Warner, McCaul lead coalition to establish digital security commission

congressU.S. Sen. Mark R. Warner (D-VA), a member of the Senate Intelligence Committee, and House Homeland Security Committee Chairman Michael McCaul (R-TX) led a bipartisan group of colleagues in the Senate and House today in introducing legislation to establish an independent National Commission on Security and Technology Challenges.

The digital security Commission will bring together all stakeholders, including tech leaders, law enforcement, the intelligence community, privacy and civil liberties advocates, computer science researchers, and global commerce leaders, who will be charged with developing recommendations for maintaining privacy and digital security while also finding ways to keep criminals and terrorists from exploiting these technologies to escape justice.

In addition to Sen. Warner, the legislation is co-sponsored in the Senate by Sens. Cory Gardner (R-CO), Brian Schatz (D-HI), Susan Collins (R-ME), Michael Bennet (D-CO), Shelley Moore Capito (R-WV), Angus King (I-ME) and Dean Heller (R-NV). In addition to Chairman McCaul, House co-sponsors are Reps. Jim Langevin (R-RI), Patrick Meehan (R-PA), Suzan Delbene (D-WA), Mike Bishop (R-MI), Ted Lieu (D-CA), Will Hurd (R-TX), Kathleen Rice (D-NY), Blake Farenthold (R-TX), Eric Swalwell (D-CA), Dan Donovan (R-NY), Jerry McNerney (D-CA), Barbara Comstock (R-VA), Mimi Walters (R-CA), Ryan Costello (R-PA), and Dave Reichert (R-WA).

Under the McCaul-Warner proposal, a 16-member Commission, which will include a broad range of individuals with specific expertise, will be appointed in equal numbers by the bipartisan leadership of the House and Senate. The Commission also will include a nonvoting representative selected by the Administration. The Commission will be charged with issuing an interim report within six months, and will be required to submit majority recommendations for Congress to consider within 12 months of the law’s enactment.

“As someone who spent nearly two decades in the tech industry, I recognize that there are no easy or simple solutions to the challenges posed by the growing use of secure technologies. The same tools that allow terrorists and criminals to evade detection by American intelligence and law enforcement are also used each day by Americans who rely upon secure technologies to safely shop online, communicate with friends and family, and run their businesses,” said Sen. Warner. “I believe that we can strike an appropriate balance that protects Americans’ privacy, American security, and American competitiveness, but we won’t achieve that while all sides continue to talk past each other. What we don’t want is a solution that could simply drive terrorists to use software and hardware based overseas, pushing their communications even farther out of reach for American law enforcement and intelligence. Chairman McCaul has been a solid partner in this initiative, and I appreciate the support for this proposal from colleagues in both parties and on both sides of Capitol Hill.”

“The challenge of protecting national security and digital security simultaneously, is complex. The ongoing Apple vs. FBI dispute is only a symptom of a much larger problem. But we are almost certain to see this scenario repeated unless the larger issue is addressed. Law enforcement clearly needs the ability to gain lawful access to information that can stop future attacks,” said Chairman McCaul. “I am proud to partner with Senator Warner on this initiative and I urge our colleagues in both chambers to quickly establish this Commission so we may effectively address this challenge for law enforcement now and in the future.”

Digital security and communications technology and national security are inextricably linked. Digital security and communications technology, including encryption, protects critical infrastructure, financial systems, health records, online security, commercial transactions, government information, and personal privacy.​ But the same tools that Americans rely on to safely shop online, protect their health records, exchange emails and texts away from prying eyes, and run their businesses can be exploited by terrorists and criminals to hide their activities from U.S. intelligence and law enforcement. Because extremists are “going dark,” law enforcement officials warn that we are “going blind” in our efforts to track them.

It is clear that the U.S. faces a difficult question of how to take advantage of privacy and security benefits of digital security and communications technology while minimizing risks posed by its abuse– yet no simple path forward exists despite years of dialogue between the tech sector, law enforcement, and national security professionals. The Commission will bring together leaders from tech companies, the privacy community, law enforcement, and others to examine the intersection of digital technology and national security and determine the implications for national security, public safety, data security, privacy, innovation, and American competitiveness in the global marketplace.​ The panel will engage with all the key stakeholders to get to the heart of these challenges and publish findings and recommendations in a publicly available report for all to consider.

