Homeland Security Committee pushes encryption commission in new report

The House Homeland Security Committee on Wednesday released a report on encryption policy that endorsed the idea of establishing a formal commission to study the topic.

The committee's chairman, Rep. Michael McCaul (R-Texas), and Sen. Mark WarnerMark Robert WarnerWe are America's independent contractors, and we are terrified Hillicon Valley: Amazon's Alabama union fight — take two Senate Judiciary Committee to debate key antitrust bill MORE (D-Va.) have offered legislation to do so.


“Future progress in addressing these challenges will likely depend on a more formal national discussion involving the necessary stakeholders in the form of a national commission on digital security,” the report reads.

The report — cast as a primer on what's called the “Going Dark” debate — offers no prescriptive policy beyond the commission. 

It cites a number of arguments made by supporters of robust encryption, including the contention that because two-thirds of encryption technology providers are located outside of the U.S., “bad actors could still obtain the technology from foreign vendors irrespective of U.S. legislative action.”

The report is the result of more than 100 meetings by members and staff, with cryptologists and technology experts as well as law enforcement and intelligence agencies.

The terror attacks in Paris, San Bernardino, Calif., and Brussels have led to increased calls for congressional action on encryption. Lawmakers have expressed frustration that so-called “warrant-proof” encryption has kept investigators from accessing needed evidence.

The FBI and law enforcement officials have for years warned that extremists are increasingly using encrypted platforms to “go dark” and hide their plans from authorities. They are calling on tech companies to provide investigators with guaranteed access to secure data.

But the tech industry and privacy advocates have resisted. They insist such guarantees would create “backdoors,” or security vulnerabilities, that hackers and spies could exploit.

The dispute took on a new urgency during the standoff between the FBI and Apple over a locked iPhone used by one of the San Bernardino shooters.

Many believe that the issue can only be resolved through congressional action — but it remains undetermined whose bailiwick the "dark" problem is.

The McCaul-Warner commission, which would be created by a bill seen as a compromise measure in the thorny debate, has arguably drawn the most support of the various legislative offerings addressing the issue.

It would consist of 16 members, including tech industry executives, privacy advocates, cryptologists, law enforcement officials and members of the intelligence community.

Modeled after the 9/11 Commission, the group would have six months to create an interim report and a year to deliver its full findings. Its scope would expand beyond encryption, exploring more broadly how authorities can maintain security with the proliferation of modern technology.

“While Congress — as opposed to the courts — is the proper forum to consider novel matters of law and policy, we recognize that this is a truly complex issue,” the report reads. “A comprehensive report will be incredibly valuable for Members of Congress as they endeavor to make the most informed decisions possible. “

But the commission faces competition from several other legislative offerings.

A draft bill circulated earlier this year by Senate Intelligence leaders Richard BurrRichard Mauze BurrPublic health expert: Biden administration needs to have agencies on the 'same page' about COVID Top Biden adviser expresses support for ban on congressional stock trades Biden's FDA nominee advances through key Senate committee MORE (R-N.C.) and Dianne FeinsteinDianne Emiel FeinsteinLawmakers in both parties to launch new push on Violence Against Women Act Domestic travel vaccine mandate back in spotlight Biden, lawmakers mourn Harry Reid MORE (D-Calif.) would require technology companies to provide “technical assistance” to investigators seeking access to locked communications.

A separate, non-legislative working group made up of lawmakers from the House Judiciary and Energy and Commerce committees — both of which claim jurisdiction over the issue — is scheduled to provide its legislative recommendations to the House by the end of this Congress, on Jan 3.

The Homeland Security report makes no mention of the Judiciary-Energy and Commerce panel in its section on congressional proposals.