Encryption Fight in Congress Shifts to Working Group

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By Kyle Daly

March 30 — The FBI battle with Apple Inc. over the San Bernardino, Calif., shooter’s iPhone may have come to an abrupt end, but the broader fight over how the government will deal with encryption and law enforcement access to data is just beginning.

In Congress, a newly formed House working group has seized the reins on the issue, sidelining an earlier proposal by House Homeland Security Committee Chairman Michael McCaul (R-Texas) and Sen. Mark Warner (D-Va.) to create an independent commission .

The group aims to “identify potential solutions that preserve the benefits of strong encryption—including the protection of Americans’ privacy and information security—while also ensuring law enforcement has the tools to keep us safe and prevent crime,” according to a March 21 statement by top lawmakers on the House Judiciary and Energy and Commerce committees, including chairmen Robert Goodlatte (R-Va.) and Fred Upton (R-Mich.).

The lawmakers stressed their influence over encryption matters, signalling that any House action on the issue would likely originate with the working group, not the commission.

“The House Judiciary Committee and Energy and Commerce Committee have primary jurisdiction over encryption and the issues it presents for citizens, law enforcement, and American technology companies,” Goodlatte, Upton, and the others said in the statement.

One working group member, Rep. Suzan DelBene (D-Wash.), told Bloomberg BNA that she views the group as an opportunity to “get this conversation started” and collect information from all stakeholders on how to shape encryption policy going forward.

It's unclear at best whether the working group can make any headway this year. A senior House Energy and Commerce aide told Bloomberg BNA that the group hasn't decided which initiatives or legislation to try to advance.

Still, members of the group say it's a better venue for encryption and data security issues.

“I don’t believe we should turn [encryption] over to an outside commission. This is our responsibility. We have the expertise. We have the access to the advice from the outside that we need, both in public hearings and classified briefings,” House Judiciary Chairman Bob Goodlatte (R-Va.) said recently on an episode of C-SPAN’s “Communicators.”

Rep. Zoe Lofgren (D-Calif.), a senior House Judiciary Democrat, told Bloomberg BNA that she prefers the working group approach.

The McCaul-Warner commission bill (H.R. 4651), backed mostly by Republicans in both chambers, is awaiting action by multiple committees, including Goodlatte's and Upton's panels, the House Foreign Affairs Committee, and the Senate Homeland Security and Governmental Affairs Committee. But with the working group now in play, those committees may never act. A House Judiciary aide told Bloomberg BNA on background that the committee has no intention of advancing the McCaul-Warner bill.

Separately, Senate Intelligence Committee Chairman Richard Burr (R-N.C.) is expected introduce a bill along with Sen. Dianne Feinstein (D-Calif.) that would force companies such as Apple to comply with court orders regarding encrypted data.

Advocates Keen on Working Group

Privacy and civil liberties advocates told Bloomberg BNA that they are more comfortable with the encryption working group than with the McCaul-Warner commission proposal.

The Electronic Frontier Foundation (EFF), American Civil Liberties Union (ACLU) and Open Technology Institute have already expressed concern that the commission would give too much influence to law enforcement and intelligence interests while dragging up issues like mandated backdoors that the organizations believe are settled matters of law. Privacy advocates also see the working group members as savvy about encryption.

Mark Jaycox, who heads up legislative issues for the EFF, said he views the lawmakers behind the working group generally as allies of strong encryption and data privacy protections.

The Judiciary and Energy and Commerce committees “understand the [encryption] issue, have covered the issue and have clearly understood a lot of the technical aspects,” Jaycox said.

To contact the reporter on this story: Kyle Daly in Washington at kdaly@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com