Congress moving ahead on encryption vs. terrorism debate
Late Monday evening, the FBI announced that it had finally unlocked the iPhone used by San Bernardino shooter Syed Rizwan Farook, ending investigators’ month-and-a-half dispute with Apple over access to the password-protected and encrypted device.
But that doesn’t mean the so-called “crypto-wars” are over. Far from it: As the need to investigate communications between terrorists remains critical, major U.S. tech companies must now look to Congress to address many of the disagreements that played out in the legal filings between law enforcement and Apple.
Just last week, representatives from the House Judiciary and Energy and Commerce committees formed a working group to look into “the issues surrounding this ongoing national debate.” Though they’ve yet to do anything but assert their jurisdiction, their announcement comes at a time when Congress may soon consider a bill that would give law enforcement access to encrypted data.
According to the Hill, Intelligence Committee members Sens. Dianne Feinstein, D-Calif., and Richard Burr, R-N.C., plan this month to circulate a draft of such legislation, which has been in the works since last year’s terrorist attacks in Paris. The bill, which has been submitted to both the Justice Department and the White House for input, is expected to force companies like Apple to comply with court orders like the FBI’s in investigations involving hard-to-access, encrypted data — orders that Electronic Frontier Foundation staff attorney Nate Cardozo says could endanger practically all the encrypted technology Apple has designed.
As the bill is being drafted, members of Congress are seeking to bone up on the myriad issues surrounding encryption. According to Nathan White, a legislative manager at the advocacy group Access Now, the working group will probably focus on a better understanding of encryption rather than suggesting solutions to issues of law enforcement access.
“There’s a lot of complication that needs to be teased out and explained,” White told Yahoo News. “This working group’s goals over the next six months or so are going to be to educate members about the complicated details of the encryption conversation, beyond just the ‘going dark’ argument that we hear from [FBI] Director [James] Comey.”
This isn’t the first time Congress has addressed encryption since the FBI’s spat with Apple became national news. Last month, the House Judiciary Committee held a testy, five-hour hearing during which members interrogated Comey along with a professor of cybersecurity and Apple’s lead counsel. Several representatives who asked Comey skeptical questions about the FBI’s approach to its lawsuit with Apple — including John Conyers, D-Mich., and Darrell Issa, R-Calif. — have joined the encryption working group.
According to Neema Singh Guliani, a legislative expert from the American Civil Liberties Union, representatives are signaling that they will not vote on a definitive bill without fully understanding the implications of their decision — even in the face of ongoing investigations into terrorist attacks.
“I think what you’ve heard from a lot of members of Congress — some who are very supportive of encryption, some who are still sort of developing their points of view — is a lot of people saying: Let’s not have a knee-jerk reaction. Let’s try to approach this much more thoughtfully,” she said.
Ultimately, that caution may block the forthcoming Burr-Feinstein bill from gaining traction, especially during Congress’s election year.
“If you’re a congressional staffer and you’ve got the Burr-Feinstein bill — even if you want to be tough on crime, tough on terrorism — you don’t want to put your boss on record supporting the bill without considering all of these other issues,” White told Yahoo News. “It’s too dangerous for a member of Congress to put themselves on record for something like that.”
Meanwhile, tech companies are rushing to shore up any technical vulnerabilities that could potentially be targeted by law enforcement through the legal system.
“I think Apple needs to pedal to the metal, full-speed-accelerate on those plans as much as possible,” said EFF’s Cardozo.
