Erin Kelly

Thursday, February 24, 2016 

WASHINGTON — As the Justice Department and Apple fight a legal battle over unlocking a terrorist's iPhone, two members of Congress are pushing bipartisan legislation to try to end the high-stakes encryption war.

House Homeland Security Committee Chairman Michael McCaul, R-Texas, and Sen. Mark Warner, D-Va., a former tech entrepreneur who serves on the Senate Intelligence Committee, will introduce a bill next week to create a national commission on digital security. The panel would try to find ways to help federal agents catch terrorists who communicate with encrypted cellphones and apps without sacrificing Americans' privacy or making them more vulnerable to hackers.

If Congress had created a commission a few years ago, the fight between the federal government and Apple may have been prevented, Warner said Wednesday.

"My fear is we're talking past each other," the senator said during an appearance with McCaul at the Bipartisan Policy Center. "This is not going to get fixed if we keep doing that."

The 16-member panel, modeled after the 9/11 Commission that made recommendations on how to prevent terrorist attacks, would be made up of civil liberty and privacy advocates, law enforcement and intelligence officials, professors, lawyers, tech executives, and computer science and cryptography experts. Its first report with recommendations to Congress would be due about six months after its creation, Warner said.

McCaul said Congress needs advice from an expert commission to prevent an attack against the U.S. by terrorists communicating through encrypted apps, as happened in Paris in November.

"If we do nothing and get hit with a Paris-style attack, I don't want that on my hands," McCaul said.

McCaul and Warner had already come up with the idea for the commission before the struggle between the FBI and Apple over unlocking the iPhone of one of the terrorists who shot and killed 14 people and wounded more than 20 others in an attack in San Bernardino, Calif. in December.

A federal magistrate last week ordered Apple to cooperate with the FBI. The iPhone used by terrorist Syed Farook is encrypted, meaning that no one but the user can open it. The FBI believes that Farook's phone could contain information to help explain the motive for the attack and resolve questions about whether Farook and his wife, Tashfeen Malik, worked with others to plot the mass shooting. The couple was killed in a shootout with police.

Apple is challenging the judge's order, saying that the FBI's request would force them to build a backdoor into encrypted technology that would provide the government — and hackers and identity thieves — with potential access to the iPhones of millions of Americans.

Apple and other tech companies have strengthened their encryption in recent years to meet consumer demand for greater privacy. That demand increased in the wake of the 2014 revelations by former National Security Agency contractor Edward Snowden about the NSA's mass surveillance of Americans' phone records.

The legislation by McCaul and Warner is an attempt to get all sides in the debate to come up with recommendations on how to deal with growing law enforcement concerns that encryption is making it difficult for them to investigate and prosecute suspected terrorists and other criminals, including murderers and child molesters.

Apple executives signaled their support for the legislation Monday in a post on the company's website that said "Apple would gladly participate in such an effort" to form a commission.

Manhattan District Attorney Cyrus Vance, Jr., who has criticized encryption for thwarting criminal prosecutions in New York, said that any commission that Congress creates should convene quickly and finish its work within 90 days.

"Time is not a luxury that state and local law enforcement, crime victims, and communities can afford," Vance said in a statement.

In a swipe at Apple, Vance added that "Congress has held numerous hearings on encryption since September 2014 and, to my knowledge, Apple has not testified at any of them."

"I am pleased that the company is willing to join the conversation now," he said.

Tech companies hope the McCaul-Warner bill will win out over any legislation to force companies to build backdoors into encrypted devices.

Sen. Dianne Feinstein, D-Calif., and Senate Intelligence Committee ChairmanRichard Burr, R-N.C., plan to introduce a bill to require companies to provide encrypted data to the government if law enforcement officials have a court order.

Feinstein, who serves as the committee's vice chairman, said she met with Warner on Monday to discuss his legislation.

"I have no problem with it; I think it's fine," she said. "But I think it does not contravene passing a bill which Senator Burr and I are trying to work out which simply says everyone must cooperate if there is a 'probable cause' court warrant. . . . No company should be above our law."

Thomas Ristenpart, a technology professor at Cornell University and a member of the Cornell Tech Security Group, said the commission that McCaul and Warner are seeking would be "a great step forward" in finding solutions to the challenges posed by encryption.

"The answers to these questions aren't easy to find and will impact not just the United States but the whole world," the professor said.