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WACO, Texas –
On Thursday, June 23, Baylor Law School, in conjunction with Baylor University's Washington, D.C. initiative, hosted a panel discussion on how encryption impacts national security concerns.
"Encryption is a topic of importance. It's the duty of our legislators and our duty as lawyers involved in public policy issues to understand why encryption impacts national security," said Dean Brad Toben. "This event is an extension of our mission at Baylor Law School to educate our students about current challenges facing us in the public square."
The distinguished panel included: Hon. Suzan DelBene, Congresswoman for the 1st Congressional District of Washington; Mr. Raj De, Partner at Mayer Brown and former General Counsel at the National Security Agency; and Mr. Paul Rosenzweig, founder of Red Branch Consulting, PLLC and former Deputy Assistant Secretary for Policy for the Department of Homeland Security. The panel was moderated by Mr. Daniel Silverberg, National Security Advisor for the Office of Congressman Steny Hoyer.
The concept of encryption is not new. The word "encryption" comes from the Greek word for "hidden," and the concept is at least as old as the days of that early civilization. Spartan generals were known to wind scrolls of parchment on spools and write their military instructions across them; these messages could only be read by winding the scroll on a spool of the exact same circumference.
In modern times, electronic data is secured from third parties by means of digital encryption. Administered in many forms and often going unnoticed by users, modern day encryption touches our lives on a daily basis. Logging into Facebook? Sending an e-mail or text message? Saving work produced for a client on your computer? Encryption is used to safeguard data and prevent it from being intercepted or read by someone other than its intended recipient.
As early as the 1990's, many of our personal electronic devices had the capability to be encrypted, but few people actually took affirmative steps to do so. Today, many Americans are concerned about the ability of the government to monitor their private data. Thus, companies that manufacture personal electronic devices have now "change[d] the default rule – technology [now] comes with strong encryption protection," said Rosenzweig. The reason for this change is due to "American businesses see[ing] it as a competitive disadvantage to be cooperative with the government," he continued. "It's not a technology debate, it's a sociology debate."
In Congress, there is an on-going intense debate over encryption. The use of encryption safeguards to protect private citizens' data from government surveillance, which raises issues regarding the right to privacy in our communications, is one of the critical points of argument in the debate. While Congresswoman DelBene advocates to allow law enforcement to legally obtain information in criminal investigations, she is against mandating that American companies create a "backdoor" to bypass security technology. To do so, would be "creating a backdoor that others [too] can exploit," she said.
Each panelist agreed that steps need to be taken by Congress to address this issue. "We are behind on updating the legal framework to accommodate where we are today technologically," said DelBene. "We need to update this framework for the digital world. Updating the legal system will help the American people know what is protected." As an example, she raised issues concerning search warrant laws. Unlike search warrants for physical evidence, in some cases law enforcement quizzically does not need a search warrant if the data on the electronic device is old. DelBene suggested that new legislation be considered that would bring "our laws up to date with the way the world works, and a warrant standard is a good start," she said.
As cyber warfare has become a real and present danger, encryption has also become a pressing topic related to national security. Currently an arms race is underway to assure that all the government's sensitive data is properly secured from foreign and domestic threats. Even so, many agencies are "woefully behind in implementing technology," said DelBene.
As a final topic, the panel touched upon the danger of inaction by Congress. Inaction could have significant consequences, potentially allowing for the use of quantum computing by foreign governments and large companies to break through any security measures. "Do we want a world that's in an arms race to quantum computing?" said De. Rather than react to a specific event that could lead to significant consequences, the panelists called upon Congress to be proactive. As De pointed out, "[w]e have a chance to lead the world in our handling of encryption."
This event was part of a conversation series called, "Viewpoints." This edition of Viewpoints was sponsored by Baylor Law School, the American Bar Association Standing Committee on Law & National Security, and the American Bar Association Governmental Affairs Office.
