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

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.