“Advances in technology drive the world economy and improve privacy for consumers, but those advances do not come without challenges. As the debate continues on how to balance the preservation of our civil liberties with the protection of our citizens, a strong consensus remains: there is no easy answer to solve this problem,” said Sen. Gardner. “That’s why the establishment of the Digital Security Commission is essential as it unites our country’s brightest experts from the government and private sector who are in the best position to develop and present recommendations to Congress to tackle the issue of digital security.”

“We can all agree that we must strike a balance between protecting our privacy and strengthening our national security.  That is why developing a commission is so important to this debate,” Sen. Schatz said. “By creating a space for law enforcement, intelligence, technology industry, and civil liberties experts to come together, we can find creative solutions that will keep our personal data and our country safe.”

“During the next ten years, the issues of digital security and lawful access to encrypted devices will only become more complex and more important,” said Sen. Collins. “A dialogue among the Administration, Congress, law enforcement, and the tech community is needed to protect the privacy rights of law abiding individuals in an era where terrorists and criminals increasingly use encrypted devices. The Digital Security Commission should have an opportunity to make a valuable contribution to this debate.”

“The ever evolving nature of technology presents certain challenges to law enforcement and national security. The same software that keeps our personal information safe and protects our privacy is being exploited by terrorists. We must strike the right balance between two fundamental American ideals – the right to privacy and the protection of our citizens,” Sen. Bennet said. “The commission can help break the gridlock in this debate by providing Congress with serious and substantial recommendations that come from the consensus of experts on all sides. Once it has this report, Congress must act to ensure our law enforcement has the appropriate tools it needs to protect our communities while securing our personal information from unauthorized access.”

“With advancements in technology come both opportunities and challenges. Such is the case with digital encryption and the balance between privacy and public safety. By establishing a bipartisan digital security commission and uniting experts in technology, privacy and law enforcement, we can better understand the full range of solutions needed to keep Americans safe, while ensuring personal privacy and bringing terrorists to justice,” said Sen. Capito.

“For too long we’ve looked at this debate as a showdown between privacy and security, where only one side can prevail at the expense of the other. But in reality, the only losers in that scenario are the American people – and they deserve better,” Sen. King said. “That’s why, rather than pitting the government against tech companies, this approach forges a third way, bringing together the best minds from all sides to find real, long-term solutions that protect personal privacy and defend national security in the digital age.”

“As a member of the Senate Commerce Committee, I’ve watched the tech sector advance rapidly and recognize that the push and pull between technological advancements and the needs of law enforcement has never been easy, but it must be approached carefully.  While the debate over encrypted technologies has sparked intensity from both sides, every stakeholder shares the goal of protecting Americans,” said Sen. Heller. “The challenge now is striking the right balance that allows law enforcement agencies to be effective while also upholding the values that make our nation great—our privacy, security, and civil liberties. Nevadans and Americans expect Congress to find a path forward, and this Commission is the commonsense first step.”

The proposal has support from a broad range of stakeholders, including privacy advocates, legal scholars, law enforcement and the intelligence communities, the technology industry, and the U.S. Chamber of Commerce:
“A commission created by the Congress, with a membership drawn from every interested quarter in the debates around consumer technology and law enforcement, is a very good idea. It could help work through not only current issues, but future ones – this is a rapidly evolving field which deserves a thorough look and deep understanding before as far-reaching legislation is considered,” said Professor Jonathan Zittrain, Co-Founder, Director and Faculty Chair of the Harvard University Berkman Center for Internet & Society. 

“In a period of rancorous and often counterproductive political debate, this Commission would be a critical step in thoughtfully addressing one of our most pressing challenges: protecting privacy and civil liberties while simultaneously enhancing national security and continuing to foster the technological development that drives so much of our economy,” Michael Leiter, former Director of the National Counterterrorism Center, said. 

