When there isn’t a right answer to encryption

Those of us in the think tank business pride ourselves on coming up with solutions to the world’s problems. Rarely will you find a think-tanker who responds to a problem by saying “I don’t know.” We are paid to come up with ideas, after all.

When it comes to the issue of encryption — and whether we should mandate technology companies give law enforcement, in order to track terrorist activity, “backdoor” access to software specifically created to provide total privacy to users  — I truly don’t know the right or even best answer. There are equities on all sides of the issue.

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Here are a few issues to ponder:

• Even with court approval, law enforcement can’t access encrypted data because the technology companies themselves can’t access the data. Law enforcement, therefore, can’t keep us safe if we prevent them from tracking terrorists who use encrypted technologies.

• Technology companies have created software to meet the demands of users who want protection from hackers and government’s prying eyes — forcing them to install backdoors will harm consumers (making the software and, therefore, their personal information more hackable), make US technology companies less competitive with foreign companies free of the mandate, and force some companies to move operations overseas.

• Is it even constitutional for Congress to pass a law forcing a private sector entity to alter its product where there is no harm to consumers from using the product, and, in fact, the mandate could harm consumers, as noted above?

That is why I propose Congress and the president create a national commission to dig into the issue in six months and issue recommendations on how best to balance law enforcement’s needs while protecting liberty.

I’m not trying to punt the issue as so many politicians have done in the past with “blue ribbon” commissions. My hope is that a commission like the 9/11 Commission can fully analyze the problem with all stakeholders participating so we can arrive at the least-worst solution.

For details, read the report here.

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