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.

Tags: data privacy, encryption, Internet of Things (IoT), legislation
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Photo of Alexander Berengaut Alexander Berengaut

Alex Berengaut is a nationally recognized litigator and co-chair of Covington’s Government Litigation practice group. He has served as lead counsel in a range of commercial disputes and government enforcement proceedings, and currently represents several leading technology companies in litigation and compliance matters…

Alex Berengaut is a nationally recognized litigator and co-chair of Covington’s Government Litigation practice group. He has served as lead counsel in a range of commercial disputes and government enforcement proceedings, and currently represents several leading technology companies in litigation and compliance matters relating to data privacy, platform liability, artificial intelligence, and cybersecurity.

In recent years, Alex obtained a series of landmark victories against the federal government in bet-the-company disputes for technology clients. Alex represented TikTok in challenging the Trump Administration’s efforts to ban the app, delivering the winning argument that led the court to enjoin the ban hours before it was set to take effect. He also represented Xiaomi Corporation in challenging the Department of Defense designation that would have blacklisted the company from U.S. financial markets, delivering the winning argument that led the court to enjoin the designation, restoring $10 billion to Xiaomi’s market capitalization.

At the state level, Alex has successfully challenged unconstitutional state legislation and defended against state consumer protection actions. He obtained an injunction blocking Montana’s law banning the TikTok platform, and he secured the outright dismissal of multiple State AG consumer protection lawsuits relating to data privacy and security—a string of victories which resulted in Alex being recognized as Litigator of the Week. 

Alex has served as counsel to Microsoft Corporation in precedent-setting cases involving government surveillance issues, including Microsoft’s landmark challenge to the government’s attempt to compel disclosure of customer emails stored in Ireland using a search warrant; Microsoft’s First Amendment challenge in the Foreign Intelligence Surveillance Court to restrictions on disclosures about government surveillance; and Microsoft’s constitutional challenge to the statute that allows courts to impose gag orders on technology companies, resulting in nationwide reform of the government’s practices under the statute. 

 Alex maintains an active pro bono practice, focusing on trial-level indigent criminal defense and youth immigration matters. From 2017 to 2020, Alex represented the University of California in challenging the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program, ultimately resulting in a 5-4 victory in the U.S. Supreme Court. See Department of Homeland Security, et al. v. Regents of the University of California et al., 140 S. Ct. 1891 (2020).

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Photo of Jim Garland Jim Garland

Jim Garland’s practice focuses on government investigations and enforcement matters, litigation, and cybersecurity. Recognized by Chambers USA as a leading practitioner in both the white collar and cybersecurity categories, Jim draws upon his experience as a former senior Justice Department official to advise…

Jim Garland’s practice focuses on government investigations and enforcement matters, litigation, and cybersecurity. Recognized by Chambers USA as a leading practitioner in both the white collar and cybersecurity categories, Jim draws upon his experience as a former senior Justice Department official to advise clients on sensitive, multidimensional disputes and investigations, often with national security implications. He previously served as co-chair of Covington’s “Band 1”-ranked White Collar and Investigations Practice Group and currently is a member of the firm’s Management and Executive Committees.

Jim regularly represents corporate and individual clients in government investigations and enforcement actions. He has successfully handled matters involving allegations of economic espionage, theft of trade secrets, terrorism-financing, sanctions and export control violations, money laundering, foreign bribery, public corruption, fraud, and obstruction of justice. He has particular expertise advising clients in connection with investigations and disputes involving electronic surveillance and law enforcement access to digital evidence.

Jim has substantial experience litigating high-stakes, multidimensional disputes for clients across a range of industries, including companies in the high-tech, financial services, defense, transportation, media and entertainment, and life sciences sectors. Many of his civil representations have substantial cross-border dimensions or involve parallel government enforcement proceedings in multiple forums.

In conjunction with his investigations and litigation practice, Jim regularly assists clients with cybersecurity preparedness and incident-response matters. He helps clients in assessing security controls and in developing policies and procedures for the protection of sensitive corporate data. He also regularly assists companies in responding to significant cybersecurity incidents, including in connection with criminal and state-sponsored attacks targeting customer and employee data, financial information, and trade secrets.

From 2009 to 2010, Jim served as Deputy Chief of Staff and Counselor to Attorney General Eric Holder at the U.S. Department of Justice. In that role, he advised the Attorney General on a range of enforcement issues, with an emphasis on criminal, cybersecurity, and surveillance matters.

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Photo of Chloe Goodwin Chloe Goodwin

Chloe Goodwin is a litigator and regulatory attorney focused on privacy and technology issues. She represents several leading technology companies in litigation and compliance matters relating to electronic surveillance, law enforcement access to digital evidence, cybersecurity, and data privacy.

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