“The U.S. Chamber commends Rep. Michael McCaul and Sen. Mark Warner for introducing the Digital Security Commission Act, which would establish a National Commission on Security and Technology Challenges. The Commission is expected to be composed of 16 individuals with expertise in areas such as international commerce and economics, cryptography, law enforcement, technology, privacy and civil liberties, and intelligence,” said Ann Beauchesne, Senior Vice President for National Security and Emergency Preparedness, U.S. Chamber of Commerce. “Most significantly, the Commission would enable a process for Congress to consider complex issues involving Americans’ values and policy objectives regarding economics, privacy, and digital security at home and in the global marketplace. The Chamber looks forward to working with Congress, the administration, and other stakeholders on this bill and to address the concerns of business.”

“The Virginia Association of Chiefs of Police and the Virginia Association of Campus Law Enforcement Administrators strongly support the creation of a McCaul-Warner Commission on Digital Security.  We have been conducting training with our police chiefs on cyberterrorism, cybersecurity and doxing, and the problems we face in the law enforcement community are overwhelming,” said Virginia Association of Chiefs of Police Executive Director Dana Schrad. “Our citizens face the daily threat of tax fraud, credit fraud and identity theft, and our police chiefs are challenged to conduct successful criminal investigations without sufficient training, technology or adequate laws.  Additionally, police agencies face the regular threat of hacking into secure databases of sensitive investigative information.  Our officers face the personal threat of identity theft and privacy invasion perpetrated by retaliatory criminals. Our thanks to Senator Warner for co-authoring this legislation. Virginia’s police chiefs will provide any support requested to help address the tremendous threat to digital security in our nation.”

“We are encouraged by the legislation introduced today by Rep. McCaul and Sen. Warner. The proposal has a worthy goal of promoting thoughtful dialogue between stakeholders in the encryption debate, including experts in cryptography, technology, privacy, and law enforcement. Ultimately, both the privacy and data security of Americans and the security of our nation will be best served by maintaining strong encryption. The Internet Association looks forward to working with policymakers to ensure that the best interests of our nation are served. Congress must avoid hasty legislative ‘solutions’ that could have unintended consequences for the security of the American people,” said Internet Association President and CEO Michael Beckerman.

 

Composition of the Commission

​Two commissioners will be selected from each of the following fields:

  • Cryptography
  • Global commerce and economics
  • Federal law enforcement
  • State and local law enforcement
  • Consumer-facing technology sector
  • Enterprise technology sector
  • Intelligence community
  • Privacy and civil liberties community

The Speaker of the House and Senate Majority Leader will appoint eight commissioners, one from each field, including a Chairman. The House Minority Leader and the Senate Minority Leader will appoint eight commissioners, one from each field, including one Vice Chairman.

In addition, the President may appoint one ex officio individual to serve on the Commission in a nonvoting capacity.

 

Reporting 

In a report to Congress, the Commission will provide, at a minimum, assessments of:

  • The issue of multiple security interests (public safety, privacy, national security, and communications and data protection) both now and in ten years.
  • The economic and commercial value of cryptography and digital security and communications technology.
  • The benefits of cryptography and digital security and communications technology to national security and crime prevention.
  • The role of cryptography and digital security and communications technology in protecting the privacy and civil liberties of Americans.
  • The effects the use of cryptography and other digital security and communications technology has on law enforcement and counterterrorism.
  • The costs of weakening cryptography and digital security and communications technology standards.
  • International laws, standards, and practices for legal access to communications and data protected by cryptography and digital security and communications technology.

The Commission’s report will also include recommendations for policy and practice, and may include recommendations for legislation, regarding:

  • Methods to take advantage of the benefits of digital security and communications technology while mitigating the risk of abuse by bad actors.
  • The tools, training, and resources that could be utilized by law enforcement and national security agencies to adapt to the new digital landscape.
  • Cooperation between the government and private sector to work together to impede terrorists’ use of digital security and communications technology to mobilize, facilitate, and carry out attacks.
  • Any revisions to current law regarding wiretaps and warrants for digital data, while preserving privacy and market competitiveness.
  • Proposed changes to procedures for obtaining warrants to increase efficiency and cost effectiveness for the government, tech companies, and service providers.
  • Steps the U.S. can take to lead the development of international standards for digital evidence for criminal investigations, including reforming the mutual legal assistance treaty (MLAT) process.

The Commission will issue an interim report within 6 months, and a final report within 12 months.

For the full bill text, click here. For a section-by-section summary, click here.

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