Amid Apple v FBI, Framers of Stakeholder Committee on Encryption Predict 'Broad Bipartisan Support'

The legislators touted the soon-to-be-proposed commission during a Bipartisan Policy Center event as a way to bring together industry stakeholders -- including representatives of the FBI, Silicon Valley, the intelligence community and privacy advocates -- to find a solution to the encryption debate. They said the commission will be "modeled after" one created in response to the Sept. 11, 2001, terrorist attacks.

McCaul predicted the bill will get "a lot of momentum" in response to what he called an "urgent situation," saying he expects the Obama administration to be supportive of the bill and that it will be fast-tracked. He added that within the bill will be provisions holding the committee to a six- or seven-month preliminary reporting requirement and a requirement for a full report in one year's time. "There is no legislative knee-jerk response right now that will solve this problem," said McCaul. "This is the only route I see that is solution-oriented. This is an urgent issue and I believe this is the best vehicle to get a solution." McCaul said the commission is important because stakeholders "aren't able to sit down and have a dialogue," and the proposed commission would enable that. "There could be a technology solution or a policy solution" to the Apple encryption case, said McCaul, adding that he and Warner "think there is a better solution" to the FBI's asking Apple to build a software to hack into its devices. Both legislators said the commission established by the coming legislation can be that better solution.

"Encryption is here to stay and protects American's personal information, financial information and intellectual capital," said Warner. "This is not a battle of security vs. privacy. It is a challenge to make security work in a digital environment." Warner said the legislation "will have 16 members [on a] commission" that will include an "officiator" member from the administration who will have a one-year term. If Congress had taken a similar approach to the proposed stakeholder commission "a few years back," the current litigation with Apple and the FBI "might not have been needed," said Warner. He also added that his fear is stakeholders on either side of the encryption issue "are talking past each other," and that the challenge of the commission will be figuring out "how to make sure this commission ends up being acted upon and the results get culminated into a set of rules that will protect people's privacy, ensure America's security and allow America's innovative [lead] to be maintained around the world." That challenge is "what we are working through with the stakeholders," he said.

McCaul and Warner joked about public perception of committees and how they are seen as not getting anything done, but vowed the proposed encryption commission will be different. "This could be a case where we prove the pundits wrong and actually get something done," said Warner. "It’s critically important [that we] set this up now, [and] get this commission working. There will be an interim report, but I think in many ways [this will] set the stage for congressional action." McCaul also touched on the need to incorporate international policies into the dialogue of the proposed committee, saying that China, Europe and other nations will look to the commission's findings. "There are international standards I think that will be in play with this commission," said McCaul. "This will have to have an international [aspect] to it." McCaul said China and other countries look to the U.S. on issues such as this, and that whatever comes from the commission "will be setting some of the standards" on this front.

Both legislators spoke of their desire to prevent terrorists attacks in the U.S. similar to those carried out in Paris last year. "If Congress does nothing and we get hit with a Paris-style attack, I don’t want that on my hands," McCaul said. "The whole point of the bill and the commission is to find a solution to a Paris-style attack where the attackers were using end-to-end encryption on apps to conduct a major terrorist operation. We want an action of Congress to prevent that kind of thing from happening in the U.S." Encryption "is part of the fabric of American security," Warner said. "Making sure that we have ways that we believe we go after criminals and terrorists in appropriate legal fashion is also absolutely necessary to an American in the 21st century."