee...? The choice is clearly either Trump or Hillary.

      "None of the above" does not work. Not short-term, at any rate: maybe there's a place for a third party in the US system, medium-to-long term. Though as the disaffected of either party seem to be rather far from center, I don't see how that would work. Unless the US political continuum is more of a ring than a straight line -- or whatever is the appropriate closed vs. open topology, according to the applicable number of dimensions.

      1. Rich 11 Silver badge

        Unless the US political continuum is more of a ring than a straight line -- or whatever is the appropriate closed vs. open topology, according to the applicable number of dimensions.

        A sphincter.

        1. RIBrsiq
          Thumb Up

          >> A sphincter.

          Aptly-put, I suspect and fear.

          Unfortunately, the rest of the world is rather down the gravity well from said entity, so to speak.

      2. MacroRodent
        Holmes

        no hope

        "None of the above" does not work. Not short-term, at any rate: maybe there's a place for a third party in the US system, medium-to-long term.

        Won't happen until you switch to a proportional voting system. And that will never happen in the U.S. because both the GOP and the Democrats understand it would erode their power.

        1. Charles 9 Silver badge

          Re: no hope

          So in other words, the only way to get a third party into power in the United States is to get a third party into power in the United States.

          George was right. Parties are corrupting. Unfortunately, parties are also tribes, and tribes are standard human behavior.

  3. Dadmin

    Take THAT!

    You stupid, bitch! And you too Senator Feinstein!

    Sure, it will come back, but we've already locked our phones, so GOOD LUCK getting in there. You can't stop code! Go fork yourself!

    See you when the Quantum computers arrive, THEN we can talk about security once more.

    1. Charles 9 Silver badge

      Re: Take THAT!

      Um, what makes you think they don't already have one hidden away in that data center in Utah?

  4. Sgt_Oddball Silver badge

    *cough*

    Buwaahahahahahahahahahahhahhahahhahahhahahhah.........hahahahahahahahahahahahahha!!!

    And breathe. So who thinks America's tech businesses had a quiet word too? Along the lines of no one will ever buy anything from us ever again if this gets passed, and that it'll only apply to America. So no-one else would have broken encryption and thus there's pretty much no point. I mean seriously, there's enough smart people outside of America who'd be willing to work on encryption and it wouldn't take long for that to happen.

    1. tom dial Silver badge

      Re: *cough*

      It is not at all obvious that a requirement that a producer assist with search warrant execution, or even actually providing such assistance, would render its products unsalable. It seems likely that the producer least able to give effective assistance would experience increased demand, although I suspect that in many places, including the US, the difference would not be large.

      The presumption that such a requirement would apply only in the US also is suspect. Law enforcement officials elsewhere certainly would like to be able to access smart phone and similar computer stored data. Indeed, there is no obvious reason to think such requirements are not already in place somewhere.

  5. a_yank_lurker Silver badge

    Round 2

    Tech won round 2 over America's "native criminal class" (Mark Twain). But the criminals will not give up until the US is another full-blown banana republic like Venezuela. They do not care about what is right only about power for them and their cronies.

    1. fnj

      Re: Round 2

      @a_yank_lurker:

      the criminals will not give up until the US is another full-blown banana republic

      Heh, there's no danger of that. A banana republic has to actually produce a product that is in demand to export. Not just mayhem, death and destruction.

      1. Anonymous Coward
        Anonymous Coward

        Re: Round 2

        "A banana republic has to actually produce a product that is in demand to export. Not just mayhem, death and destruction."

        Just look at the middle east. There's a nice market for that kind of export right there.

  6. Mark 85 Silver badge

    Burr and Feinstein

    Pity they can't be taken out of the water...

    I find it peculiar that she wants to fight the companies that pay the wages to her constituents voters. Or perhaps being in her district required them to check their brains at the California border.

    1. Michael H.F. Wilkinson

      Re: Burr and Feinstein

      The Feinstein-Burr proposal is a prime example of bi-partisan stupidity.

      There are many more, alas.

