As the standoff between the Department of Justice and Apple Inc. continues over an iPhone used by one of the suspects in the San Bernardino terrorist attacks, lawmakers are planning to introduce a major encryption bill.
During an event on Wednesday at the Bipartisan Policy Center in Washington DC, Rep. Michael McCaul (R-TX), Chairman of the House Homeland Security Committee, and Senator Mark Warner (D-VA), a Member of the Senate Intelligence Committee, announced that early next week they will introduce new legislation to create a national commission on digital security.
“We need to find a solution to a Paris-style attack where terrorists are using end-to-end encryption that doesn’t create a backdoor criminals and other adversaries can use to compromise data security,” said McCaul.
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.
McCaul said the commission would “bring all relevant stakeholders together in the same room.” Panel members will include law enforcement and intelligence officials, privacy advocates, encryption experts, tech industry representatives, and other groups.
“In many ways, the current litigation that’s taking place might not have been needed if we had this kind of approach a few years back,” Warner said. "My fear is that we are talking past each other.”
Warner noted that the issue will ultimately have to be decided by Congress. Warner called encryption “part of the fabric of American security.” He also noted, however, that the nation must have legal ways to go after criminals and terrorists in the 21st century. “I think a commission on a tight deadline could give us a common set of recommendations that is so necessary,” Warner said.
Apple has already pledged to support the creation of a commission or other panel of experts to discuss the implications of the encryption debate for law enforcement, national security, privacy, and personal freedoms.
“Apple would gladly participate in such an effort,” said Apple CEO Tim Cook in a letter to customers.
A rival legislative proposal to tackle encryption is also in the works. Sens. Richard Burr (R-NC), Chairman of the Senate Intelligence Committee, and Dianne Feinstein (D-Calif.), the panel’s top Democrat, plan to introduce a proposal in March that will give law enforcement easier access to encrypted data.
“I don’t think a commission is necessarily the right thing when you know what the problem is. And we know what the problem is,” Burr told reporters last month.
McCaul did not comment on this legislation.
With the ongoing rift between Apple and DOJ, a heated debate has erupted over mobile device privacy. According to a new poll conducted by the DC-based Pew Research Center, over half of the American people side with the federal government, and believe Apple should comply with the FBI’s investigation by unlocking the iPhone used by Syed Farook, one of the suspects in the San Bernardino terrorist attacks.
A federal magistrate in California has ordered Apple to cooperate with the FBI by helping to unlock the iPhone. Apple believes the court’s unprecedented demand has implications far beyond this particular case. Tim Cook explained in his letter to the company’s customers that the government’s request undermines the security of its customers.
“In today’s digital world, the ‘key’ to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protections around it,” Cook stated. “Once the information is known, or a way to bypassthe code is revealed, the encryption can be defeated by anyone with that knowledge.”
Cook continued, “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. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.”
The tech industry fears that this is just the beginning of further government overreach. Apple says it has chosen to challenge the judge’s demand out of respect for American democracy and privacy.
“The implications of the government’s demands are chilling,” Cook said. “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.”
FBI Director James B. Comey stressed, however, that the government is not trying to set a precedent with this case; rather, law enforcement officials are simply trying to bring to justice those behind the tragic slaughter of the 14 recently killed in San Bernardino, California.
Comey emphasized that the victims of the attack should be on the minds of the American people as the nation weighs its options in the increasingly tumultuous legal battle between the tech industry and the US government over encryption.
“The particular legal issue is actually quite narrow,” Comey said. “The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve. We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly. That’s it.”
Comey continued, “We don’t want to break anyone’s encryption or set a master key loose on the land. I hope thoughtful people will take the time to understand that. Maybe the phone holds the clue to finding more terrorists. Maybe it doesn’t. But we can’t look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead.”