Encryption Working Group
Year-End Report
December 20, 2016

Signed by:
Chairman Fred Upton (R-MI)
Ranking Member Frank Pallone, Jr. (D-NJ)
Rep. Bill Johnson (R-OH)
Rep. Yvette D. Clarke (D- NY)

Chairman Bob Goodlatte (R-VA)
Ranking Member John Conyers, Jr. (D-MI)
Rep. Darrell Issa (R-CA)
Rep. Zoe Lofgren (D-CA)
Rep. James Sensenbrenner (R-WI)
Rep. Susan DelBene (D-WA)

 Introduction
On February 16, 2016, a federal magistrate judge in the U.S. District Court for the
Central District of California issued an order requiring Apple, Inc. to assist the Federal Bureau of
Investigation (FBI) in obtaining encrypted data off of an iPhone related to a 2015 shooting in San
Bernardino, California. Apple resisted the order. This particular case was resolved when the
FBI pursued a different method to access the data stored on the device. But the case, and the
heated rhetoric exchanged by parties on all sides, reignited a decades-old debate about
government access to encrypted data.
The law enforcement community often refers to their challenge in this context as “going
dark.” In essence, “going dark” refers to advancements in technology that leave law
enforcement and the national security community unable to obtain certain forms of evidence. In
recent years, it has become synonymous with the growing use of strong default encryption
available to consumers that makes it increasingly difficult for law enforcement agencies to
access both real-time communications and stored information. The FBI has been a leading critic
of this trend, arguing that law enforcement may no longer be able “to access the evidence we
need to prosecute crime and prevent terrorism, even with lawful authority.”1 As a result, the law
enforcement community has historically advocated for legislation to “ensure that we can
continue to obtain electronic information and evidence pursuant to the legal authority that
Congress has provided to keep America safe.”2
Technology companies, civil society advocates, a number of federal agencies, and some
members of the academic community argue that encryption protects hundreds of millions of
people against theft, fraud, and other criminal acts. Cryptography experts and information
security professionals believe that it is exceedingly difficult and impractical, if not impossible, to
devise and implement a system that gives law enforcement exceptional access to encrypted data
without also compromising security against hackers, industrial spies, and other malicious actors.3
Further, requiring exceptional access to encrypted data would, by definition, prohibit some
encryption design best practices, such as “forward secrecy,” from being implemented.4
1

Remarks of James B. Comey, Director, FBI, at the Brookings Institution, Washington, D.C. (Oct. 16, 2014).

2

Id.

3

See, e.g., Harold Abelson, et al., Keys Under Doormats: Mandating insecurity by requiring government access to
all data and communications, Computer Science and Artificial Intelligence Laboratory Technical Report, MITCSAIL-TR-2015-026, Massachusetts Institute of Technology, July 6, 2015.
4

Id. A system that employs “forward secrecy” develops new keys for each transaction, meaning an attacker cannot
access data from previous or subsequent transactions. An attacker who breaches a system that provides forward
secrecy can only view data from the time of the breach until the breach is discovered and rectified. Prior data

2

 These two outlooks are not mutually exclusive. The widespread adoption of encryption
poses a real challenge to the law enforcement community and strong encryption is essential to
both individual privacy and national security. A narrative that sets government agencies against
private industry, or security interests against individual privacy, does not accurately reflect the
complexity of the issue.
Recognizing the need to examine this question in a deliberate manner, the Chairmen and
Ranking Members of the House Committee on Energy and Commerce and Committee on the
Judiciary established a bipartisan, joint-committee working group to conduct a thorough and
objective review of the encryption challenge. The Encryption Working Group (EWG) includes
two Republicans and two Democrats from each Committee, as well as the Chairmen and
Ranking Members of the respective Committees serving as ex officio members. The following
subset of EWG members submits this report to enhance the public debate surrounding the use of
encryption:
Committee on Energy and Commerce
Chairman Fred Upton (R-MI)
Ranking Member Frank Pallone, Jr. (D-NJ)
Rep. Bill Johnson (R-OH)
Rep. Yvette D. Clarke (D-NY)

Committee on the Judiciary
Chairman Bob Goodlatte (R-VA)
Ranking Member John Conyers, Jr. (D-MI)
Rep. Darrell Issa (R-CA)
Rep. Zoe Lofgren (D-CA)
Rep. Jim Sensenbrenner (R-WI)
Rep. Suzan DelBene (D-WA)

Over the past six months, the staff and members of the EWG, representing the respective
Committees and member offices, held meetings, briefings, and roundtables with dozens of
stakeholders from private industry, the intelligence community, federal law enforcement, state
and local law enforcement, civil society, and the academic community.
Observations
Based on their work, the above listed members of the EWG offer four observations that
may provide the foundation for further examination of this issue by the Energy and Commerce
and Judiciary Committees in the next Congress.

remains encrypted. Additionally, under a system employing forward secrecy, session keys are destroyed after each
transaction.

