Rep. Michael McCaul (R-TX) and Sen. Mark Warner (D-VA) will soon formally propose a digital security commission with aims to bring stakeholders together to discuss and propose solutions to “security and technology challenges in the digital age.”
“The tech is way ahead of the policymakers,” McCaul said at an event at the Bipartisan Policy Center on Wednesday.
Warner noted that the relationship between the intelligence community and the tech sector had become adversarial as the two sides “talk past each other.”
At the heart of the committee is the delicate balance between the needs (and wants) of investigators seeking encrypted information and the rights and privacy of the American public.
“There are tensions,” Warner said, “but we want to maintain American innovation, we want to maintain American privacy rights, and we definitely want to make sure Americans are safe.”
The pairing of McCaul, the chair of the House Committee on Homeland Security and a former federal prosecutor, and Warner, a former tech and telecommunications investor, is emblematic of the cooperation that the two hope to bring forth with a committee that would include representatives from Silicon Valley, the FBI, privacy advocates, encryption experts, and law enforcement agencies.
The issue of criminals using encryption to hide their tracks — known as “going dark” — has been brought into the spotlight by Apple’s public battle with the FBI over creating a “backdoor” for investigators to access the encrypted iPhone of Syed Farook, the suspected shooter in the San Bernardino attack last December.
A similar discussion arose surrounding the assertion that encryption was used in the planning of the November 2015 Paris attacks, though the extent to which encryption was actually used remains unclear.
McCaul had previously promised that the commission “will not be like other blue ribbon panels: established and forgotten” and that it will be required to build “a range of actionable recommendations that protect privacy and public safety.”
“I’m not a big commission guy either,” the congressman said at Wednesday’s event, “I was sceptical myself.”
But McCaul suggested a sense of duty to act: “If Congress does nothing, as some would advocate […], and we get hit in the United States with a Paris-style attack — I don’t want that on my hands.”
Despite McCaul’s experience as a prosecutor and Warner’s time in the tech industry, the two seemed to switch positions as they discussed their plan with the press.
McCaul noted that there would be no “knee-jerk” legislative response to the issue of encryption, while Warner expressed some sympathy with the argument that the FBI’s claim against Apple was a necessary “one-off” incident, not a precedent for further policy.
The lawmakers did not want to speculate as to what proposals the commission might make and felt that current litigation — which they suggested may have been avoided if a commission had existed earlier — should proceed through the judicial system without congressional interference.
Warner also emphasised that the commission was not about encryption alone but about digital security in general, both in the present and as it may evolve in the future.
McCaul and Warner hope to introduce their legislation creating the committee next week. Warner noted that he expected the bill to receive “broad bipartisan support” and for it to be fast-tracked into effect.
“I think this could be a case where we prove the pundits wrong and actually get something done.”
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