  7. DCFusor

    Nerd harder

    Won't work, everyone knows the impossibility of their demands - and anyone who has a bank account accessible online knows this is a really bad idea (I checked, my bank will not shut off online access!).

    I'll just leave this here: http://xkcd.com/1425/

    It's not that they don't get it - they won't get it. Wonder what dirt the TLA's have on these officials? Must be juicy.

  8. Herby

    Nothing is safe....

    While congress is in session.

    And so it goes. DiFi (our wonderful senior senator from California) should consult with some industry people, look there are lots of them here in SillyCon Valley. Just a phone call away!

    Apple for instance is in area code 408, and HP (in its many forms) is in the 650 area code (both of which I have here on my multi line home phone!). Local call. Information is '411'. Shouldn't be hard.

    1. Charles 9 Silver badge

      Re: Nothing is safe....

      Only one problem. There's also the matter of Hollywood...ALSO in California AND a significant lobby in its own right. So ask yourself, which part of the state brings in more money to it: Hollywood or Silicon Valley?

      1. BurnT'offering

        Re: which part of the state brings in more money to it: Hollywood or Silicon Valley?

        Assuming that's not a rhetorical question: http://www.asymco.com/2015/01/22/bigger-than-hollywood/

        1. Charles 9 Silver badge

          Re: which part of the state brings in more money to it: Hollywood or Silicon Valley?

          That's still a bit hit or miss since the article doesn't bother to isolate US-only and in particular California-only numbers, which is important in terms of political influence. Is Apple bigger than Hollywood in California?

      2. DropBear
        WTF?

        Re: Nothing is safe....

        "which part of the state brings in more money to it: Hollywood or Silicon Valley?"

        Seriously? Everyone knows there's no money at all in Hollywood - it's a purely non-profit outfit...

        1. Charles 9 Silver badge
          FAIL

          Re: Nothing is safe....

          Profits have absolutely nothing to do with lobbying power.

  9. fnj

    Extension

    Now when can we have Burr and Feinstein lying stone-cold dead in the water as political entities? Now that would be some real progress, and a useful object lesson to tyranny.

    Just chopping heads off the monster Hydra as they regenerate endlessly is not enough. It has to be plain that tyranny has a cost.

    P.S. - I plainly specified "as political entities", not "as human corpses", so let's not have any whinging and cries of "hate speech".

    1. Swarthy Silver badge
      Trollface

      Re: Extension

      Although.....

  10. Stoneshop Silver badge
    FAIL

    US senators' bill won't make it to the floor of Congress

    It should.

    So that they all can wipe their feet on it.

    It would be even better if it was outside on the steps, so that the public can have a go too.

    1. Oengus

      Re: US senators' bill won't make it to the floor of Congress

      I was thinking of wiping another part of the anatomy...

      1. Stoneshop Silver badge
        Holmes

        Re: US senators' bill won't make it to the floor of Congress

        I was thinking of wiping another part of the anatomy...

        Their larynx?

        Most of their unsavourable excrement comes out through there.

  11. Anonymous Coward
    Anonymous Coward

    Like the terminator, it'll be back

    When the powers that be really want to pass something, they sneak it into a "must pass" bill as an amendment. I wouldn't be shocked if it ends up some spending authorization bill for homeland security or something like that, where congressmen in an election year can't be seen voting against a bill everyone supports. Though that's made harder by the fact Obama is on his way out, so he could veto it without repercussions. Whether he would though, that's another matter.

    1. Charles 9 Silver badge

      Re: Like the terminator, it'll be back

      He might if they also try to tack on an attack on the FCC in the same bill. Plus he DOES have a history of vetoing poisoned bills.

  12. Blake St. Claire

    The Floor of Congress?

    Being picky, usually we say "The Floor of the House (of Representatives)" or "The Floor of the Senate."

    Congress is both houses. Rather like Parliament. IIRC you don't say, e.g., that the PM is the leader of Parliament; he's the leader of the House of Commons. (Unless you don't really count the House of Lords, then I suppose the PM is the leader of Parliament.)