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 Observation #1: Any measure that weakens encryption works against the national interest.
To be clear, the widespread adoption of encryption has had a profound impact on the law
enforcement community. Even with a lawful court order, even in dire circumstances, the
authorities may not have access to encrypted data. The EWG met with representatives of
federal, state, and local law enforcement, as well as with different components of the intelligence
community. Each of these agencies described the challenges of obtaining encrypted data that
was once commonly available to analysts and investigators.
However, stakeholders from all perspectives acknowledged the importance of encryption
to our personal, economic, and national security. Representatives of the national security
community told the EWG that strong encryption is vital to the national defense and to securing
vital assets, such as critical infrastructure. Civil society organizations highlighted the importance
of encryption for individual privacy, freedom of speech, human rights, and protection against
government intrusion at home and abroad. Private sector stakeholders—in particular, their
information security officers—and members of the academic community approached the
question from an engineering perspective—against a wide array of threats, foreign and domestic,
encryption is one of the strongest cybersecurity tools available.
Congress should not weaken this vital technology because doing so works against the
national interest. However, it should not ignore and must address the legitimate concerns of the
law enforcement and intelligence communities.
To this end, Congress should explore proposals that have so far received little attention in
the committees, but may offer valuable assistance to law enforcement agencies in a digital
landscape where default strong encryption is ubiquitous. These may include—but are not limited
to—opportunities for collaboration between the law enforcement community and the technology
sector and information sharing between different elements of the law enforcement community.
Failure to examine these ideas risks further entrenchment of the status quo and limits the
potential for valuable cooperation between law enforcement, the intelligence community, and
private industry.

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 Observation #2: Encryption technology is a global technology that is widely and increasingly
available around the world.
Data flows with little regard for national borders. Many of the private companies that
met with the working group have a multinational presence and are subject to the laws of many
different jurisdictions. Several of these companies noted a trend towards data localization
requirements in foreign countries, driven at least in part by the difficulty in obtaining data for use
in routine criminal investigations. Conversely, current legal authorities may be inadequate for
federal agencies attempting to access data overseas.
Encryption technology is free, widely available, and often open source.5 Law
enforcement stakeholders acknowledged to the EWG that a Congressional mandate with respect
to encryption—requiring companies to maintain exceptional access to data for law enforcement
agencies, for example—would apply only to companies within the United States. The
consequences for such a policy may be profound, but they are not likely to prevent bad actors
from using encryption.
Representatives of various private companies told the EWG that a mandate
compromising encryption in the U.S. technology sector would simply shift consumers to
products offered by foreign companies. These forces might incentivize larger companies to
leave the United States, and render small business and other innovators in the field obsolete. If a
U.S.-based company moved operations to a country with a more favorable legal regime, the law
enforcement and intelligence communities might lose access to everything in that company’s
holdings—encrypted or not.
Congressional action in this space should weigh any short-term benefits against the longterm impacts to the national interest. Congress cannot stop bad actors—at home or overseas—
from adopting encryption. Therefore, the Committees should explore other strategies to address
the needs of the law enforcement community.
Observation #3: 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.

5

See Bruce Schneier, Kathleen Seidel & Saranya Vijayakumar, A Worldwide Survey of Encryption Products, Feb.
11, 2016.

