Lawmakers set to unveil bill for encryption commission

A bipartisan pair of lawmakers is set to introduce legislation that would establish a national commission to figure out how police can get at encrypted data without endangering Americans’ privacy.

“I do think this is one of the greatest challenges to law enforcement that I have probably seen in my lifetime,” said House Homeland Security Committee Chairman Michael McCaul (R-Texas), a former federal prosecutor, during a conference call Tuesday with reporters.

{mosads}The bill, which McCaul first discussed in a December speech, is intended to cut through the heated rhetoric that has defined the encryption debate in the wake of the terror attacks in Paris and San Bernardino, Calif.

“What we’re trying to do is get that collaboration started,” said Sen. Mark Warner (D-Va.), who joined McCaul on the call and will sponsor the upper chamber bill. “Let’s get the experts in the room.”

With the proliferation of encrypted devices, law enforcement officials have warned that criminals and terrorists are increasingly relying on encryption to go dark and hide from authorities. In Paris, investigators said the attackers used the popular encrypted app Telegram to help plan the assault that killed 130 people.

In response, law enforcement and some lawmakers have pressed major tech firms to ensure investigators can access encrypted data when compelled by court order.

But the tech community and privacy advocates have resisted, arguing that such guaranteed access would weaken online privacy and security. Any encryption entry point creates vulnerabilities that could be exploited by nefarious actors as well as government officials, they say.

The White House has tried to engage Silicon Valley on the topic, recently meeting with top tech executives on the West Coast. But the Obama administration’s overtures have been rebuffed at times and lawmakers believe the process must move quicker.

These two sides, Warner said, “are at loggerheads.”

A commission involving all parties moves this discussion “beyond the partisan back and forth and establishes this as a national priority,” he added.

The panel would include tech industry leaders, privacy advocates, academics, law enforcement officials and members of the intelligence community.

McCaul said the group would be given “a tight time frame” to develop “recommendations to the Congress as to what can be done to solve this urgent, and I think very challenging threat to our national security.”

Those recommendations would likely involve a host of technological options, the lawmakers said, but could include legislative proposals as well.

“We’re trying to get to a place where we can get to a solution,” McCaul added.

The two lawmakers declined to discuss specific tech companies that might participate, but Warner said the idea has “had a very positive reception” among those that would likely be involved.

A Congressional aide with knowledge of the call told The Hill the bill would be introduced “in the near future.”

“We don’t have a hard date at this time,” the aide said.

How the bill is received on Capitol Hill remains to be seen. Several of Congress’s staunch encryption defenders have backed the concept, but prominent committee and party leaders are not yet on board.

In the upper chamber, Sens. Richard Burr (R-N.C.) and Dianne Feinstein (D-Calif.) — the top two members, respectively, of the Intelligence Committee — are working on their own encryption bill.

The Burr-Feinstein legislation would force companies to build their encryption so they could respond to a court order for secured data.

Apple recently said it could not comply with such a request because even Apple itself cannot access encrypted data on its devices. Technologists insist companies must be locked out of their own secured data to ensure that everyday digital activities are protected.

Warner sits on the Intelligence Committee and said he would discuss his efforts with Burr and Feinstein.

“I think having a healthy debate about different approaches makes sense,” he said.

Ultimately, Warner and McCaul think their proposal can win out.

McCaul said they initially looked at options similar to the ideas Burr and Feinstein have floated and “found that they were problematic.”

Warner agreed.

“I just don’t believe there is that single silver bullet that even exists, at least at this moment,” he said.

— Updated 1:01 p.m.