Encryption Commission: Making Sense of Critical Policy Options

In the current legal battle between Apple and the FBI over a San Bernardino terrorist’s cell phone, critical security, technology, privacy, legal, and counterterrorism issues have all come to a head. As different judges have come to different conclusions on this issue and with Apple and the Department of Justice appealing these cases, Congress has also entered the debate. In a vigorous debate held by the House Judiciary Committee on March 1, no consensus was forthcoming and the issue cut across political lines. It is one that defies simple solutions.

Regrettably, this issue is not simple. Many of the best technical minds and companies have stated that allowing special access or creating software to disable passcode protections could have at least four unintended consequences. First, some have argued that once this software tool is created, other countries will ask for it as well. Second, creating software that weakens the protections around devices will result in persistent, widespread technological vulnerability. Third, further innovation could stifle the FBI’s demands and create an encryption arms race. Fourth, several legal questions have emerged in the San Bernardino case brought by the Department of Justice. These include arguments that forcing Apple to create software would run afoul of the First amendment by forcing Apple to speak.

In response to conflicting priorities in a highly technical issue, lawmakers on both sides of the aisle, as well as Apple, have suggested the idea of an encryption commission to leverage the expertise and perspectives of different stakeholders. Rather than Members talking past each other, Congress should not rush to a solution, consider a commission to study the issue of encryption and the going dark problem, and maintain essential counterterrorism tools.

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