5

 The challenge of improving law enforcement access to encryption depends on a multitude
of factors. Federal law enforcement agencies like the FBI and the United States Secret Service
face obvious challenges from the growing use of strong encryption. Although federal law
enforcement agencies told the EWG that they encourage the use of encryption for the protection
of sensitive information—including data retained by the federal government—they cite the
increased use of encryption by suspected criminals and victims of crime as a severe challenge to
their public safety mission.
State and local law enforcement agencies face similar challenges, but across a wide
spectrum due to massive variation in access to resources, personnel, and technical capability.
Representatives from the local law enforcement community showed the EWG how encryption
has hampered the investigations of even the most common crimes. Although some metropolitan
police departments showed us capabilities that approach those of federal law enforcement, there
is a significant overall gap between the knowledge and resources available to federal law
enforcement and state and local agencies. Further, many in the law enforcement community,
especially smaller agencies, expressed frustration over the challenge of navigating the processes
put in place by private companies to respond to law enforcement requests for information.
Like the federal law enforcement community, the intelligence community is generally
well-resourced and attracts highly skilled personnel. These advantages, and a difference in
mission, often leave intelligence agencies better situated to work around the challenges posed by
the widespread adoption of encryption technologies. At present, therefore, the challenge appears
to be more akin to “going spotty,” than “going dark” for the intelligence community. As default
strong encryption becomes more prevalent in societies around the world, however, so too will the
challenge for the intelligence community.
Other agencies across the federal government also have a stake in the debate. Some, like
the Department of Health and Human Services, for example, generally encourage the use of
encryption to secure sensitive information.6 Others, like the Department of State, have actively
encouraged the development of strong encryption in support of specific overseas and diplomatic
missions.7
The wide array of encryption technologies also weighs against a one-size-fits-all
approach to the needs of the law enforcement community. For example, although much of the
6

45 C.F.R. §164.312.

7

Elias Groll, How Hillary Clinton helped Build WhatsApp’s State-of-the-Art Encryption, FOREIGN POLICY, April 6,
2016.

6

 debate has focused on access to data-at-rest—like the information stored on a mobile phone—the
FBI relies on different techniques and legal authorities to intercept data-in-motion. An agency’s
ability to access encrypted information in either form will depend further on the type of
encryption deployed—e.g., end-to-end encryption and a managed key architecture offer different
sets of challenges to investigators. Any interaction between the private sector and law
enforcement on this front will be further complicated by the nature of the product or service
involved, the nature of the client—e.g., corporation, government entity, or private consumer—
the business model of the company, and the security architecture employed in each specific case.
These diverse interests highlight the complexity of the encryption debate. Therefore,
there is no “one-size-fits-all” answer or a “solution” to this challenge. This does not mean that
nothing can be done. There is ample opportunity to achieve progress by focusing on a number of
discreet issues that hinder law enforcement’s ability to obtain information in light of encryption.
No individual issue will address law enforcement’s concerns but collectively there is opportunity
to mitigate the challenge.
Observation #4: Congress should foster cooperation between the law enforcement community
and technology companies.
Public perception and recent tensions notwithstanding, there is already substantial
cooperation between the private sector and law enforcement. Private company stakeholders
demonstrated an ability to assist federal, state, and local agencies with access to information to
the extent possible and with service of a lawful order, and expressed a willingness to explore
ways to improve and enhance that collaboration.
Stakeholders from all sides were nearly unanimous in describing a significant gap in the
technical knowledge and capabilities of the law enforcement community, particularly at the state
and local levels. This results in a range of negative consequences that not only hinder law
enforcement’s ability to pursue investigations but also contribute to its tension with the
technology community. For example, from the perspective of law enforcement, routine requests
for data are often challenged by the companies, unnecessarily delayed, or simply go unanswered.
From the perspective of the companies, these requests often lack appropriate legal process, are
technically deficient, or are directed to the wrong company altogether.
It also remains unclear whether the law enforcement community is positioned to fully
leverage the unencrypted information still held by many companies. A number of stakeholders
acknowledged the potential benefit of improving law enforcement’s understanding of what data
or information is available, who controls it, and how it could be useful to investigators. In
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 particular, companies are often able to provide volumes of unencrypted metadata associated with
their products or services. In some cases, this source of information could be useful to
investigators. In others, one representative of a law enforcement agency told the EWG, access to
a stream of metadata might be more like “looking for a particular grain of sand on the beach.”
Congress can play an important role in encouraging or facilitating opportunities to
strengthen and expand collaboration between the technology sector and law enforcement.
Fostering such cooperation would not only help strengthen law enforcement’s capabilities, it
would also assist in enhancing communication and lessening distrust between the two sides.
These and similar challenges can be mitigated by exploring opportunities to reduce the
knowledge and capabilities gap between law enforcement and the technology community. This
effort will not only improve law enforcement’s effectiveness but also has the potential to reduce
friction with the technology community while also exploring and addressing civil liberties
concerns.

