House Report Warns Congress Against Anti-Encryption Measures

A bipartisan working group on Capitol Hill is urging fellow lawmakers to abandon plans to mandate backdoors to encrypted information at the behest of law enforcement.

The group — comprised of members from the House Energy and Judiciary Committees — has spent the past six month studying the issue of encryption. Efforts included conducting interviews with digital security experts and law enforcement officials.

Their conclusion: “Any measure that weakens encryption works against the national interest.”

The analysis is likely to ruffle FBI Director James Comey, who, on behalf of the law enforcement community, coined the term “going dark” two years ago, to describe the challenges that police face when they encounter an encrypted device during an investigation. The use of crypto-secured platforms and technology has exploded since the revelations of widespread spying by former NSA contractor Edward Snowden in 2013.

Lawmakers sympathetic to the FBI’s argument have been considering proposals that would require tech companies to provide special tools for law enforcement to access encrypted devices and communications.

But the working group advised against that course of action.

“The variety of stakeholders, technologies, and other factors create different and divergent challenges with respect to encryption and the ‘going dark’ phenomenon, and therefore there is no one-size-fits-all solution to the encryption challenge,” the report stated.

Rep. Suzan DelBene (D-Wash.), a member of the working group, said she was “pleased that our group was able to come together on a bipartisan basis to affirmatively state once and for all: requiring companies to weaken devices with ‘backdoors’ means we open up innocent Americans to the bad actors who would love easier access to our citizens’ personal information.” Other lawmakers on the panel included Reps. Fred Upton (R-Mich.), Zoe Lofgren (D-Calif.) and the House Judiciary Committee’s chair and ranking member, Bob Goodlatte (R-Va.) and John Conyers (D-Mich.).

The lawmakers also raised suspicion over Comey’s characterization that the government is indeed “going dark” as a result of encryption. The group noted that the intelligence community has sophisticated tools and highly skilled personnel that allow it to “work around the challenges” posed by encryption. For them, the working group claimed, it’s more of a “going spotty” problem, instead of going dark.

Working group members did not to completely shut out the anxieties of cops. It added that Congress “should not ignore and must address the legitimate concerns of the law enforcement and intelligence communities.”

In that vein, the report urged Congress to do more to “foster cooperation between the law enforcement community and technology companies.” It also laid out a series of questions for Congress to consider moving forward.

One topic of inquiry included examining whether or not federal warrant procedures “can be made more efficient, consistent with current constitutional standards.”

The working group also advised law enforcement to focus more on metadata analysis, referring to bits of available information that reveal details about a specific communication, like the sender and recipient, and the length and time of the connection.

“Metadata may not completely replace the loss of encrypted content, but metadata analysis could play a role in filling in the gap,” the report suggested.

The issue of “legal hacking” was also addressed in the report. It referred to tactics used by police to prey on known weaknesses in technology. The lawmakers said that in the next Congress, “the Committees might explore a legal framework under which law enforcement agencies can exploit existing flaws in digital products.”

The working group began its study following the high-profile legal dust-up between Apple and the FBI over access to one of the San Bernardino shooter’s encrypted phones.

The FBI initially filed suit against Apple to force the company to weaken its digital security — a move seen by critics as an attempt to cram reforms through the judiciary system. Bureau officials dropped the case after claiming they discovered a way to break into the phone without the help of Apple.