Encryption is a good thing. Why do I say that? It may sound like something only “techies” would care about, but, in fact, it is a tool most of us use every day, often without even thinking about it. Encryption is used on devices like phones, computers, and tablets to secure data. From identity theft to our economic and military security, encryption keeps our most valuable information safe and also helps protect the United States from the threats of terrorists and hackers.
As technology companies have made great strides to enhance the security of Americans’ personal information, law enforcement agencies face new challenges when attempting to access encrypted information during criminal investigations. Balance between privacy and security is nothing new. Since the invention of the telegraph and telephone, Congress has grappled with whether, and to what extent, law enforcement should have access to technologies. But lawmakers could not have foreseen the types of technology that, for many Americans, are commonplace today. The question is not whether encryption should exist – it must exist and technology companies must deploy stronger, more effective encryption just to keep us and our information safe from ever-increasingly effective attacks by criminal enterprises, foreign governments, and just plain hackers. Apple has designed its new encryption technology to be so secure that even Apple does not have a key to unlock it – only a user’s secret password is able to unlock the phone.
Following the December 2015 terrorist attack in San Bernardino, California, investigators recovered a cell phone used by one of the terrorists responsible for the attack. After the FBI was unable to unlock the phone and recover its contents, a federal judge ordered Apple to provide assistance in retrieving the data on the device. Apple has appealed the court order, arguing that its encryption technology is necessary to protect all of its customers’ communications’ security and privacy. Practically every other major technology company has joined in support of Apple’s position that their devices, and software, should not be weakened and protections to consumers reduced.
Just a few days ago, the House Judiciary Committee, which I chair, held a hearing on the questions encryption raises and to get input from the law enforcement and technology communities, including FBI Director Comey and Apple’s General Counsel. Over the years, I have been actively involved in the encryption debate, and the Judiciary Committee is uniquely poised to examine this issue as it has primary jurisdiction on the U.S. Constitution, the Bill of Rights, and federal criminal laws and procedures and has a long history of tackling the balance between the advancement of technology and the needs of our law enforcement and intelligence agencies.
As we move forward, we must find solutions that allow law enforcement to effectively enforce the law without harming the privacy protections and safety of U.S. citizens who, knowingly or not, rely on increasingly stronger encryption. This is an issue that must be resolved by Congress and not left to the courts to interpret laws that never contemplated the issues facing the nation today.
