House Homeland Security Committee Chairman Michael McCaul wants a com­mis­sion of out­side ex­perts on pri­vacy, se­cur­ity, and law en­force­ment to study the is­sue.

House Homeland Security Committee Chairman Michael McCaul wants a com­mis­sion of out­side ex­perts on pri­vacy, se­cur­ity, and law en­force­ment to study the is­sue. Susan Walsh/AP

The Hill's Newest Encryption Fight -- Over Committee Turf

Some lawmakers created a “working group,” while others want a “commission.”

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.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.