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Hillicon Valley: Apple, Facebook defend encryption during Senate grilling | Tech legal shield makes it into trade deal | Impeachment controversy over phone records heats up | TikTok chief cancels Capitol Hill meetings

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Welcome! Follow the cyber team, Maggie Miller (@magmill95), and the tech team, Emily Birnbaum (@birnbaum_e) and Chris Mills Rodrigo (@chrisismills).

 

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THAT’S A FIRM NO: Facebook on Tuesday told the Trump administration that it would not create a backdoor for law enforcement in its messaging encryption, saying that doing so would threaten users’ safety.

In a letter from the executives in charge of Messenger and WhatsApp, Stan Chudnovsky and Will Cathcart, the company declined to open its encryption to law enforcement.

“Cybersecurity experts have repeatedly proven that when you weaken any part of an encrypted system, you weaken it for everyone, everywhere. The ‘backdoor’ access you are demanding for law enforcement would be a gift to criminals, hackers and repressive regimes, creating a way for them to enter our systems and leaving every person on our platforms more vulnerable to real-life harm,” they wrote in the letter.

“It is simply impossible to create such a backdoor for one purpose and not expect others to try and open it.”

The letter, obtained by The Hill shortly before a Senate Judiciary Committee hearing on encryption, came in response to a request from Attorney General William Barr and acting Homeland Security Secretary Kevin McAleenan, joined with British Home Secretary Priti Patel and Australian Minister for Home Affairs Peter Dutton.

In their request from early October, the officials urged Facebook to hold off on incorporating end-to-end encryption across its various messaging services.

They warned that encrypted messaging could be useful to criminals like child predators and frustrate law enforcement’s efforts to go after them.

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Read more on the clash here.

 

That letter set the stage for a contentious hearing on the issue of encryption…

 

A SENATE GRILLING: Facebook and Apple defended their decision to block law enforcement from accessing communications among their billions of users during a contentious hearing on Tuesday, even as they face intensifying pressure from lawmakers and the U.S. attorney general.

The hearing came against a backdrop of reignited tensions between Silicon Valley and the government over whether tech companies are enabling criminal activity as they work to build privacy into their products.

Senators on the Judiciary Committee were largely united in their condemnation of the tech companies for refusing to build “backdoors” for law enforcement, which would allow police officers to open Apple’s iPhone and read Facebook Messenger communications if they obtained a warrant.

“When law enforcement believes a crime has been committed … and they get a court order, I want the government to be able to look and find out all relevant information,” Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) said.

The top lawmakers on the powerful committee, Graham and ranking member Dianne Feinstein (D-Calif.), threatened to work up legislation that would force the companies to create “backdoors” into encrypted messaging for law enforcement.

“I hope the tech community working with law enforcement can find a way to do it,” Graham said. “If y’all don’t, we will.”

But Apple’s manager of user privacy Erik Neuenschwander and Facebook product management director Jay Sullivan argued end-to-end encryption allows people to communicate freely without fear of government or corporate surveillance.

“We oppose intentionally weakening the security of encrypted systems, because doing so would undermine the privacy and security of people everywhere and leave them vulnerable to hackers, criminals and repressive regimes,” Sullivan told the committee.

If Facebook declines to acquiesce to the Trump administration and lawmakers’ demands, Republican senators told The Hill on Tuesday, Congress could take the matter into its own hands through legislation.

Sen. John Cornyn (R-Texas) said he’s considering legislation that the companies “wouldn’t like very much,” which might make the companies “responsible for child exploitation,” one of the major crimes that occurs on encrypted communication services.

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“What we need to do is provide some incentives for the tech companies to work with law enforcement,” Cornyn, a member of the Senate Judiciary Committee, told The Hill. “I’m thinking about all sorts of things.”

Read more on the hearing here.

 

LATE TO THE PARTY: Legal protections for technology companies are still in the free-trade deal between the United States, Mexico and Canada that was endorsed by Speaker Nancy Pelosi (D-Calf.) on Tuesday despite her efforts to remove them. 

“I had one disappointment… 230, but I was too late coming in on it,” Pelosi said Tuesday during a press conference announcing the deal between House Democrats and the White House on the trade deal. 