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 Next Steps
Based on these observations, the members of the EWG listed above have identified the
following areas for future discussion by the Committee on Energy and Commerce and the
Committee on the Judiciary. These suggestions are not exhaustive, and are intended provide
starting points for the Committees’ work in this space in the next Congress, without precluding
or undermining consideration of related issues as they emerge or evolve.8
Law Enforcement Requests for Information
Congress should explore means of providing assistance to law enforcement agencies with
respect to navigating the process of accessing information from private companies. A few
relatively uncontroversial ideas could radically improve the ability of the law enforcement
community to operate in a digital environment—and also reduce tensions between law
enforcement and private industry. These ideas include, but are not limited to:
§

Exploring tools that might help companies clarify what information is already available
to law enforcement officers, and under what circumstances.

§

Examining federal warrant procedures to determine whether they can be made more
efficient, consistent with current constitutional standards.

§

Examining federal warrant procedures to ensure that they are clear and consistent with
respect to law enforcement access to digital information.

§

Examining how law enforcement can better utilize existing investigative tools.

§

Authorizing and modernizing the National Domestic Communications Assistance Center
(NDCAC). The NDCAC, organized under the Department of Justice, is a hub for

8

There are many interesting aspects of this evolving landscape—such as prospect of quantum computing—that have
the potential to influence future policy decisions. Likewise, other ongoing projects, including a study recently
launched by the National Academies to examine options and trade-offs for obtaining access to encrypted data. As
noted in the project summary, the “study will not seek to answer the question of whether access mechanisms should
be required but rather will provide an authoritative analysis of options and tradeoffs.” (See, e.g.
http://www8.nationalacademies.org/cp/projectview.aspx?key=49806) This study, and similar efforts, will further
inform the Committees examination of this issue.

9

 technical knowledge management designed to facilitate information sharing among law
enforcement agencies and the communications industry. NDCAC does not have an
investigative role and is not responsible for execution of electronic surveillance court
orders. Congress has never formally authorized the NDCAC, but its current structure
seems conducive to providing the law enforcement community a forum through which to
share information and benefit from existing technical expertise.
Metadata Analysis
As more and more of our daily lives are connected to the internet, our digital “footprints”
grow through the production of metadata. Some argue that effective analysis of this metadata
would help investigators offset the loss of encrypted content. Some representatives of the law
enforcement community were hesitant to adopt this view. They acknowledged that metadata can
be helpful in certain circumstances but also argued that it is frequently challenging for law
enforcement agencies to make sense of large amounts of metadata. Law enforcement
stakeholders also noted that metadata may be a poor replacement for content in court. For
example, a record of the time and place from which a text message was sent might be less
persuasive to a jury than the text message itself.
Metadata may not completely replace the loss of encrypted content, but metadata analysis
could play a role in filling in the gap. The technology community leverages this information
every day to improve services and target advertisements. There appears to be an opportunity for
law enforcement to better leverage this information in criminal investigations. Acknowledging
that metadata cannot replace encrypted content in all cases, the value of this data should be
explored. Questions in this area might include:
§

When is law enforcement able to access certain types of metadata, what kind of metadata
can they access, and from whom do they obtain this data?

§

What privacy interests are implicated when law enforcement analyzes large amounts of
metadata over time?

§

What kind of algorithmic or other technical tools would law enforcement agencies need
in order to fully leverage this data?

§

What judicial and evidentiary processes around metadata currently exist, and do they
limit its effectiveness or applicability in court?

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 §

What knowledge, resource, or technical impediments exist to limit the ability of law
enforcement agencies, especially at the state and local level, to more effectively leverage
this information?

