A National Debate on Encryption — Now
"The question of encryption is too central to this country’s future to answer without a real dialogue. The vehicle for that debate is the McCaul-Warner commission," write Jane Harman and Newt Gingrich.
The battle over the iPhone involved in the San Bernardino, Calif., shooting last year has ended in a truce. Hours before Apple and the Justice Department would have faced off in court, the FBI announced it had found a new way to get data off the device. In Silicon Valley — and far beyond — many sighed with relief.
But none of the questions at the heart of the encryption debate has been resolved. We don’t yet know if any of these tools were involved in the attacks that struck Brussels, for instance. In the wake of some new plot that makes use of secure communications technology, these disputes will pick right back up again. What kind of obligation do tech firms have to fight terrorism? Are our law enforcement and intelligence tools ready for the age of Telegram, Signal and -WhatsApp? Who should judge the equities involved in guaranteeing our security, both physical and digital?
We come to these questions with different perspectives, and we disagree on a number of issues. But over the course of 36 cumulative years in the House of Representatives, both of us saw Congress struggle with high-tech arguments. Simply put, the House and Senate are not learning institutions. That’s why members should use the Apple/FBI cease-fire as a chance to get smart. To start, Congress should pass without delay Rep. Michael McCaul (R-Texas) and Sen. Mark Warner’s (D-Va.) bipartisan proposal for an encryption commission.
The question of encryption is too central to this country’s future to answer without a real dialogue.
To put the challenge in perspective, consider this: 159 representatives and 54 senators hold law degrees, but only a tiny handful, such as Reps. Will Hurd (R-Texas) and Ted Lieu (D-Calif.), have earned degrees in computer science. Few have ever used hardcore privacy tools like TOR, Tails or Qubes; few could explain how common encrypted apps, like Apple’s iMessage, actually work. And while a number of talented aides bring their own expertise to the table, especially on key House and Senate committees, Capitol Hill is not exactly drawing the country’s top technical minds. Members lack the background to ask smart questions about cryptography, let alone to legislate the answers.
And yet these questions can’t wait for some future, digital-native generation of lawmakers. Already Apple has vowed to escalate the “crypto wars”: The company is exploring ways to secure future phones — as well as its backup service, iCloud — against its own engineers. Those moves would shut down the counterterrorism cooperation that, for the moment, still takes place. Meanwhile, jihadist groups are only growing more technically sophisticated. Last December, for example, saw the launch of Kybernetiq, a digital publication that calls itself “the first German-language magazine by mujahedeen on information technology, communications, and security.”
Confronting this landscape, McCaul and Warner have offered a blueprint for a better dialogue. Their National Commission on Security and Technology Challenges would convene 16 experts, appointed on a bipartisan basis from every relevant sector. They would have a mandate to run the numbers, to study encryption’s benefits to national security and American industry, as well as its costs to law enforcement. They could frame a genuine national dialogue on a question that few Americans understand.
Lawmakers can’t afford to make the same mistake on encryption. If members don’t build the groundwork for smart decisions, someone else will take the initiative, making the moves that define the future of privacy, security and civil liberties.
Of course, we know from experience that lawmakers — like attorneys cross-examining a witness — don’t like to ask questions if they can’t control the answers. Back in 2007, one of us proposed a national commission to study the way that radical beliefs become violent actions. After passing the House with overwhelming bipartisan support, the measure was torpedoed in the Senate by cynical claims that we were reinventing J. Edgar Hoover’s COINTELPRO. If Congress had been more invested in finding answers back then, we have to imagine that our effort to counter the Islamic State in Iraq and Syria’s sophisticated online recruitment would be in much better shape today.
Lawmakers can’t afford to make the same mistake on encryption. If members don’t build the groundwork for smart decisions, someone else will take the initiative, making the moves that define the future of privacy, security and civil liberties. That might turn out to be executives at Apple, Facebook or Snapchat, true believers like Edward Snowden or, worse, people who wish Americans harm.
We each have private hopes, of course, that an expert, unbiased commission will recommend what we already believe. But we’re willing to learn that we have things completely backward; Apple, the Obama administration and members of Congress should be just as open. The question of encryption is too central to this country’s future to answer without a real dialogue.
The vehicle for that debate is the McCaul-Warner commission. Congress should establish it now.
The opinions expressed here are solely those of the authors.
About the Authors
Digital Futures Project
Less and less of life, war and business takes place offline. More and more, policy is transacted in a space poorly understood by traditional legal and political authorities. The Digital Futures Project is a map to constraints and opportunities generated by the innovations around the corner - a resource for policymakers navigating a world they didn’t build. Read more