The 2015 terrorist attacks in Paris and San Bernardino fueled an ongoing debate over the role of encryption in American society. The privacy and security issues deeply entwined in the encryption controversy led the House Committee on Homeland Security to release a report aimed at providing a better understanding of digital security issues for Congress and the American public.
The new report, “Going Dark, Going Forward: A Primer on the Encryption Debate,” is based on more than a 100 meetings and briefings the Committee held with key stakeholders over the past year. The Committee’s investigation revealed a number of complexities involved in the use of encrypted communications by terrorists and criminals, as well as significant challenges facing US law enforcement and intelligence agencies in attempting to keep pace with rapid advances in technology.
“The encryption debate in America is a contentious one, with no immediate solution or clear path forward,” said Rep. Michael McCaul (R-Texas), Chairman of the House Committee on Homeland Security. “Even in the wake of recent terrorist attacks in America and the west, encryption remains a major challenge to law enforcement and the intelligence community.”
Encryption can be defined as the process of limiting access to data by “using a code or mathematical algorithm so as to [make the data] unintelligible to unauthorized readers,” according to the report. In the cases of Paris and San Bernardino, the attackers were able to use encrypted communications to evade detection, which is known as “going dark.”
The report advocates reframing the current encryption debate from “privacy verses security” to “security verses security.” Encryptionis a double edged sword—the same technology that protects critical infrastructure, financial transactions, trade secrets, and more can also prevent law enforcement from investigating criminals and terrorists.
As Homeland Security Today previously reported, following the San Bernardino attacks, the Department of Justice and Apple Inc. engaged in a standoff over the tech company’s refusal to comply with an FBI investigation by unlocking the iPhone used by Syed Farook, one of the suspects involved in the attacks.
Apple CEO Tim Cook wrote a letter to his company’s customers expressing his fears that unlocking the iPhone would mark the beginning of government overreach. He explained, “The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices.”
Cook continued, “The implications of the government’s demands are chilling. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.”
The Committee’s report noted that statutorily authorizing law enforcement access to obtain encrypted data with a court order could result in a number of serious unintended consequences, including exploitation by bad actors and weakened data security.
The Committee concluded that there are no simple solutions, and there will always be trade-offs.
“As a result of our robust investigation, the Committee staff has come to understand that there is no silver bullet regarding encryption and ‘going dark,’” the report stated. “While we benefited tremendously from our engagement with stakeholders, we did not discover any simple solutions.”
Going forward, national dialogue will be imperative in addressing the complex issues associated with encryption. In June 2016, CIA Director John Brennan emphasized the importance of government collaboration with the private sector in getting beyond the rancor to solve the problem.
“I don’t know what the best way is [to solve the encryption question], but I know that it has to be an effort undertaken by the government and the private sector in a very thoughtful manner that looks at the various dimensions of the problem and is going to come forwardwith a number of options,” Brennan said.
In addition, earlier this year, McCaul and Senator Mark Warner (D-VA), a Member of the Senate Intelligence Committee, announced a proposal to create a national commission on digital security to study both sides of the encryption debate.
Modeled off of the 9/11 commission, the panel would bring together experts to develop recommendations for how law enforcement can access encrypted data without endangering the privacy rights of the American people.
“A national Commission would bring key players and leading minds to the table to develop recommendations for maintaining privacy and digital security, while also finding ways to keep criminals and terrorists from exploiting these technologies to escape justice. Encryption is too central to our country’s future to answer without a robust dialogue with all the key stakeholders,” McCaul said.
