OTI Cannot Support Bill to Create Congressional Commission to Address Encryption Controversy

Today, House Homeland Security Committee Chairman Michael McCaul and Senator Mark Warner introduced the Digital Security Commission Act of 2016, which would establish a new “National Commission on Security and Technology Challenges”. The bill, prompted by the recent debate over whether and how policymakers should address concerns that the increasing deployment of encryption technology is hindering government investigations, would have a wide-ranging mandate to propose new policies and legislation to address those concerns. New America’s Open Technology Institute (OTI), which has helped lead the fight in support of strong encryption and against surveillance backdoors, does not support this legislation as currently written.

The following statement may be attributed to OTI’s Director, Kevin Bankston:

“Although we very much appreciate the bill sponsors’ intent—to prevent knee-jerk legislation that may undermine our digital security, by instead proposing this new commission—we fear that it may ultimately result in just that. The bill’s lead sponsor has made clear that he wants this commission to “set the table” for Congressional action to resolve the encryption controversy, and the bill reflects that goal. Based on how the bill currently defines the commission’s mission, the commissioners would necessarily have to consider and ultimately may even recommend legal mandates to force technology companies to redesign or weaken their products’ security features. But such a surveillance backdoor mandate may just be the appetizer. The bill goes so far as to task the commission with considering changes to the full range of laws governing wiretaps and warrants for digital data, which means the commission may ultimately offer Congress a huge menu of changes to a wide range of surveillance and privacy law.

“We also appreciate the bill sponsors’ attempt to create a balanced commission to address the tough issue of encryption and its impact on government investigations, and we appreciate the continued willingness of the sponsors’ staff to listen to our concerns on that score. But with its members appointed by political leadership and therefore likely to include inside-the-Beltway establishment experts with security clearances, we fear that this commission may end up stacked in favor of law enforcement and intelligence interests. And with such a broad mandate, there’s no shortage of new and dangerous proposals that such a commission might generate that those who care about digital security and privacy would have to fight off.

“Ultimately, we question the premise of this commission: that if reasonable people just sit down and talk we can find some ‘solution’ to the encryption ‘problem’ that has so far evaded us. We’ve already had a wide range of blue ribbon expert panels consider the issue, including the President’s own Review Group and diverse task forces convened by MIT and Harvard, and all have concluded either that surveillance backdoors are a dangerously bad idea, that law enforcement’s concerns about ‘going dark’ are overblown, or both. These are the exact same conclusions that policymakers reached when considering the issue of encryption in the 1990s during the so-called ‘Crypto Wars’. Creating a commission to rehash that debate will do little good but could do great harm, therefore OTI cannot support this bill as currently written.

“That said, if Congress insists on moving forward with such legislation, OTI looks forward to continuing its dialogue with the bill’s sponsors and members of the relevant committees in the hope of improving the bill via amendments. And if such a bill passes into law, we look forward to working with the resulting commission as best we can in order to ensure that its recommendations do not short-sightedly sacrifice our digital security and privacy in the name of national security.”