Mixed prospects for encryption bills on Capitol Hill

At least one high-profile encryption bill being discussed on Capitol Hill looks unlikely to move through the legislative process this year, a Senate staffer told the Information Security and Privacy Advisory Board, a group of private-sector technology experts which advises the National Institute of Standards and Technology.

Matt Grote, a senior professional staffer for Senate Homeland Security and Governmental Affairs Committee and a former Government Accountability Office analyst, discussed the legislative outlook encryption-related bills during a March 25 presentation at the ISPAB meeting in Washington D.C.

Senate Intelligence Committee Chairman Richard Burr (R-N.C.) and Vice Chairman Diane Feinstein (D-Calif.) have drafted legislation designed to give law enforcement access to encrypted communications with a warrant. That measure, which the senators plan to formally introduce soon, would presumably be ex post facto to the Apple-FBI encryption dispute, but could add a legislative framework for future, similar cases.

Grote did not get into the merits of the legislation, but simply stressed to the board that getting even mildly controversial legislation through Congress this year will be difficult, given the elections and the compressed political calendar.

"Nobody knows what they are going to do," he said of Burr and Feinstein's legislative strategy, but "I think it's going to be a really heavy lift this year." He speculated that the senators might use a closed markup as a means to move the bill closer to a floor vote, and noted that regardless of where it ends up, the bill "does give them the benefit of starting a discussion."

Grote said another measure -- this one from House Homeland Security Committee Chairman Michael McCaul (R-Texas) and Sen. Mark Warner (D-Va.), a member of the Senate's Select Committee on Intelligence -- might have a better chance of progressing.  That bill calls for the creation of a commission of experts in technology, cryptography, law enforcement, intelligence, privacy, global commerce and national security. Grote noted that Sen. Ron Johnson (R-Wis.), who chairs the Senate Homeland Security and Governmental Affairs Committee, supports the bill

Additionally, he pointed to a recently formed bipartisan working group at House Judiciary Committee and the Energy and Commerce Committee designed to focus on legislative issues around encryption. Their goal is to meet with stakeholders and subject matter experts regularly in an attempt to come up with solutions by the end of this year and propose recommendations for possible policy solutions to striking the balance between privacy and the tools law enforcement needs during their investigations.