By Amir Nasr
February 21, 2016 at 8:00 am ET
Encryption is firmly in the limelight thanks to the emerging battle between Apple Inc. and a federal court that has ordered the tech giant to build software to hack the security features on an iPhone of interest.
This particular battle is new. The issue is old. For years, lawmakers have grappled with how to balance individual privacy protections and law enforcement’s need for access to encrypted communications. They haven’t gotten very far.
That could change, thanks to a bipartisan partnership forged between House Homeland Security Chairman Michael McCaul (R-Texas) and Senate Intelligence Committee member Sen. Mark Warner (D-Va.).
Earlier this year, the pair floated an idea for a lengthy but doable way to satisfy both privacy and security concerns. At first blush, their proposal looks like a tame non-answer to the problem. But it may be the only way to bridge the gap between government-wary technophiles and security hawks.
McCaul and Warner want to set up a commission made up of members of the tech community, privacy advocates, and the law enforcement and intelligence communities to hash out a solution. That commission would be tasked with review of what law enforcement officials face when they are denied access to encrypted communications, even with a court order. The group would then draft recommendations for what to do about it.
It was a sleeper issue that roused attention only with tech geeks. But now it may have new legs. Sources familiar with the proposal say McCaul and Warner have spoken on the phone since the court issued its order to Apple. They are now thinking about how build momentum for their bill, which has yet to be introduced. McCaul and Warner’s staffs have also been in daily contact (often multiple times a day) to work on it.
The duo will have an opportunity this Wednesday at an event about encryption at the Washington-based Bipartisan Policy Center where they will discuss the legislation.
McCaul and Warner’s greatest strength in the assembly of their proposed commission is their joint credibility. McCaul serves as chairman of Homeland Security and has a strong law enforcement background. He served as chief of counterterrorism and national security in the U.S. attorney’s office in Texas prior to his time in Congress. He has also headed the Joint Terrorism Task Force in the Lone Star State.
Warner brings tech chops to the table. Before entering public service, Warner worked for more than 20 years in telecom. He was an early investor in Nextel, which later merged with Sprint. He made a big name (and big bucks) in the business.
Mixing the counterterrorism expertise of the conservative McCaul with the tech experience of the Democratic Warner could bring legitimacy to their proposal by appealing to people from both law enforcement and tech. When the two previewed their bill last month, they said it’s most imporant for the two communities that disagree so intensely over encryption to sit down and discuss how to move forward.
“The problem thus far is getting the experts in a room together. It’s been very difficult for the tech community to sit down with the FBI and vice versa, and with the Homeland [Security] and the Intelligence community,” McCaul said at the time.
Both Warner and McCaul said those most familiar with the issue (and therefore most passionate about their points of view) should be the ones that attempt to find a compromise.
The duo represents just the kind of convergence they are proposing on a broader scale. Tech shouldn’t just say no to law enforcement, they believe. They should engage on the issue and find an answer. With tech firmly lined up behind Apple on the encryption standoff, that’s a tall order. Warner’s presence could show the tech world that this effort won’t be another veiled attempt at creating a “backdoor” that could compromise the security of encrypted messaging platforms. If McCaul trusts Warner, the thinking goes, so should they.
“Encrypted technology is something that protects Americans’ privacy, but also is used by American enterprise, American defense, American intel,” Warner said in January. “Encryption was developed for both privacy and for security, so this notion that these two interests are pitted against each other, I think, is a false choice.”
Tech companies such as Google, Facebook and Twitter have already come out in support of Apple’s stance that creating a backdoor to encrypted communications sets a dangerous precedent. It is unclear whether Warner’s assurances could get them onboard with finding a compromise, but he also may offer the best shot at a way through the problem.
Warner and McCaul’s measured approach has been dismissed as a delay tactic, but it is more likely to succeed in Congress than ongoing efforts from Warner’s Senate Intelligence Committee leaders: Sens. Richard Burr (R-N.C.) and Dianne Feinstein (D-Calif.). Burr and Feinsten want legislation to require companies to give law enforcement a way to decode encrypted messages when there is a court order. Tech companies argue that there are no “one-time only” ways to do that. To let law enforcement “in” once could create an avenue that bad actors could later manipulate. They are likely to fight hard against such proposals.
Still, Feinstein renewed her call for such legislation on CNN after the court ruled. “I believe that as a government, we have every responsibility and duty to see that Apple provides that information,” Feinstein said. “I believe very strongly that Apple should voluntarily agree to it.”
Feinstein added that if Apple does not agree, she and Burr “are prepared to put forward a law which essentially would require that.”
Burr made remarks at a Senate Intelligence open hearing a few weeks ago that corroborate Feinstein’s claims. “I look at encryption and say, ‘We need to provide a tool for you to have the access to that information when the courts give you permission to do it.’ I could care less how that’s accomplished,” Burr said. He added they both want it to be voluntary, but will pursue the matter “in any fashion [they] can.”
Burr and Feinstein were the architects behind legislation signed into law in December that provides legal liability protections to private companies that share data with federal agencies to help protect against cyberattacks. That bill went through a tough fight, with three separate attempts on the Senate floor. The encryption bill is an even tougher sell for privacy and tech advocates. While tech was divided on cybersecurity, tech advocates say any measure that would weaken encryption is highly unlikely to receive any outside support from their world.
Amir Nasr previously worked at Morning Consult as a reporter covering tech.