McCaul’s Commission Embraces Compromise And Rational Discourse

Ryan Hagemann Policy Analyst, Niskanen Center
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The legal battle between Apple and the FBI is boiling like a pot over an open flame. But we now have an opportunity to turn down the heat. Last week, Rep. [crscore]Michael McCaul[/crscore], Chairman of the House Homeland Security Committee, unveiled a promising legislation that would create a commission to address the challenges facing law enforcement in the digital age, and recommend a resolution to the heated debate about encryption and digital security. This could not have come at a better time.

The commission would bring together a diverse group of stakeholders — law enforcement, the technology industry, civil society organizations, privacy advocates, economists, cryptographers, and others — in an attempt to develop policy recommendations for congressional consideration. Some have scoffed at this idea, touting it as yet another toothless “blue ribbon” commission.

However, the policy proposals currently circulating in Congress are more likely to heighten than ease tensions between civil libertarians and surveillance hawks. Sens. [crscore]Dianne Feinstein[/crscore] and [crscore]Richard Burr[/crscore] are said to be working on legislation that would mandate backdoor access into encryption. On the other side, Reps. [crscore]Ted Lieu[/crscore] and [crscore]Blake Farenthold[/crscore] have introduced the ENCRYPT Act to federally preempt state legislatures from touching the encryption issue — a worthwhile bill, but lacking as a platform for engaging stakeholders in this debate. Rather than fan the flames, McCaul’s proposed commission offers a chance to cool off and explore the possibility of a broadly acceptable settlement.

The battle between the FBI and Apple perfectly illustrates the daunting complexity and the dramatic stakes of the larger controversies around law enforcement and digital security. The legal and technical nuances on both sides of the debate are complicated, esoteric, and at times downright confusing — especially for average Americans.

A recent Pew poll found that a majority of Americans support the FBI’s demand that Apple help them crack the encryption on the San Bernardino shooter’s iPhone. Yet even more recently, a Reuters poll found the opposite: most Americans actually support Apple’s refusal to do the government’s bidding. What’s certain is that, given the labyrinthine complexities involved, there is a great deal of uncertainty about who is in the right and what the appropriate policy response should be. That’s where the proposed Commission comes into play.

Sen. [crscore]Mark Warner[/crscore] pointed out at a conference at the Bipartisan Policy Center last week that a Commission is needed to ensure we don’t impose a “static solution” to digital security issues in a time of rapid technical innovation. Warner and McCaul, writing in the Washington Post in December, correctly noted that “the individuals most capable of finding creative ways to protect our security … are the stakeholders themselves.” In an era where Washington elites routinely assume they have all the answers, this is an extremely refreshing change of tone.

As a result, the proposed Commission has garnered support across the political spectrum. In the midst of the FBI-Apple fight, the Wall Street Journal editorial board threw its support behind McCaul’s proposal. And last week, Apple’s CEO, Tim Cook, called for just such a commission “to discuss the implications for law enforcement, national security, privacy and personal freedoms,” adding that “Apple would gladly participate.”

At a time when Congress is viewed unfavorably by the American people, this Commission offers  lawmakers an opportunity to show that they remain able to find bipartisan solutions to issues of immense importance. Pomp and bombast have been the norm in Washington for too long, and partisan brinksmanship has produced little but increasingly bitter paralysis.

Congress should give the Commission a chance to demonstrate that the legislative branch has not, in effect, ceded its authority to the courts and the executive by defaulting on its deliberative responsibilities. An issue as technically and legally complex as digital security — an issue of momentous consequence for national security, civil liberties, and America’s vital technology industry — demands more than a mindless game of ideological chicken. It demands an airing of the tricky facts, a fair hearing of the range of stakeholder concerns, and a good-faith attempt to balance competing interests and establish a workable peace.

In time, new divisive disputes over encryption, privacy, and the broader issue of government surveillance are bound to bubble to the surface. The skirmish between the FBI and Apple is just the most recent manifestation of the forces and interests in play. Until we turn down the heat in this debate, law enforcement, the tech community, and public advocacy groups  will continue to talk past each other. McCaul’s Commission will enable real engagement and offer cooler heads a chance to prevail — but only if Congress sanctions it.