Mark R. Warner

U.S. Sen. Mark R. Warner (D-VA), a member of the Senate Intelligence Committee, and House Homeland Security Committee Chairman Michael McCaul (R-TX) are leading a bipartisan group of colleagues in the Senate and House 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), Dean Heller (R-NV), Bill Nelson (D-FL), Steve Daines (R-MT), Michael Bennet (D-CO), Jeff Flake (R-AZ), Martin Heinrich (D-NM), Rob Portman (R-OH), Mike Rounds (R-SD), Thomas Carper (D-DE) and Gary Peters (D-MI). In addition to Chairman McCaul, House co-sponsors are Reps. Jim Langevin (R-RI), Patrick Meehan (R-PA), 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),  Dave Reichert (R-WA), Earl "Buddy" Carter (R-GA), Peter King (R-NY), Candice Miller (R-MI), John Katko (R-NY), Lamar Smith (R-TX), Barry Loudermilk (R-GA), Martha McSally (R-AZ), Mike Rogers (R-AL), Jeff Duncan (R-SC), Susan Brooks (R-IN), Mark Walker (R-NC), John Ratcliffe (R-TX), Betty and McCollum (D-MN). 

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.

Sen. Warner and Chairman McCaul discussing their bipartisan commission at the Bipartisan Policy Center on February 24, 2016.

“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.”

Statements on the Commission: 

• The Software Alliance – BSA
• U.S. Chamber of Commerce
• Frances Townsend
• International Business Machines Corporation – IBM
• Kenneth L. Wainstein
• Michael Leiter
• Michael Chertoff
• Newt Gingrich
• Reform Government Surveillance Coalition – RGS
• TechFreedom
• FireEye
• Virginia Association Chiefs of Police & Virginia Association of Campus Law Enforcement Administrators
• The Heritage Foundation
• Harris County Sheriff Ron Hickman
• Hennepin County Sheriff Rich Stanek (MN)
• New York City Police Department Former Commissioner Ray Kelly
• Center for Democracy and Technology – CDT
• Consumer Technology Association – CTA 
• Information Technology Industry Council – ITI
• The Internet Association – IA
• Michael Hayden
• Matthew Olsen
• Michael Flynn
• Niskanen Center
• Software & Information Industry Association – SIIA
• TechNet
• AEI’s Matt A. Mayer
• Freedomworks
• National Sheriffs Association 
• City of San Bernadino Chief of Police Jarrod Burguan
• Boston Police Department Former Commissioner Edward Davis
• Mike McConnell, former Director of National Intelligence & former Director of NSA
• Mark MacCarthy, Software & Information Industry Associatoin Senior Vice President of Public Policy
• Linda Moore, President and CEO of TechNet
• Jim Lewis. Senior Fellow and Program Director at the Center for Strategic and International Studies
• Chris Inglis, former Deputy Director of the National Security Agency
• Jonathan Zittrain, Co-Founder, Director and Faculty Chair, Harvard University Berkman Center for Internet & Society

The Commission In the Media:

• Washington Post Editorial Board
  
• Wall Street Journal Editorial Board
• LA Times Editorial Board 
• The Hill – Newt Gingrich and Jane Harman: A national debate on encryption — now

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.