00:43 - Source: CNN
Hayden on security implication of Apple-FBI fight
San Francisco CNN  — 

Attorney General Loretta Lynch is traveling to the heart of the U.S. technology industry to make her pitch that tech companies should help the government access their customers’ data for national security investigations.

Lynch is set to speak Tuesday at the RSA tech conference in San Francisco, amid the government’s dispute with Apple over the FBI’s push to require Apple’s assistance to break into an iPhone used by one of the terrorists who carried out the San Bernardino attack.

The attorney general is expected to focus in part on negotiations between the U.S. and U.K. governments for an agreement that would allow British authorities to directly subpoena U.S. tech companies for wiretaps and other information on British suspects in national security investigations, instead of relying on a more cumbersome mutual legal assistance treaty.

“I am pleased to report that we have begun negotiations with the United Kingdom to establish a new framework that would permit U.K. authorities to access electronic communications directly from American companies where the investigation targets accounts not used by Americans or people in the United States,” Lynch plans to say, according to prepared remarks provided by the Justice Department.

Lynch confirmed the talks in an interview Monday with Fox News.

“What were talking to the U.K. about is trying to find a way to come up with a solution to help U.S. companies comply with a British order,” Lynch told Fox News.

Currently, foreign governments must ask the FBI to obtain the information obtained by wiretaps, live surveillance and stored emails through mutual assistance treaties, which can cause delays in obtaining the evidence.

Lynch said that proposed agreement would not allow the British government to directly obtain evidence on American citizens and that the court orders could only include actions taken within the U.K.

“Right now, American law says they can not send that data overseas but because they operate in the U.K., they are subject to U.K. process and law there so they are in a bind,” Lynch said.

Without mentioning Apple, she also plans to defend the Justice Department’s efforts to require tech companies to help law enforcement on national security cases, according to her prepared remarks.

Apple has appealed a judge’s order to require the company to assist the FBI in the San Bernardino case, citing First Amendment and other constitutional limitations on the government’s surveillance powers.

On Monday, the company won an important victory in a separate case, as a Brooklyn federal judge ruled that the government can’t use a 1789 law to force Apple to help the Drug Enforcement Administration break into a drug dealer’s cell phone. The government is trying to use the same law in the San Bernardino case.

Facing what is expected to be a skeptical audience, Lynch plans to address the issue of suspects using encryption to “go dark” and hide from investigators.

“As you know, the ‘going dark’ problem is a very real threat to law enforcement’s mission to protect public safety and ensure that criminals are caught and held accountable. We owe it to victims and to the public whose safety we must protect to ensure we have done everything under the law to fully investigate terrorist attacks and criminal activity on American soil,” Lynch plans to say, according to her prepared remarks.

Beyond the Apple case, civil liberties groups have qualms about letting foreign governments, including Britain, directly subpoena U.S. companies for customer information stored in the U.S.

Any deal would require congressional approval.

“To qualify, the U.K. government would have to agree to a number of provisions designed to protect privacy and fundamental rights, and a U.K. order would have to comply with UK law,” Lynch says in her prepared remarks. “This agreement would release American companies from conflicting legal obligations in clearly and carefully defined circumstances. It would help one of our oldest and closest allies perform high-priority criminal investigations that keep its citizens safe – and many of which, in our age of transnational crime and terrorism, also further American interests.”

But Lynch plans to raise the possibility that other foreign governments could also gain such powers inside the U.S., while the U.S. would gain reciprocal privileges overseas.

“If it proves successful, it could be replicated with other countries, if – and only if – their laws adequately protect privacy and civil liberties, potentially encouraging other nations to improve their laws and enhance privacy protections in order to obtain the benefits of this arrangement,” Lynch plans to say.

CNN’s Wes Bruer contributed to this report