The Encryption Wars Will Return One Way or Another

Disputes over encryption and digital security are sure to rock Congress and the executive branch this year, sparked by sudden crises rather than coolheaded consideration, a top congressional aide said Monday.

“I see no way in which that was a one-time skirmish,” Austin Carson, legislative director for House Homeland Security Chairman Michael McCaul, R-Texas, said during the State of the Net conference.

Carson was referring to the high-stakes legal battle early last year when Apple refused to help the FBI crack into an encrypted iPhone used by San Bernardino shooter Syed Farook. The FBI asked a judge to force Apple to help it break through the phone's defenses but withdrew that request when an unnamed third party sold the bureau a tool that allowed it to break in without Apple’s help.

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McCaul plans to re-introduce legislation to create a commission charged with examining tradeoffs between privacy and security in digital technology. McCaul and Sen. Mark Warner, D-Va., the new ranking member on the Senate Intelligence Committee, jointly proposed that commission last year in the wake of the Apple-FBI standoff but were unable to get the commission to a floor vote.

McCaul hopes to fine tune the commission proposal and update its mission to reflect new and emerging challenges before introducing legislation this year, Carson said.

The alternative, he said, would be letting events drive policy.

“You’ll probably have two cases, one where someone’s child’s been abducted … and another with national security implications,” he said. “And it’s going to be a horribly irrational conversation."

Also expect a legislative focus on improving Homeland Security Department cyber resources and speeding hiring this year, Carson said.  

McCaul has pledged to reintroduce legislation that would elevate DHS’s cyber mission and separate it out from other DHS divisions focused on critical infrastructure protection. That legislation was bogged down in the previous Congress between numerous House committees with jurisdiction.