Senate Shakeup Could Bring Positive Change for Encryption Advocates

On Wednesday morning, the Democratic Senate leadership announced it would be playing a game of musical chairs: Sen. Mark Warner, D-Va., will be the next ranking member of the Intelligence Committee while Sen. Dianne Feinstein, D-Calif., will be exchanging her leading role on the intelligence oversight panel for one on the Judiciary Committee.

While those roles occasionally overlap — both committees are charged with considering and protecting civil liberties and oversight of federal agencies — the incoming leaders will have a new set of responsibilities and issues to take over.

Feinstein celebrated being the first woman to helm the Democratic leadership position on the judiciary panel, promising to put pressure on Congress to take up Supreme Court nominations. Warner in turn committed himself to policing the intelligence community, and reached across the aisle to his Republican colleagues. “With a new administration starting to assemble its national security team, I look forward to fulfilling the Committee’s primary responsibility to provide vigorous and bipartisan oversight,” he said in a written statement.

Warner is expected to challenge Intelligence Committee Chairman Richard Burr, R-N.C., in ways Feinstein might not have — particularly on protecting encryption technology.

The FBI came out in force over the past year pushing for law enforcement to have permanent access to encrypted communications — exchanges intended to be deciphered only by the sender and the receiver. However, technologists pointed out how any sort of “backdoor” into the security framework provided by encryption — regardless of whether law enforcement has a warrant — would provide a gaping hole for criminals and nation states to access that same information.

Sens. Burr and Feinstein worked together during the last Congress to put forward legislation on encryption that horrified technologists and privacy advocates alike — a bill that would force companies to decrypt user data when investigators came knocking. Meanwhile Warner championed a new commission, made up of industry, law enforcement, and advocates to study the issue.

Warner has a history of keeping a tight hold on the intelligence community’s purse strings; he has authored several amendments to keep the budget in check in past years. After deliberation, he ultimately voted to release the Senate’s investigation into the CIA’s enhanced interrogation practices, commonly known as the “Torture Report” — championed by his now predecessor Feinstein.

During a time when the committee was grappling with its role in domestic surveillance, Warner also sponsored amendments in November 2013 to guarantee the Foreign Intelligence Surveillance Court would have access to outside experts. He hasn’t, however, been a serious critic of those programs the way Sen. Ron Wyden, D-Ore., and some other Democrats have been.

Meanwhile, several prominent national security and constitutional experts expressed concern over Sen. Patrick Leahy, D-Vt. departing his leadership role on the judiciary panel, given his record on policing the Department of Justice and FBI, and promoting civil liberties. Feinstein, while a strong advocate for issues like gun control and torture, has a reputation of defending the surveillance state and has called former NSA contractor Edward Snowden a traitor.

“Leahy’s judiciary staff are the some of the best in the business and their country has never needed them more,” Katherine Hawkins, senior policy counsel at the Constitution Project, wrote in a tweet. “Sen. Leahy, protector of constitutional rights, out as ranking member of the Judiciary committee. Sen. Feinstein, destroyer of them, is in,” Trevor Timm, executive director of the Freedom of the Press Foundation chimed in.

Top photo: Sens. Dianne Feinstein, D-Calif., Mark Warner, D-Va., Richard Burr, R-N.C., and Dan Coats, R-Ind., confer before a hearing.