Encryption Tops Wide-Ranging Net Agenda in Congress (NYT)
September 4, 1997
Encryption Tops Wide-Ranging Net Agenda in Congress
By JERI CLAUSING Bio
W ASHINGTON -- As Congress returns
from its summer break this week, it faces a host of legislative
initiatives that could shape the future of online privacy, commerce
and jurisdiction.
Topping the agenda is encryption, an issue that has pitted
President Clinton and his top crime fighters against virtually
everybody else.
The word encryption traditionally conjures images of spies and
sophisticated international organized crime rings. But with the
dawn of the Internet, it is also the key to private communication
and secure business transactions.
And while Clinton on July 1 took a very public stand for a
tax-free, self-governed Internet, his administration is pushing to
create a key-recovery system that would keep encrypted codes on
file for law enforcement officials to access.
But the administration is not alone in backing bills that would
appear to be contradictory to the principles of a free,
self-governed Internet. Some groups are fighting to ban or regulate
unsolicited commercial e-mail, or spam. Others want to ban gambling
on the Internet and criminalize copyright infringements.
Of the dozen or so Internet or computer-related bills pending in
Congress, encryption is among the first orders of business.
Subcommittees of both the House and Senate Judiciary committees
have scheduled hearings this week.
The House bill, known as the Security and Freedom Through
Encryption Act, or SAFE, legislation backed by virtually everyone
but the administration, would lift all current export controls on
encryption software and prohibit a government key-recovery system.
Despite intense lobbying by the administration, which included
classified briefings for members of key House committees, the bill
has been endorsed by the House Commerce and International Relations
committees. And with more than 250 of the House's 435 members
cosponsoring the act, sponsoring Representatives Bob Goodlatte,
Republican of Virginia, and Zoe Lofgren, a California Democrat, are
optimistic about getting the bill through the full House as early
as this month.
The Senate, however, has been less inclined to buck the
administration. The Senate Commerce Committee passed a bill by
Senator Bob Kerrey, Democrat of Nebraska, and the committee's
chariman, John McCain, Republican of Arizona, that includes the
administration-backed key-recovery plan. But there are two other
Senate encryption bills that are closer to the SAFE act in the
House and a Judiciary subcommittee hearing is scheduled on the
issue Thursday.
Still, at a Judiciary subcommittee hearing on Wednesday, Congresss
first day back, Senator Dianne Feinstein, a Democrat who represents
California and its technology-rich Silicon Valley, called for
mandatory key recovery of encrypted software. And Louis J. Freeh,
the director of the FBI, raised the prospect of also requiring
Internet service providers to have keys to the data flowing over
their networks.
"Law enforcement needs to have a system for immediate decryption"
when a judge determines it is likely that crime is being or is
about to be committed, Freeh told the Subcommittee on Technology,
Terrorism and Government Information. "We should also look at
whether network service providers should have a system for
immediate decryption."
Encouraged by the Supreme Court's decision striking down the
Communications Decency Act this summer, an unusually broad cross
section of advocacy groups, including the American Civil Liberties
Union, the Electronic Freedom Foundation, the Business Software
Alliance and the National Rifle Association are bent on killing
bills that would regulate encryption technology.
And as was the case with the Communications Decency Act, lawmakers
backing the administration's call for a key-recovery system are
warning of dire consequences if Congress fails to enact such a
system in an effort to thwart terrorists, online pedophiles and
drug dealers.
"The looming specter of the widespread use of robust, virtually
uncrackable encryption is one of the most difficult problems
confronting law enforcement as the next century approaches," Freeh
told the Senate Judiciary Committee earlier this summer. "At stake
are some of our most valuable and reliable investigative techniques
and the public safety of our citizens. We believe that unless a
balanced approach to encryption is adopted that includes a viable
key infrastructure, the ability of law enforcement to investigate
and sometimes prevent the most serious crimes and terrorism will be
severely impaired. Our national security will also be jeopardized."
Opponents of a key recovery system, on the other hand, insist that
terrorists and drug cartels are smart enough not to use encrypted
codes to which law enforcement agencies have access. And they argue
that the current export restrictions on strong encryption developed
in the United States could put the nation at a competitive
disadvantage in the fast-growing and fast-changing digital
communications industry.
Others say it's a serious threat to civil liberties.
"This is equally as serious as the Communications Decency Act,"
said Shari Steele of the Electronic Frontier Foundation. While the
Communications Dececny Act "was about freedom of speech, making
sure that speech was protected online," she said, "encryption is
about privacy making sure we are able to speak privately, and
making sure our transactions are private."
In contrast to Clinton's support of proposals like the Internet Tax
Freedom Act, which would prohibit states from taxing online
commerce, Steele says the administration's encryption policies will
stymie Internet development.
"The administration, if anything, is moving in the wrong
direction," Steele said. "We are very dissatisfied. When we first
voted for Clinton, there was an expectation that Vice President Al
Gore was this technologically savvy guy. Instead, he has turned out
to be a real enemy of the people when it comes to Internet issues."
Software companies insist that the freedom to develop strong
encryption would prove to be the best weapon against online crime
because encryption would thwart more thieves and eavesdroppers than
it would facilitate organized crime and terrorism.
The issue is also changing the perception of Washington among
high-tech companies. In the wake of the Communications Decency Act,
and facing a threat on the encryption issue, the computer industry,
increasingly wary of what it sees as the technical naïveté of
Congress, is moving quickly to improve its clout through campaign
donations and lobbying.
According to a recent report by the Center for Responsive Politics,
the industry donated $7.3 million through political action
committees, "soft money" and individual contributions to federal
candidates and parties. That's 52 percent more than was spent in
the 1991-1992 election cycle. During calendar year 1996, the
industry spent another $19.9 million on lobbying expenses.
Among the Top 10 of Congressional beneficiaries of this new
high-tech largesse is Feinstein, who, given her support of the
FBI's position, is sure to be feeling some pressure as the
Judiciary Committee prepares to take up the issue. During
discussion of the Kerrey-McCain bill in July, Feinstein left before
her constituents from the software industry in the Silicon Valley
testified -- and after telling representatives of the FBI and the
National Security Agency that she would defer to their expertise on
what was a confusing issue.
At Wednesdays subcommittee hearing, Feinstein said "The bottom line
is, I think nothing short of mandatory key recovery does the job."
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Copyright 1997 The New York Times Company