Sec. 601. Findings
466 words·~2 min read·
/bill/116/s/4051/is/section-601·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Congress finds the following: The rapidly growing use of warrant-proof encryption in everyday devices, platforms, and systems allows illegal actors engaged in dangerous criminal activity—including child sexual abuse, terrorism, and international narcotics trafficking—to use encryption to shield their illicit activities from authorities. Because of warrant-proof encryption, the government often cannot obtain the electronic evidence and intelligence necessary to investigate and prosecute threats to public safety and national security, even with a warrant or court order.
This provides a lawless space that criminals, terrorists, and other bad actors can exploit for their nefarious ends. Many service providers, device manufacturers, and application developers who use encryption fail to implement technology that would allow the government to obtain electronic evidence necessary to investigate and prosecute threats to public safety and national security. The Fourth Amendment to the Constitution of the United States strikes a balance between the individual citizen’s reasonable expectation of privacy on one hand, and on the other, the legitimate need for the government to gain access to the most intimate spaces in citizens’ lives in order to protect the public from criminal actors.
The Framers of the Constitution provided specific barriers to government intrusion into the individual’s private, intimate space—namely, that the government must show by probable cause that evidence of a crime exists in that intimate space, and must have a neutral magistrate, detached from the law enforcement interest, approve law enforcement’s request and issue a warrant. Once the government satisfies the burden of showing probable cause to a neutral magistrate, the government is entitled to search and seize evidence of a crime in an individual’s private space.
That careful balancing of interests established by the Framers has continued to be calibrated throughout the history of the United States as different challenges have arisen, including, most notably, technological advances in daily life. For example, Congress has imposed additional statutory requirements that the government must meet and that a judge must find satisfied before a court can authorize interception of communications. But the individual’s right to privacy has never been absolute.
If not addressed, criminal anonymity actuated by end-to-end encryption technology will continue to pose a serious risk to the public. Nevertheless, advances in technology continue without due consideration of issues of lawful access. Moreover, very little, if any, resources from the private sector or from educational and research institutions are devoted to finding technological solutions to providing lawful access within different encrypted technological platforms. More resources should be devoted to incentivizing the best minds in the United States to research the issues described in this section and decide how to best provide the most secure products and services to customers while also providing law enforcement access to information the government needs to investigate criminals seeking to do the public harm and to protect national security.