Tuesday, March 1, 2016

Statement of Ranking Member John Conyers, Jr. Full Committee Hearing: “The Encryption Tightrope: Balancing Americans’ Security and Privacy”

Dean of the U.S. House
of Representatives
John Conyers, Jr.
“Thank you, Mr. Chairman.  I want to associate myself with your comments about our jurisdiction. 

“It is not an accident that the House Judiciary Committee is the committee of primary jurisdiction with respect to the legal architecture of government surveillance. 

“In times of heightened tension, many of our colleagues will rush to do something, anything, to get out in front of an issue.  We welcome their voices in the debate—but it is here, in this Committee room, that the House begins to make decisions about the tools and methods available to law enforcement.

“I believe that it is important to say up front, before we get into the details of the Apple case, that strong encryption keeps us safe even as it protects our privacy. 

“Former NSA Director Michael Hayden said last week that ‘America is more secure . . . with unbreakable end-to-end encryption.’

“In this room, just last Thursday, former Secretary of Homeland Security Michael Chertoff testified that, in his experience, strong encryption helps law enforcement more than it hinders any agency in any given case.

“The National Security Council has concluded that ‘the benefits to privacy, civil liberties, and cybersecurity gained from encryption outweigh the broader risks . . . created by weakening encryption.’
            “And Director Comey has put it very plainly:

‘Universal strong encryption will protect all of us—our innovation, our private thoughts, and so many other things of value—from thieves of all kinds.  We will all have lock-boxes in our lives that only we can open and in which we can store all that is valuable to us.  There are lots of good things about this.’

“Now, for years, despite what we know about the benefits of encryption, the Department of Justice and the FBI have urged this Committee to give them the authority to mandate that companies create back doors into their secure products. 

“I have been reluctant to support this idea for a number of reasons.  The technical experts have warned us that it is impossible to intentionally introduce flaws into secure products—often called ‘back doors’—that only law enforcement can exploit, to the exclusion of terrorists and cyber criminals. 

“The tech companies have warned us that it would cost millions of dollars to implement and would place them at a competitive disadvantage around the world. 

“The national security experts have warned us that terrorists and other criminals will simply resort to other tools, entirely outside the reach of our law enforcement and intelligence agencies.

“And I accept that reasonable people can disagree with me on each of these points.

“What concerns me, Mr. Chairman, is that in the middle of an ongoing congressional debate on this subject, the FBI would ask a federal magistrate to give them the special access to secure products that this Committee, this Congress, and the Administration have so far refused to provide.

“Why has the government taken this step and forced this issue?  I suspect that part of the answer lies in an email obtained by the Washington Post and reported to the public last September. 

“In it, a senior lawyer in the intelligence community writes that although ‘the legislative environment towards encryption is very hostile today . . . it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.’

“He concluded that there is value in ‘keeping our options open for such a situation.’

“I am deeply concerned by this cynical mindset.  And I would be deeply disappointed if it turns out that the government is found to be exploiting a national tragedy to pursue a change in the law.

“I also have doubts about the wisdom of applying the All Writs Act—which was enacted in 1789, codified in 1911, and last applied to a communications provider by the Supreme Court in 1977—to a profound question about privacy and modern computing in 2016.

“I fear that pursuing this serious and complex issue through the awkward use of an inapt statute was not, and is not, the best course of action.

“I am not alone in this view.  Yesterday, in the Eastern District of New York, a federal judge denied a motion to order Apple to unlock an iPhone under circumstances similar to those in San Bernardino.

“The court found that the All Writs Act, as construed by the government, would confer on the courts an ‘overbroad authority to override individual autonomy.’

“Moreover, ‘nothing in the government’s argument suggests any principled limit on how far a court may go in requiring a person or company to violate the most deeply-rooted values.’

“We could say the same about the FBI’s request in California.  The government’s assertion of power is without limiting principle and likely to have sweeping consequences—whether or not we pretend that the request is limited to just this device, or just this one case.

“This Committee, and not the courts, is the appropriate place to consider those consequences—even if the dialogue does not yield the result desired by some in the law enforcement community.

“I am grateful that we are having this conversation today, back in the forum in which it belongs: the House Judiciary Committee.  I thank the Chairman, and I yield back.”
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