Congress is starting to address the fight between the FBI and Apple. A bill creating a National Commission on Security and Technology Challenges. This commission brings experts together from the technology and law enforcement communities to produce a report on encryption policy.
It’s still far away from being legally binding for either the FBI or Apple, but the commission would provide a great starting point for legislative action on the issues currently faced by the courts. Co-Sponsor of the bill Eric Swalwell(D-CA), had this to say. “Technology companies and law enforcement both have raised serious public policy issues. It’s time to work together.”
The bill was brought to the table by Homeland Security Committee Chairman Michael McCaul and Virginia Senator Mark Warner. Apple CEO Tim Cook wrote a letter to Apple employees on February 22nd stating: “We feel the best way forward would be for the government to withdraw its demands under the All Writs Act and, as some in Congress have proposed, form a commission or other panel of experts on intelligence, technology and civil liberties to discuss the implication for law enforcement, national security, privacy and personal freedoms. Apply would gladly participate in such an effort.”
His letter to Apples employees bears a striking resemblance to the commission proposed by McCaul and Warner. Outside isn’t the only place Congress is feeling pressure to address this issue. On Monday, New York Magistrate Judge James Orenstein threw out an FBI request calling for congressional debate on the issue.
Judge Orenstein is quoted saying “The debate over law enforcement access must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive.” Orenstein also wrote, “It would betray our constitutional heritage and our people’s claim to democratic governance for a judge to pretend that our founders already had that debate, and ended it; in 1789.”
“This bill was designed to help the technology sector, privacy and civil liberties groups, academics and law enforcement to find common ground.” McCaul said in his speech December 7th at National Defense University. “This will not be like other blue ribbon panels; established and forgotten.”
Terrorist groups using encryption applications to communicate within, and to each other is one of his biggest fears. “We cannot stop what we cannot see;” he referenced to recent attacks in San Bernardino, California, and Paris. McCaul said the Islamic State is not a “terrorist group on the run” but a “terrorist group on the march.”
FBI Director James Comey as tried to stop end to end encryption in commercial devices; his advocacy has received mixed feelings in Congress. On October 17th Rep. William Hurd who is a former CIA officer with private sector cyber security experience, criticized Comey for saying encryption thwarts counterterrorism efforts and for throwing certain companies under the bus by saying they are not cooperating. Comey has denied these charges.
In an interview Hurd said, “I think it’s getting a group of industry experts from all sides of this issues to talk, and to not talk past on another is ultimately a good thing.” Hurd said he would plan to speak with McCaul to make sure the commission had the right people in the room. He went on to add that the right people would be leaders for technology firms whose encryption service have been at the center of debate and law enforcement officers who might be able to identify situations in which agencies would need to get around encryption.