Congress Will Create a Commission on Encryption, Tech, and Terrorism

The special commission will tackle the technology challenges that law enforcement is facing today, and come up with “actionable recommendations.”

Dec 7 2015, 6:08pm

Rep. Michael McCaul. (Image: Ed Schipul/Flickr)

The debate over encryption, and whether the rise of crypto technologies is hindering cops and feds in their fight against crime and terrorism, is about to get its high-profile public stage.

On Monday, Rep. Mike McCaul (R-Texas), the chairman of the House Committee on Homeland Security, announced a special commission that will deal with all the challenges that technology poses to the law enforcement and intelligence community, including the issue of encryption, and the so-called "going dark" problem—a term coined by the FBI to refer to a future where encryption technology makes it impossible for cops to intercept or access data.

McCaul announced the commission during his first ever "State of Homeland Security Address." Motherboard already reported on Friday that McCaul was working to put together such a commission, and has already been reaching out to members in the privacy and digital rights advocacy world, as well as to tech companies.

"Extremists are not only disguising their travel to evade detection, they are also concealing their communications," McCaul said during his speech. "No longer do terrorists plot using couriers and caves. Today they hide their messages in 'dark space,' using encrypted applications and other secure platforms to evade law enforcement."

"Today [terrorists] hide their messages in 'dark space,' using encrypted applications and other secure platforms to evade law enforcement."

For this reason, McCaul called for the creation of a "national commission on security and technology challenges in the digital age." McCaul said that he will soon introduce legislation to create the commission to "bring together the technology sector, privacy and civil liberties groups, academics, and the law enforcement community to find common ground."

While warning of the dangers of encryption, McCaul also said that nobody should "vilify" it, as it's "essential for privacy, data security, and global commerce."

"But 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," he said, while also adding that "a legislative knee-jerk reaction could weaken internet protections and privacy for everyday Americans."

McCaul said that one of the main issues is that tech companies, technologists, and law enforcement haven't been willing to sit at a table at solve the encryption problem. But, he also said, "there are alternatives, there are some solutions to this problem," and that's why he's calling for the commission.

"There are alternatives, there are some solutions to this [encryption] problem."

The debate over encryption, sometimes referred to as the new Crypto War, has been raging in DC for over a year. In September of 2014, Apple announced that its new iPhone at the time, the iPhone 6, would have encryption enabled by default, making it impossible for the cops, and Apple itself, to unlock the phone and make data accessible to authorities. This announcement sparked the debate, with FBI Director James Comey warning that such encryption technologies would make it harder, if not impossible, for law enforcement to do their jobs.

In the following months, law enforcement and government officials have struggled to formulate exactly what they want from tech companies, trying to avoid talking about backdoors specifically. While tech companies, as well as independent technologists and experts, have oft-repeated that there's no way to give the authorities what they want without weakening encryption and security.

With the recent terrorist attacks in Paris and San Bernardino, the debate has been reignited. And even though there's no evidence yet that encryption played any role in those attacks, many officials have used these attacks to denounce encryption. McCaul himself referred to Paris as an example where terrorists used encryption to "stay under the radar."

On Sunday, during a televised address to the nation, President Barack Obama briefly touched on the issue, although obliquely, saying he "would urge hi-tech and law enforcement leaders to make it harder for terrorists to use technology to escape from justice."

The Democrat frontrunner to replace Obama in the White House, Hillary Clinton, made similar remarks in a speech about the fight against ISIS earlier on Sunday.

"It's time for an urgent dialogue between the government, not just our government, and the high-tech community, to confront this problem together," Clinton said.

Clinton also specifically referred to the encryption issue, arguing that there must be a solution.

"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," she said, adding that she wants tech companies and law enforcement to "get together and try to figure out the best way forward."

McCaul didn't provide any details on the special commission, only saying that the goal of the commission will be to "develop a range of actionable recommendations that protect privacy and public safety."

Once McCaul introduces the bill to create the commission, it will be up to Congress to approve it. McCaul plans to introduce the bill that will call for the creation of the commission in early January, a spokesperson for the House Committee on Homeland Security told Motherboard.

This post has been updated.