AUDIE CORNISH, HOST:
Apple has until Friday to let a federal court know whether it will help the FBI crack the iPhone used by one of the shooters in the San Bernardino attacks. It's a case that pits law enforcement against the tech industry. Democratic Sen. Mark Warner of Virginia and Republican Congressman Michael McCaul of Texas want to create a national commission to make recommendations to clarify policy for cases like this. When I spoke to them earlier today, I asked what they see as the biggest issues for the commission to take on. Representative McCaul began.
MICHAEL MCCAUL: Well, for me it's really dealing with the terrorist threat and the threat from the criminals to use platforms to communicate in dark space, and we can't see it. If you can't see the communications, you can't stop it.
CORNISH: And by dark, you mean encrypted space.
MCCAUL: An encrypted, dark platform's dark space. To me, it's one of the greatest challenges to federal law enforcement and, quite honestly, one of the greatest challenges to the homeland. The more they communicate in darkness and the less we can see what they're saying, then the greater the threat to the homeland.
MARK WARNER: And for me, Audie, I want a solution that maintains Americans ability to innovate, protect our privacy but also a solution that works against terrorists and criminals. It really does work. A static, short-term solution that would simply push people to foreign-based software, hardware, isn't going to make Americans safer. To get this right, we're going to have to engage with the rest of the international community. If we don't get this right, we could lead to a balkanization of the Internet that would make Americans less safe and dramatically diminish America's ability to lead in innovation.
CORNISH: People think back to all the committees and commission recommendations that Congress, like, ignores (laughter). So why would this be any different?
WARNER: Fair criticism - one of the things that we want to try to emulate is the 9/11 Commission where Congress took the vast majority of recommendations and put them into law.
CORNISH: You both wrote in an op-ed in the Washington Post back in December before this fight with Apple that, quote, "we cannot wait for the next attack before we outline our options, nor should we legislate out of fear." Congressman McCaul, I want to start with you. Is that what's happening? Do you sense policymakers weighing their options from a position of fear?
MCCAUL: Well, I think there's a tendency to respond to a crisis in a knee-jerk fashion, and that's often when we make mistakes in legislating. What we are attempting to do is a more thoughtful approach - putting a 9/11-style commission together to provide the solutions. We think that there could be a technology solution. There may be a policy solution. But until we get the top experts in the room to advise the Congress, we can't move forward.
CORNISH: In the meantime, people are, of course, watching closely this case between Apple and the FBI. Sen. Warner, I want to start with you. To you, what is the right answer? What should Apple do?
WARNER: To me, that case is going to be fully litigated, and I think nothing more proposing is going to stop that litigation. When I went to law school, I never claimed to be a legal expert, but a lot of the law they're arguing about is the so-called All Writs Act of 1789. Clearly that would be, to me, as a non-legal expert at this point, an indicator that maybe we need to build on some of the previous jurisprudence to kind of sort this through. I think that what we want to do is get ahead of this next circumstance with some policy prescriptions so we don't have to simply move to the courts to resolve this. I think it's, at the end of the day, Congress and the executives' responsibility.
CORNISH: And Chairman McCaul, to you - you're chairman of the House Homeland Security Committee. What do you think Apple should do in this case?
MCCAUL: Well, look, on one hand you have a terrorist who killed multiple people who's dead. We have his phone. Some of it was backed up in the cloud. Some of it was not. We have the device itself. We have a court order. A federal judge has ordered that that be opened. Apple is saying they don't have the capability to do that, that they have to build a special software program to get into the hardware which will then expose a vulnerability.
So it just really kind of, I think, demonstrates the complexity of this issue. When you talk to the tech companies, you get that response. You know, as a former federal prosecutor, I get the idea if you have a court order and a device, you got to be able to get into that, but it's not as simple as that. As I've studied this, there's no easy answer to it, and that's why we think pulling this team of experts together to advise us as policymakers, to make the right decisions and either pass legislation or find a technology solution to the problem.
CORNISH: Texas Republican Congressman Michael McCaul, thank you for coming on the program.
MCCAUL: Oh, thanks for having me.
CORNISH: And Virginia Democrat, Sen. Mark Warner, thank you for speaking with us.
WARNER: Thank you.
CORNISH: And they'll introduce their bill to create a commission on security and technology challenges next week. Transcript provided by NPR, Copyright NPR.