Amid a series of terror attacks and the court battle between Apple and the FBI, few members of Congress have any idea how to solve the thorny problems surrounding government access to encrypted data. But that hasn’t stopped them from fighting over who gets to come up with the solutions.
The issue has birthed a uniquely Washington kind of battle—between a “working group” and a “commission.”
On Monday, the House Judiciary Committee and the Energy and Commerce Committee formed a bipartisan working group of lawmakers to study encryption and make policy recommendations. The announcement was a clear rebuke to Rep. Michael McCaul, a Texas Republican, and Sen. Mark Warner, a Virginia Democrat, who have been pushing their own bill that would create a commission of outside experts on privacy, security, and law enforcement to study the issue.
McCaul is the chairman of the Homeland Security Committee, but his bill was referred to the Judiciary, Energy and Commerce, and Foreign Affairs Committees—leaving him with little control over its fate. Speaking to reporters Tuesday, McCaul argued that the creation of the joint working group doesn’t necessarily mean his bill is dead.
“I think they’re not mutually exclusive,” McCaul said of the two approaches. “It may be this working group could actually have good recommendations that the commission I have proposed would take into account.”
But the top lawmakers on the Judiciary and Energy and Commerce Committees appear to have no interest in taking up McCaul’s bill. “To be candid, I think the chairmen and ranking members of the two committees of jurisdiction did not feel comfortable punting on it, in their opinion, by going with the commission,” said Republican Rep. Darrell Issa, one of the eight members named to the House working group. “They wanted to have a more active role.”
Judiciary Chairman Bob Goodlatte sees McCaul’s proposal as a challenge to his committee’s rightful authority over a critical issue. “The Judiciary Committee is a particularly appropriate forum for this congressional debate to occur,” Goodlatte said at a hearing on the issue earlier this month. “As the committee of exclusive jurisdiction over the U.S. Constitution, the Bill of Rights, and the federal criminal laws and procedures, we are well-versed in the perennial struggle between protecting Americans’ privacy and enabling robust public safety.”
Goodlatte insisted that Congress (and presumably not a panel of outside experts) “is best-suited to resolve” the encryption debate.
The joint working group will hold regular meetings in the coming months with technical experts, government officials, and tech industry representatives. The group’s work could—but won’t necessarily—lead to legislation.
Encryption has become a particularly pressing issue as Apple and the FBI have battled over access to an iPhone used by one the San Bernardino shooters. The two sides reached an uneasy cease-fire Monday when the Justice Department delayed a court hearing, saying it had likely discovered a way of unlocking the device without conscripting Apple engineers to deactivate a security feature.
There is no evidence yet on whether the terrorists behind the attacks in Brussels Tuesday relied on encryption to evade surveillance. But the carnage that left more than 30 people dead is already leading to calls to ensure that intelligence and law enforcement agencies have access to the tools they need to thwart terrorists. “We do not know yet what role, if any, encrypted communications played in these attacks—but we can be sure that terrorists will continue to use what they perceive to be the most secure means to plot their attacks,” Rep. Adam Schiff, the top Democrat on the House Intelligence Committee, said in a statement.
“I do think it’s important that Congress act, especially after the events of today,” McCaul told reporters.
While the two House proposals would just study the issue further, Sens. Richard Burr and Dianne Feinstein, the leaders of the Senate Intelligence Committee, are looking to take more aggressive action. They are working on legislation to force companies to provide the government access to encrypted data—a proposal that is likely to face fierce resistance from the tech industry and privacy advocates.