A little over three months into 2017 and encryption is once again coming into focus.
Yesterday, in testimony before the Senate Judiciary Committee, FBI director James Comey was asked about the ongoing “Going Dark” problem. He noted that thus far, in just the first three months of this year, almost half of all pending cases at the FBI involved devices or systems that “cannot be opened with any technique” available to the federal law enforcement agency. He went on to note a “collision between privacy and security,” but stopped short of supporting a legislative mandate, arguing that while the encryption issue “may require a legislative solution,” it was premature for him to say anything definite. Sen. Dianne Feinstein (D-CA), however, was certain of her position, and noted her intention to reintroduce last year’s Compliance with Court Orders Act, co-sponsored with Sen. Richard Burr (R-CA) (around the 3:06:00 mark). For a more detailed analysis on the ins-and-outs of that bill’s many flaws, see here, here, and here.
The Burr-Feinstein legislation will undoubtedly set the tone for one extreme of the forthcoming encryption debate. I’d wager that on the other end of the spectrum we’ll hear a lot of the same talking points we heard during the height of the Apple vs FBI fight from this time last year. The same folks armed with the same messages are going to be entrenching themselves on the same battle-wearied policy hills, lobbing the same talking points at one another. Once more, the perfect is set to be the enemy of the good.
Maybe this time, however, we can aim to lift the voices of the moderate middle on this issue—those stakeholders that have all-too-unfortunately been drowned out by the more sensationalized messages from the polar extremes that often dominate the headlines. Instead of business-as-usual in the encryption debate, moderates on both sides of the debate need to signal support for the only other legislative proposal that has the political viability and compromise-oriented policy prescription necessary to defuse the Burr-Feinstein bill: the McCaul-Warner Digital Security Commission.
I’ve written about the Commission a lot over the past year and a half, but it remains as clear today as it did then that this approach is the only viable path forward towards achieving compromise on the encryption debate. Talks between the FBI and the technology industry, according to Comey, have been “good,” but he remains uncertain as to where—if anywhere— those conversations will lead. Those types of behind-the-scene stalemates are likely the reason a lot of tech companies, including Facebook and Apple, have signaled support for McCaul-Warner. If Burr-Feinstein is poised to move, it’s more imperative than ever that both encryption supporters and centrist politicians start putting their weight behind the only bill that respects the complexity of the issues involved in this debate.
The ebb and flow of policy priorities can sometimes feel cyclical, but few issues are as perennial as encryption (though net neutrality may give it a run for its money). As we prepare for yet another ride on this perpetual motion policy merry-go-round, it’s worth remembering that in between the polar extremes lies a significant moderate majority. In the event a political opportunity or necessity arises, the McCaul-Warner Commission is likely going to appeal more to those policymakers than either the “do nothing” approach or Burr-Feinstein. Despite all the loud voices in the encryption debate, it may be that silent moderate majority that ends up as the real heroes in this debate.