Pelosi announced last Thursday that she would try to remove the language from Section 230 of the Communications Decency Act in the U.S.-Mexico-Canada Agreement (USMCA). This language gives platforms legal immunity for content posted by third-party users while also giving them legal cover to take good-faith efforts to moderate their platforms.

“I lost – they had 230 in the agreement, there are some members that wanted that… it’s a real gift to big tech,” Pelosi said Tuesday. “But I had said to the trade representative that we’re not adding any more issues to the discussion.”

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Pelosi’s last minute decision to press on that issue came after lawmakers from both sides of the aisle for months raised concerns that including the legal protections could damage domestic efforts to amend the Section 230 law, which has come under increased scrutiny as Silicon Valley has fallen out of favor with Washington.

The inclusion of the protections is a major win for tech interest groups, many of which released laudatory statements Tuesday.

“This landmark agreement contains the strongest digital and intellectual property chapters found in any free-trade agreement to-date, which will foster innovation for American companies across industries and will help ensure North America’s leadership for future technology R&D and manufacturing,” Cinnamon Rogers, an executive at the tech trade group the Computing Technology Industry Association, said.

Read more here.

 

TIKTOK OUT: TikTok’s chief canceled his upcoming meetings with key lawmakers this week, reigniting criticism on Capitol Hill from those who say the Chinese-owned firm is avoiding accountability.

TikTok leader Alex Zhu and TikTok’s U.S. general manger Vanessa Pappas tabled meetings with several Republican senators on Monday, citing scheduling issues and the holiday rush. Zhu will try to meet with those same lawmakers after the holidays, a TikTok spokesperson told The Hill.

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“TikTok has no higher priority than ensuring Congress Members’ questions are addressed fully and transparently,” a TikTok spokesperson said. “To ensure these conversations are as productive as possible, we’re looking forward to holding these meetings after the holidays.” 

But Zhu’s last-minute cancellations are likely to inflame tensions among those senators who say TikTok poses a national security threat because it is owned by a Chinese company and collects reams of personal information on minors.

Read more here.

 

CALL RECORDS DEBATE: House Republicans are escalating their feud with Intelligence Committee Chairman Adam Schiff, accusing the California Democrat of carrying out a “smear campaign” against his GOP counterpart, Rep. Devin Nunes (Calif.), by publishing his phone records in the panel’s sweeping impeachment report.

Collecting the phone data has been strongly defended by Democrats while Republicans have seized on the new controversy as unfair and a bad precedent.

President Trump‘s Republican allies on Capitol Hill have sought to shine the spotlight back on Schiff as Democrats build their case against the president and continue marching toward an impeachment vote as soon as next week.

During Monday’s impeachment hearing, the top Republican on the Judiciary Committee, Rep. Doug Collins (Ga.), spent several minutes ripping into the Democrats for including the Nunes records — something Collins argued added no value to the report and was only done as a “political vendetta” against one of Trump’s key defenders.

“It was a drive by. It was a gratuitous drive by that you wanted to smear the ranking member,” Collins told Schiff’s Democratic counsel, Daniel Goldman.

Schiff’s report detailed that Nunes had multiple communications with key figures in the House impeachment inquiry: Rudy Giuliani, Trump’s personal lawyer, as well as with Giuliani’s Soviet-born associate Lev Parnas, who has been indicted on campaign finance charges. The records also show Giuliani was in communication with conservative opinion columnist John Solomon, who previously worked for The Hill.

The phone logs indicate Nunes and Giuliani spoke briefly three times and texted once on April 10. It also shows numerous attempts at contact between Parnas and Nunes on April 12, including an eight-minute phone call. 

The metadata — which only show phone numbers and durations of calls, not the substance of the calls or texts — raises serious questions about why Nunes was in frequent contact, at conspicuous times, with individuals who were part of a shadow campaign to pressure Ukraine to investigate one of Trump’s key political rivals, former Vice President Joe Biden.

Read more here.

 

A LIGHTER CLICK: When it’s Tuesday

 

AN OP-ED TO CHEW ON: Let’s enact a privacy law that advances economic justice 

 

NOTABLE LINKS FROM AROUND THE WEB:

Battle over a domain name turns bloody (OneZero / Ian Frisch)

Dronesense data leaves police flight plans exposed (Motherboard / Joseph Cox)

William Barr tells state attorneys general that DOJ is rethinking Section 230 (The Washington Post / Tony Romm)

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