Acknowledging the gravity of the encryption debate, Congress will create a commission on encryption, technology and terrorism in response to growing concerns that encryption is a tool envied if not used by terrorists. In a bid to somehow narrow the gulf between the desires of law enforcement and the realities faced by the tech companies, Rep. Mike McCaul of Texas, chairman of the House Committee on Homeland Security, announced the formation of a special commission to tackle the issues. Foremost on the agenda will be law enforcement’s fears of “going dark” as it cannot intercept, read, or access encrypted data from terrorists.
Recognizing that “extremists are not only disguising their travel to evade detection, they are also concealing their communications,” and no longer rely on outmoded communication or cower in caves, but rather hide their messages in “dark spaces”, McCaul’s commission would target their attempts to evade law enforcement via impenetrable encryption.
McCaul went out of his way to not demonize encryption, because it is the backbone of privacy on the Internet, and also essential for robust global commerce. On the other hand, he noted that, “I have personally been briefed on cases where terrorists communicated in darkness and where we couldn’t shine a light, even with a lawful warrant.” Then he opined that “a legislative knee-jerk reaction could weaken internet protections and privacy for everyday Americans.”
So this will be a delicate balancing act, in what is shaping up to be a precarious political year featuring a presidential election campaign rife with incendiary rhetoric.
If you’ve been following the drama, you will know that it has been simmering for over a year, and was kicked up a notch by Apple’s introduction of encryption by default for its iPhones. This makes the police, as well as Apple, unable to access users’ data, and prompted the “going dark” remarks by FBI Director James Comey, further fueling the debate in which law enforcement clamor for backdoors, and which the tech industry has rebuffed.
But the attacks in Paris, and the most recent one in San Bernardino, have emboldened authorities to press for weaker encryption despite the fact that there is no evidence that terrorists used encryption in planning or executing the massacres. In fact, the “go” signal in Paris was found to have been sent in a simple, open SMS message!
The presidential candidates have not missed a beat in joining the chorus for weaker encryption and backdoors. Even the reticent President Obama, who has been straddling the fence, has come out for tech company capitulation, while at the same time (as is typical,) championing an unencumbered free enterprise system replete with free speech. All candidates have been deliberately vague on details, and have used broad terms in their appeals for weaker encryption and backdoors, with many calling for cooperation by the tech companies, as opposed to the government forcing compliance.
A typical response is the one by Democrat front-runner, Hillary Clinton, who said that,
“I have to believe that the best minds in the private sector, in the public sector could come together to help us deal with this evolving threat. [Tech companies and law enforcement should] get together and try to figure out the best way forward.”
Given the climate in the US in the aftermath of the latest attack in California, and the pandering for votes from an outraged electorate, it is likely that McCaul’s call for a commission will sail through Congress and be signed by the President. It will not be the last piece of legislation that arises in the assault on privacy and liberty.