    And in the case of Burr and Feinstein's bill, AFAIK there was never a matching bill in the House.

    1. Chika

      Re: The Floor of Congress?

      "Attention, attention. We are ready to do you now." - Beavis & Butthead Do America

  13. Cynical Observer
    Thumb Down

    Too early to celebrate

    While it's great to see such idiocy consigned to the soulless oblivion that it so richly deserves, we should always remember that this side of the pond has its own selection of home grown idiotic measures. The UK Snoopers Charter is the 200 pound gorilla to the 5 stone weakling that this US bill represented. And unless the opposition parties and Tory rebels find their resolve*, we will have the likes of this to contend with in the not to distant future. From the Independent...

    Snooper's Charter: Tech companies will have to give police 'back-door' access to customers' data.

    * One wonders whether the MP's resolve is sometimes shaped by a quiet word based on information already gathered to date. While one might think so, obviously one could not possibly comment.

    1. Havin_it
      Coat

      Re: Too early to celebrate

      200 lb is very weedy for a gorilla. And 5 stone is a child, or maybe a midget.

      Just sayin'. I'd still pay good money for ringside seats.

  14. John Smith 19 Gold badge
    Gimp

    Data fetishists never sleep.

    They will use any and every murder/explosion/blackmail case to insist that If they had these powers it would not have happened.

    This always comes from the high level spook bureaucrats.

    Find "Thomas Brian Reynolds."

  15. Anonymous Coward
    Anonymous Coward

    Dickhead is

    As dickhead does

  16. Katie Saucey
    Black Helicopters

    Senator Feinstein

    I paused reading right there, and naturally assumed that somewhere in the bill there is a new and idiotic gun restriction stuffed in, just to truly make this bullshit legislation worthy of her signature.

  17. Howard Hanek
    Childcatcher

    Government Intrusion

    I'm waiting for the MPAA to come out with a death by electrocution through the infringing hardware penalty for copyright infringement to be offered up. They think it a much more serious offense than mere national security.

  18. allthecoolshortnamesweretaken

    That bill may be or may not be 'dead', but they are still at it anyway: Someone just snuck warrantless email access into the Senate's secret intelligence bill.

    1. tom dial Silver badge

      National Security Letters are, and have been, abominations. Police, with possible exceptions for exigent circumstances similar to what they have for searches, should be required to obtain permission for metadata acquisition through a formally independent judicial process, as they do for telephone metadata or a pen register under Smith v Maryland.

  19. xj650t
    Mushroom

    All in the name of the "War on Terror"

    An utter waste of the paper it was printed on.

    More people will die from

    a) The common cold

    b) Stepping off the sidewalk

    c) Being shot by their fellow Americans

    d) Choking on a burger

    Than will be saved by decrypting some terrorists phone/communications in the next 10 years.

    1. Anonymous Coward
      Anonymous Coward

      Re: All in the name of the "War on Terror"

      c)(2) Being shot by their own 2 year old kid.

    2. Charles 9 Silver badge

      Re: All in the name of the "War on Terror"

      But they'll declare all those four unpreventable and therefore "acts of God" whereas terrorism will always be considered preventable and a potential existential risk, meaning it MUST be stopped at all costs or the country will be toast.

  20. Long John Baldrick

    Cryptographic Backdoors == Security Sodomy

    See title

  21. Howard Hanek
    Headmaster

    The farce continues

    ......meanwhile in the US pols continue to circumvent security in order to bypass the FOIA and represent the biggest threat to their nation's security with the full knowledge of the bureaucracy.

  22. martinusher Silver badge

    Sorry....

    Unfortunately its Sen. Boxer that's retiring this year -- we, along with the rest of the world, are saddled with Feinstein for at least another couple of years.

    Like I said, sorry.

  23. John Smith 19 Gold badge
    Unhappy

    What is it about this woman

    Who combines the nuttiness of Teresa May with the bonkers ideas of Jacqui Smith?

    Is she the most Right Wing "Democrat" in the house?

    Or just the most Right Wing one we hear about?

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