Partner, Mayer Brown | Former General Counsel, National Security Agency
Raj De is a partner in Mayer Brown's Washington DC office and leads the firm's global Cybersecurity & Data Privacy practice. He is also co-leader of the firm's National Security practice group, and a member of the firm's Congressional Investigations & Crisis Management team. After nearly two decades in private practice and public service across all three branches of the United States government, Raj is one of the most trusted voices in Washington. He has held senior appointments in the White House, the Department of Justice (DOJ) and the Department of Defense (DOD). Raj returned to Mayer Brown in 2015 after serving as General Counsel at the United States National Security Agency (NSA). Since returning to the firm, Raj has received numerous recognitions, including by American Lawyer ("Lateral All-Star"), Washingtonian magazine ("Top Lawyer"), National Law Journal ("Cybersecurity and Data Privacy Trailblazer"), and Cybersecurity Docket ("Incident Response 30").
As General Counsel of the NSA, Raj served as the agency's chief legal officer and senior advisor to the NSA Director. He supervised an office of approximately 100 lawyers and staff that handled litigation and provided legal advice across a range of issue areas, including foreign intelligence, cybersecurity, government contracts, intellectual property, research and technology, administrative law, government ethics and pending legislation. As a member of the NSA's senior leadership team, Raj represented the agency regularly with senior officials across the executive branch, as well as before the United States Congress, the Foreign Intelligence Surveillance Court and European and other foreign governments.
Congresswoman (D), 1st Congressional District of Washington
Congresswoman Suzan DelBene represents Washington's 1st Congressional District, which spans from northeast King County to the Canadian border, and includes parts of King, Snohomish, Skagit, and Whatcom counties.
First sworn into the House of Representatives on November 13, 2012, DelBene brings a unique voice to the nation's capital, with more than two decades of experience as a successful technology entrepreneur and business leader in the private sector. Her depth of experience and focus on achieving concrete results allows DelBene to break through Congressional gridlock and get things done, earning her praise from the Everett Herald, who called her "the most prolific, effective member of her freshman class."
Through her role on the House Judiciary Committee, DelBene is at the forefront of issues relating to technology and privacy, and has become a leading voice in the House calling for greater transparency and oversight of the NSA to restore American's privacy rights.
Founder, Red Branch Consulting PLLC | Senior Advisor, The Chertoff Group
Paul Rosenzweig is an accomplished writer and speaker with a national reputation in cyber security and homeland security. Mr. Rosenzweig is the founder of Red Branch Consulting PLLC, a homeland security consulting company, and a Senior Advisor to The Chertoff Group. He formerly served as Deputy Assistant Secretary for Policy in the Department of Homeland Security. He is a Distinguished Visiting Fellow at the Homeland Security Studies and Analysis Institute. He also serves as a Professorial Lecturer in Law at George Washington University, an Adjunct Professor at the Near East South Asia Center for Strategic Studies at the National Defense University, a Senior Editor of the Journal of National Security Law & Policy, and as a Visiting Fellow at The Heritage Foundation. In 2011 he was a Carnegie Fellow in National Security Journalism at the Medill School of Journalism, Northwestern University.
Mr. Rosenzweig is a cum laude graduate of the University of Chicago Law School. He has an M.S. in Chemical Oceanography from the Scripps Institution of Oceanography, University of California at San Diego and a B.A from Haverford College. Following graduation from law school he served as a law clerk to the Honorable R. Lanier Anderson, III of the United States Court of Appeals for the Eleventh Circuit.
He is the coauthor (with James Jay Carafano) of the book Winning the Long War: Lessons from the Cold War for Defeating Terrorism and Preserving Freedom and author of the book Cyber Warfare: How Conflicts in Cyberspace are Challenging America and Changing the World.
National Security Advisor, Office of Congressman Steny Hoyer
Daniel Silverberg serves as National Security Advisor for the Office of Congressman Steny Hoyer, overseeing foreign policy and national security issues. Previously Counsel and then General Counsel to the House Committee on Foreign Affairs for the past six years, Silverberg also worked as an attorney in the Office of General Counsel at the Department of Defense. He obtained his undergraduate degree from Harvard University and is a 2003 graduate of Stanford Law School.
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