Turf battle erupts over hot cyber issue

Turf battle erupts over hot cyber issue
© Greg Nash

A turf battle involving three House panels has erupted over who will determine the future of technology that protects privacy but makes it tougher for law enforcement to pry open phones.

The fight involves the heads of the Homeland Security, Energy and Commerce and Judiciary panels, all of which have signaled they want their hands on an already controversial issue that is only expected to get hotter.

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Congress is under pressure from both law enforcement and the technology industry to arbitrate the encryption debate, with the terrorist attacks on San Bernardino, Calif., and Paris ratcheting up the stakes. 

And at this point, lawmakers are furiously jockeying for responsibility over the issue.

That’s because widespread use of robust, commercially available encryption touches on almost every facet of private industry and government, with long-term implications for intelligence agencies and homeland security officials, businesses of every stripe and private citizens. This makes it attractive territory for a lot of lawmakers who have come to recognize what a complex and pervasive policy question the technology presents, according to one industry source tracking the issue.

The first public salvo in the scuffle for House jurisdiction came from Homeland Security Committee Chairman Michael McCaul (R-Texas) amid rampant speculation about terrorist use of encryption in the early days after the November attack on Paris.

McCaul introduced legislation to establish a 16-member commission to study the technology and offer recommendations to Congress.

But his legislation has been referred to the Energy and Commerce, Judiciary and Foreign Affairs panels — not Homeland Security. Energy and Commerce has primary jurisdiction.

And both Energy and Commerce and Judiciary have already planted their own flag on the issue. Shortly after McCaul introduced his bill, the two committees teamed up to establish a working group of lawmakers to study and offer their own report on the technology.  

In public, the chairmen of the three panels have chosen their words carefully. McCaul has even gone so far as to suggest the two groups are “not mutually exclusive.”

But the leaders of Energy and Commerce and Judiciary aren’t ceding any ground.

“If you read between the lines, you can see them really putting their foot down,” the industry member said.

“My colleagues and I are ready to roll up our sleeves and be part of the solution,” Energy and Commerce Committee Chairman Fred Upton (R-Mich.) said in an April release headlined “Upton Sets The Record Straight on Encryption Debate.”

Judiciary Committee Chairman Bob GoodlatteRobert (Bob) William GoodlatteUSCIS chief Cuccinelli blames Paul Ryan for immigration inaction Immigrant advocacy groups shouldn't be opposing Trump's raids Top Republican releases full transcript of Bruce Ohr interview MORE (R-Va.) was even more pointed in a March hearing on the matter.

“The Judiciary Committee is a particularly appropriate forum for this congressional debate [on encryption] to occur,” he said.

Jurisdictional experts say it’s not necessarily unusual that Homeland Security leadership made a bid for the issue. Since the committee’s relatively recent founding in 2002, it has been “continually subject to the buffeting of these jurisdictional disputes.”

“Much of what it does often provokes committees having to give up jurisdiction to push back,” a former House committee staff director told The Hill. “There’s nothing new here.”

But the back-office wrangling has some onlookers betting that McCaul’s proposal will simply languish in committee.

First and foremost, onlookers are suspicious that committee leadership will advance McCaul’s bill, given that it conflicts with their own proposal, which is not legislative and does not require a vote.

Another roadblock is the fact that it’s an election year.

Committee leadership may be unwilling to put vulnerable members to a vote on an issue as contentious as encryption — even on a bill considered as mild as McCaul’s.

Moreover, there will be an entirely new cast of characters next year in a new administration, including a new attorney general, although FBI Director James Comey, one of the most influential law enforcement voices in the debate, will remain on a 10-year appointment.

Then there’s the question of jurisdiction.

House leadership can play a huge role in who ultimately gets jurisdiction over the issue, if it chooses to intervene.

But some suspect Speaker Paul RyanPaul Davis RyanThe Hill's Morning Report — Dems detail case to remove Trump for abuse of power Social security emerges as latest flash point in Biden-Sanders tussle Hill.TV's Saagar Enjeti rips Sanders for 'inability to actually fight with bad actors' in party MORE (R-Wis.) will decline to weigh in until the political landscape — and the cast of characters — surrounding the issue is a little more set.

Battles for committee gavels that could have a substantial impact on the issue are already underway: Outgoing House GOP campaign chief Greg Walden (R-Ore.) is weighing a run against Rep. John Shimkus (R-Ill.) to replace outgoing Upton in what one senior member of the House GOP Steering Committee called a “King Kong vs. Godzilla kind of race.”

The issue of ownership is more settled in the Senate, where few lawmakers are interested in taking it up. Aside from Sen. Mark WarnerMark Robert WarnerDemocrats worry Trump team will cherry-pick withheld documents during defense Commerce Department withdraws Huawei rule after Pentagon pushback: reports  Hillicon Valley — Presented by Philip Morris International — Bezos phone breach raises fears over Saudi hacking | Amazon seeks to halt Microsoft's work on 'war cloud' | Lawmakers unveil surveillance reform bill MORE (D-Va.), who is drumming up support for McCaul’s bill, the only significant proposal is a discussion draft from the leaders of the Intelligence Committee.

That offering is so controversial that some suspect the pushback is the reason the bill has yet to make it out of the draft stage.

Onlookers say they don’t see other committee leaders wading into the fray. Senate Judiciary Committee Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyGraham vows Biden, Ukraine probe after impeachment trial Social security emerges as latest flash point in Biden-Sanders tussle Trump to sign USMCA next Wednesday MORE (R-Iowa), for example, hasn’t displayed any vocal interest in the issue.

But the ultimate wrinkle in an already complex web of interests, many say, is that the state of play could shift drastically if there is another attack on the scale of San Bernardino or Paris — or if the high-profile deadlock between Apple and the FBI reignites.

In that case, perceived authority over the issue could veer with public opinion, opening new pathways for previously stalled proposals — and interested lawmakers.