Legal Hacking
Legal hacking, also known as lawful hacking, is an investigative tactic whereby a law
enforcement agency exploits a vulnerability in the digital security of a device or service in order
to obtain evidence of a crime. Many stakeholders argue that, rather than building new
vulnerabilities into secure products to facilitate law enforcement access, law enforcement
agencies should be given the resources to exploit the flaws in secure products that already exist.
Several law enforcement agencies noted that legal hacking is a time- and resource-intensive
approach, and limited to the subset of cases where the agency actually knows of a flaw to
exploit. These concerns are amplified at the state and local level, where resources and technical
capabilities may be even scarcer. Other stakeholders expressed concern that a legal hacking
regime creates the wrong incentives for government agencies that should be working with
private companies to patch vulnerabilities and improve cybersecurity.
In the next Congress, the Committees might explore a legal framework under which law
enforcement agencies can exploit existing flaws in digital products. Questions in this area
include, but are not limited to:
§

What sort of legal process, if any, is required in order to authorize a law enforcement
agency to “hack?”

§

Should a law enforcement agency disclose vulnerabilities leveraged in legal hacking to
the affected companies, and if so, when?

§

Is the current Administration’s Vulnerabilities Equities Process—the ad hoc process
through which the federal government currently determines whether or not to disclose
vulnerabilities already in its possession—adequate? Should Congress provide guidance
or authorize some formal structure for the process?

§

How do the challenges faced by the law enforcement community differ from those of the
intelligence community, and how are the different equities of different agencies balanced
in the Vulnerabilities Equities Process?

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 §

Does legal hacking “scale,” particularly when evaluating whether to provide additional
resources to state and local law enforcement? Given the cost and resource-intensive
nature of legal hacking, can the law enforcement community make regular use of legal
hacking as an investigative technique? If so, does regular use of legal hacking raise
security concerns?

Compelled Disclosure by Individuals
Although much of the debate has focused on requiring third party companies to decrypt
information for the government, an alternative approach might involve compelling decryption by
the individual consumers of these products. On a case-by-case basis, with proper court process,
requiring an individual to provide a passcode or thumbprint to unlock a device could assist law
enforcement in obtaining critical evidence without undermining the security or privacy of the
broader population.
Given evolving technologies and the trend towards using biometrics—like a fingerprint
or facial recognition software—to decrypt data, Congress might consider the following
questions:
§

Can the government compel an individual to unlock his phone without violating the
protection against self-incrimination guaranteed by the Fifth Amendment to the U.S.
Constitution?

§

With respect to the Fifth Amendment, is there a substantive or legal difference between
unlocking a device with a passcode and unlocking the device with a biometric identifier?
Is entering a passcode a “testimonial act,” as some courts have held? Is a fingerprint
different in any way?

§

What is the proper legal standard for compelling an individual to unlock a device?

§

Are there other circumstances that would enable the government to compel production of
a passcode without undermining the Fifth Amendment?

Privacy and Data Security
The increasing use of encryption—especially in consumer products—can be attributed, at
least in part, to heightened consumer awareness and interest in online privacy and data security.
Because consumers also demand the convenience and features enabled by information-sharing
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 and third-party access to personal information, many applications now have access to expansive
consumer information. Congress should further explore the role of encryption in fostering
greater data security and privacy. Relevant questions might include the following:
§

Should the federal government take additional steps to address greater security around
private data?

§

How can companies use encryption to better protect consumers’ privacy and the security
of consumers’ information?

§

How can the government use encryption to better protect privacy and the security of
information held by various agencies?

§

What vulnerabilities remain after communications have been encrypted and how might
those vulnerabilities be addressed?

§

How would consumers’ privacy and data security suffer if encryption were weakened?

§

What additional tools, if any, could private companies use to secure consumers’
information?
*

*

*

The debate about government access to encrypted data is not new—but circumstances
have changed, and so too must our approach.
Encryption is inexorably tied to our national interests. It is a safeguard for our personal
secrets and economic prosperity. It helps to prevent crime and protect national security. The
widespread use of encryption technologies also complicates the missions of the law enforcement
and intelligence communities. As described in this report, those complications cannot be
ignored. This is the reality of modern society. We must strive to find common ground in our
collective responsibility: to prevent crime, protect national security, and provide the best possible
conditions for peace and prosperity.
That is why this can no longer be an isolated or binary debate. There is no “us versus
them,” or “pro-encryption versus law enforcement.” This conversation implicates everyone and
everything that depends on connected technologies—including our law enforcement and
intelligence communities. This is a complex challenge that will take time, patience, and
cooperation to resolve. The potential consequences of inaction—or overreaction—are too
important to allow historical or ideological perspectives to stand in the way of progress.
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