Washington Has a Very Washington-Like Solution for the Apple-FBI Crypto War

Despite being locked in an acrimonious fight over the government’s ability to access encrypted communications, both Apple and the FBI say they agree on one basic principle: the need to strike a balance between privacy and national security interests. The problem is that no one can agree on what that should look like.

Now, two key lawmakers are stepping forward with a classic Washington proposal to kill debate on a controversial issue: They want to form an expert commission charged with coming up a set of proposals to thread the needle between ensuring consumer privacy and law enforcement’s need to access encrypted data, such as that stored on late-model versions of Apple’s iPhone.

A court order compelling Apple to help the FBI hack a phone belonging to Syed Rizwan Farook, one of the San Bernardino gunmen who killed 14 people in December, has ignited an intense debate over the extent to which encryption can be used to prevent government access to communications it seeks with a valid warrant. Apple has built its iPhone in such a way that it cannot access data stored on them without rewriting its iOS software. A California judge has now ordered it to do so. Apple has refused and said it will fight the order.

Rep. Michael McCaul (R-Tex.) and Sen. Mark Warner (D-Va.) previewed the legislation at a Bipartisan Policy Center event Wednesday and said they plan to introduce their bill in both the House and Senate next week. The exact shape of that bill remains unclear, but the lawmakers said Wednesday that the planned commission would include industry representatives, security experts, and cryptographers. It would be charged with delivering a preliminary set of recommendations in six months and a full report within a year of its formation.

The White House has so far remained non-committal on encryption legislation moving forward on Capitol Hill. Sens. Richard Burr (R-N.C.) and Dianne Feinstein (D-Calif.), the chairman and ranking Democrat, respectively, of the Senate Intelligence Committee are also developing legislation on the matter, but the details of their proposal remain unclear. “I don’t know at this point whether or not this will result in a piece of legislation that we will embrace,” White House spokesman Josh Earnest told reporters Wednesday.

Both Warner and McCaul acknowledged the tarnished reputation of Washington blue-ribbon commissions as a mechanism for shelving hot-button political issues.  “I’m not a big commission guy,” said McCaul, the chairman of the House Homeland Security Committee.

But he said the encryption issue was so complicated, and had such compelling arguments on both sides, that it was worth making the exception. McCaul noted that Apple and other company’s use of encryption helps ensure the security of banking, health, and other corporate records, which means that moves that weakening those protections could harm ordinary Americans.

“Encryption is part of the fabric of American security,” Warner, a member of the Senate Intelligence Committee, said.

But criminal and terror groups have also embraced the same encryption technology to shield their communications from law enforcement. NSA Director Michael Rogers has said the Islamic State gunmen that attacked Paris in November used encrypted communication tools. Another such attack would likely result in a civil liberties backlash in Congress and hardline measures on encryption technology. “If we get hit with a Paris-style attack, I don’t want that on my hands,” McCaul said.

As far as commissions go, the McCaul-Warner proposal has gained widespread backing, with Apple saying they support the idea. FBI Director James Comey has also said he wants a national conversation on balancing privacy and national security interests on encryption policy, and both McCaul and Warner said Wednesday that’s what they hope to achieve. A Wall Street Journal editorial endorsed the measure Wednesday.

But many security experts who have studied the issue are skeptical that it is possible to find a technical compromise that protects both consumer privacy and ensure security. Cryptographers argue that compromising encryption in such a way to allow third-party access fatally undermine those systems.

Chris Inglis, a former deputy director of the NSA, said during a during a panel discussion following McCaul and Warner’s remarks that cryptographers’ fears are overstated. “I know many of them, and they would say it’s very hard,” Inglis said, responding to arguments by cryptographers that allowing access to encrypted data is impossible while also ensuring security.

That very technical argument is one with political repercussions. “Cryptographers have a political agenda, and they have followed the same agenda for 20 years,” James Lewis, a senior fellow at the Center for Strategic and International Studies, said. “You’re never going to have perfect security. You’re never going to have perfect cryptography.”

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