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House Homeland Security Chairman Wants Commission to Study Encryption

House Homeland Security Committee Chairman Mike McCaul, R-Texas

House Homeland Security Committee Chairman Mike McCaul, R-Texas // J. Scott Applewhite/AP

Key law­makers in both cham­bers on Monday pro­posed some of the first bills to ad­dress the use of en­cryp­ted com­mu­nic­a­tions in the wake of the ter­ror­ist at­tacks in Par­is and San Bern­ardino.

The pro­pos­als from Sen­ate Demo­crats and House Re­pub­lic­ans wouldn’t man­date that the gov­ern­ment have “back­door” ac­cess to com­mu­nic­a­tions. In­stead, the law­makers are just pro­pos­ing that the gov­ern­ment and the tech in­dustry work to­geth­er to study the is­sue.

But even that tent­at­ive first step has pri­vacy ad­voc­ates nervous. “From my per­spect­ive, the idea is wor­ry­ing,” said Chris Ca­labrese, the vice pres­id­ent for policy at the Cen­ter for Demo­cracy and Tech­no­logy, a di­git­al-rights group. “En­cryp­tion is so found­a­tion­al to the se­cur­ity of the In­ter­net. Pro­pos­als to study back­doors seem like they will in­ev­it­ably lead to some bad tech­nic­al com­prom­ises.”

In a speech Monday, House Home­land Se­cur­ity Chair­man Mi­chael Mc­Caul, a Texas Re­pub­lic­an, said he plans to in­tro­duce le­gis­la­tion to cre­ate a “na­tion­al com­mis­sion on se­cur­ity and tech­no­logy” that would is­sue re­com­mend­a­tions to “pro­tect pri­vacy and pub­lic safety.” He said the com­mis­sion would in­clude mem­bers from law en­force­ment, as well as civil-liber­ties ad­voc­ates, aca­dem­ics, and rep­res­ent­at­ives from tech­no­logy com­pan­ies.

Sen­ate Demo­crat­ic lead­ers an­nounced their own pro­pos­als Monday to fight IS­IS, in­clud­ing le­gis­la­tion to dir­ect the Na­tion­al Academy of Sci­ences and in­tel­li­gence agen­cies to work with the private sec­tor to “identi­fy how en­cryp­tion tech­no­logy is used and how to make sure that our na­tion­al se­cur­ity needs and tech­no­logy policies are not work­ing at cross-pur­poses.”

The bills fol­low a speech on ter­ror­ism Sunday night by Pres­id­ent Obama in which he said he will “urge high-tech and law-en­force­ment lead­ers to make it harder for ter­ror­ists to use tech­no­logy to es­cape from justice.” Demo­crat­ic pres­id­en­tial can­did­ate Hil­lary Clin­ton also said Sunday that tech com­pan­ies should get to work “dis­rupt­ing” IS­IS.

FBI Dir­ect­or James Comey first gave a high-pro­file speech last year warn­ing that crim­in­als and ter­ror­ists are in­creas­ingly us­ing en­cryp­tion to “go dark” from sur­veil­lance. His push for broad­er sur­veil­lance powers had seem­ingly sputtered out, but the at­tacks in Par­is and San Bern­ardino have put the is­sue back on the front burn­er in Wash­ing­ton.

The tech in­dustry and pri­vacy ad­voc­ates are fiercely op­posed to any le­gis­la­tion to weak­en en­cryp­tion. A back­door for the gov­ern­ment would be a huge cy­ber­se­cur­ity risk be­cause it could also be ex­ploited by ma­li­cious hack­ers, they warn.

“It’s the widely held con­sensus of count­less com­puter sci­ent­ists, tech­no­logy com­pan­ies, and na­tion­al se­cur­ity ex­perts that it is im­possible to build a back­door in­to en­cryp­ted products without com­prom­ising cy­ber­se­cur­ity and pri­vacy,” said Neema Singh Guliani, a le­gis­lat­ive coun­sel for the Amer­ic­an Civil Liber­ties Uni­on. “We don’t need yet an­oth­er com­mis­sion to con­clude … that the U.S. gov­ern­ment shouldn’t sup­port policies that weak­en en­cryp­tion.”

If Con­gress does move ahead with a com­mis­sion to study the is­sue, she said, its re­com­mend­a­tions wouldn’t be “cred­ible” un­less it in­cludes pri­vacy ex­perts and tech­no­lo­gists.

While the law­makers are scram­bling to find a way to en­sure the gov­ern­ment can spy on ter­ror­ist com­mu­nic­a­tions, they also seem sens­it­ive to the con­cerns from the tech in­dustry. Mc­Caul was care­ful Monday to em­phas­ize that he does not want to “vil­i­fy” en­cryp­tion.

“A le­gis­lat­ive knee-jerk re­ac­tion could weak­en In­ter­net pro­tec­tions and pri­vacy for every­day Amer­ic­ans, while do­ing noth­ing puts Amer­ic­an lives at risk and makes it easi­er for ter­ror­ists and crim­in­als to es­cape justice,” he said.

The de­bate over en­cryp­tion stretches back to at least the 1990s, with the first round of the so-called “Crypto Wars.” And des­pite plenty of de­bate, no one has been able to find a pro­pos­al that sat­is­fies both sides.

“At the end of the day, you can’t stop someone from do­ing math or cre­at­ing cryp­to­graphy,” said Mark Jay­cox, a le­gis­lat­ive ana­lyst for the Elec­tron­ic Fron­ti­er Found­a­tion.

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