PINDROP BLOG

House Committee Report Slams Proposed Encryption Legislation

A new report from House Homeland Security Committee on the encryption debate says that despite both parties being motivated to find common ground, law enforcement and the private sector haven’t yet started a meaningful conversation on encryption, and none of the legislative proposals forwarded so far are realistic.

The report, released Wednesday, discusses the encryption issue from various angles, including the technical, political, legislative, and law enforcement challenges, and is the result of meetings with people in all of those communities. After dozens of meetings and months of discussions, the committee staff came to the conclusion that there are no easy fixes.

“Two key themes have emerged from our discussions with stakeholders over the past year: 1) if we are to get ahead of this issue as a society, we must first develop a common lexicon and a common understanding of what the problem actually is; and 2) legislative proposals seem to determine clear ‘winners’ and ‘losers’ in the debate, thereby risking significant blowback for all the parties involved,” the report says.

The encryption debate has come into the public consciousness this year, mainly through the Apple-FBI conflict over an encrypted iPhone used by a terrorist involved in the San Bernardino shooting last year. The FBI pressured Apple to help it decrypt the phone, through the use of a custom, backdoored, version of iOS, and the company refused, leading to a nasty public fight. The FBI eventually got what it wanted through other means, but the public debate it sparked over the widespread use of encryption and law enforcement’s desire to access suspects’ communications has continued.

In public comments, many law enforcement officials and politicians have emphasized criminals’ and terrorists’ use of encrypted messaging apps, while civil liberties groups and privacy advocates stress the privacy and security value of encryption for everyday users. There has not been much in the way of middle ground. The House Homeland Security Committee’s report said that lack of nuance and compromise in the public dialogue has slowed progress toward a solution.

“What’s more, many stakeholders involved in the discussions surrounding this issue feel their motives, patriotism, and even their intelligence are called into question by those who oppose their point of view. As a result, relationships have been damaged and progress has been stymied,” the report says.

There have been several bills proposed in Congress in recent months that have attempted to address the encryption question in one way or another. Some, such as the Burr-Feinstein bill, have included language that would essentially require backdoors in encryption systems. There have been state bills along the same lines, including ones in California and New York. Other proposals have gone the other way, prohibiting compelled backdoors. The House committee report says neither of these approaches has been useful.

“Any legislative ‘solutions’ yet proposed come with significant trade-offs, and provide little guarantee of successfully addressing the issue. Lawmakers need to develop a far deeper understanding of this complex issue before they attempt a legislative fix,” the report says.

The committee’s proposed way forward on encryption is the creation of a Digital Security Commission that would include representatives from law enforcement, cryptographers, privacy and civil liberties experts, and members of the intelligence community.

“We believe the best way to make informed, sustainable decisions is to bring together experts who best understand the complexities of this issue, and can advise Congress on the best path forward,” the committee report says.

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