House IRC passes SAFE bill; Goodlatte optimistic (NYT coverage)
July 24, 1997
Flush With Encryption Bill Victory,
Congressman Girds for Future Battles
By JERI CLAUSING
R epresentative Bob Goodlatte was in a fine mood on Wednesday, and
with good reason. The Virginia Republican had just won a first,
crucial round in his battle with the Clinton Administration over
rules prohibiting American companies from exporting encryption
technology.
Goodlatte wants the restrictions removed, and he has introduced the
SAFE bill -- for Safety and Freedom Through Encryption -- to do
just that. In a tense but lively hearing on Tuesday evening, the
Administration pulled out all the stops in its attempt to kill
SAFE, waging an intense lobbying effort that included classified
briefings and warnings from federal crime fighters that SAFE could
aid terrorists, child pornographers and drug dealers.
But when the votes were counted after nearly two hours of testimony
and questions, Goodlatte had won a decisive victory. The House
International Relations Committee voted against President Clinton
and its own leadership, rejecting by a 22-to-13 vote the
Administration's attempt to gut the bill.
"We're very pleased," Goodlatte said on Wednesday. "It really is
one of the most critical votes in this process on the House side."
The measure still has to make its way through three other House
committees. But since those panels -- National Security,
Intelligence and Commerce -- lack authority over the key provision
that would lift regulation of encryption technology exports,
Goodlatte said any further fights over the guts of his measure
would have to take place on the House floor, where he currently has
the votes of at least 200 cosponsors.
"He has a right to be happy," Don Haynes of the American Civil
Liberties Union said Wednesday. "The vote was very important. It
represented the first concerted Administration attack on the
Goodlatte bill in the House. Up until now, this committee well
might have been a very receptive committee for the Administration.
The fact that they by a 2-to-1 voted rejected them is very
significant."
Goodlatte's bill would remove the current restrictions on the
export of sophisticated encryption technology. The Administration,
through the International Relations Committee Chairman,
Representative Benjamin Gilman, , tried to gut the bill by adding a
provision that would have given the President ultimate control of
export policies if national security was deemed at risk.
The Administration had already succeeded in gutting a similar
measure in the Senate, where a pro-export bill was replaced with a
measure by Senators Bob Kerrey, Democrat of Nebraska, and John
McCain, Republican of Arizona, that would ease some export
restrictions but still give the President final control when
national security is an issue. That bill also contains a "key
recovery" provision that would give the government the secret codes
that software and computer companies use to scramble their data for
secure transactions.
A spokesman for Senator Kerrey, Greg Weiner, said that Kerrey was
not disheartened by the House committee vote.
"It's a long process," Weiner said, emphasizing that the
Kerrey-McCain bill had been blessed by the Senate Commerce
Committee.
But those close to the debate say that Senate support for the
Administration-backed Kerrey-McCain bill is waning. The Judiciary
Committee has asked for jurisdiction on the matter after an
informational hearing two weeks ago that it's chairman, Orrin
Hatch, Republican of Utah, said raised some very difficult
questions.
Both Weiner and Goodlatte said they hoped they could reach a
meeting of the minds.
Goodlatte said that the Administration's policy on encryption is in
direct conflict with the hands-off, tax-free, market-driven
Internet policy that the President called for earlier this month in
his policy statement on electronic commerce.
It is also counter to the Administration's attempts to protect
children on the Internet, Goodlatte said, arguing that encryption
could be used widely to scramble adult-oriented images.
"Last week I attended a summit at the White House and had the
opportunity to talk with Gore and the President about their efforts
to keep pornography off the Internet," Goodlatte said. "Everyone
looked at me when I added that one technology that hasn't been
discussed and one I really want to call your attention to is
encryption, because encryption can be used to keep pornography away
from children on the Internet."
Goodlatte said he welcomed the opportunity for discussions with the
Administration because "they cling to the idea that somehow
encryption is something they can still control access to."
Not so, the Congressman insists.
"There's just no way they can do it," Goodlatte said. "It's not
like a jet, or a bomb or even a mainframe computer. You're talking
about little ones and zeros that go through wires. You're simply
not going to be able to stop criminals from getting access to that
technology."
While the complicated debate would seem to be draw a mainly
high-tech audience, Goodlatte's bill is being closely watched --
and supported -- by groups as a diverse as the ACLU, the National
Rifle Association, the banking industry and chambers of commerce.
"I think there is an increasing awareness that encryption is not
just some geek technology," Haynes said. "Instead, even if you
don't know how it works, privacy is at risk -- both on the phone
and in online speech -- and we need ways to protect it."
The debate in Congress has essentially turned into one of everyone
else vs. law enforcement, with the Federal Bureau of Investigation
leading the charge.
Goodlatte and Haynes insist that the issue is control.
"I think that they are living in the past," Goodlatte said of the
FBI. "There was a time when only governments, spies and secret
agents had access to encryption technology. That has changed
dramatically with the PC. Anybody who wants to have access to
encryption can get it. The problem is whether or not the American
software industry can be competitive in this field."
The industry has long lobbied against the Administration's export
prohibitions, arguing that since most other nations do not prohibit
exporting encryption technology, American companies cannot compete
in an international market. The ranking Democrat on the
International Relations Committee, Lee Hamilton of Indiana, led the
charge for the Administration, repeatedly prodding representatives
of the FBI, the National Security Agency and the Drug Enforcement
Administration to explain how Goodlatte's bill would hurt their
abilities to protect the nation and its citizens from terrorists
and organized criminals.
"We don't wiretap because we like it or because we get a personal
thrill out of it," testified James Kallstrom, assistant FBI
director in the New York office. "We wiretap to save lives -- to
break up major crimes."
Kallstrom added: "We're in the information business. If we are
going to be excluded in the information age due to unbreakable
codes, we're not going to save lives like we do today."
To many members of Congress, the FBI has the last word on such
policies, regardless of who lines up on the other side.
"I look to the FBI for direction," Representative Jon Fox,
Republican of Pennsylvania, told his colleagues on the
International Relations Committee. His endorsement of the
Administration's stance came after supporters of Goodlatte's bill
argued that strong, unregulated encryption would enhance rather
than hurt national security by giving computer operators stronger
tools to protect Internet commerce, financial transactions and the
nation's power grids.
"I don't know how there are two sides to the public safety issue,"
Fox said. "These are the experts."
Despite the fact that Silicon Valley is a big part of her
constituency, Senator Dianne Feinstein, Democrat of California, had
echoed sentiments similar to Fox's after FBI Director Louis B.
Freeh told the Senate Judiciary Committee earlier this month that
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."
"I get so many conflicting signals," Feinstein told Freeh. "I, for
one, will be guided by what you gentlemen say."
But Haynes said that the FBI was really only defending one thing:
its access to technology for wiretapping.
"Thirteen states have no state laws allowing wiretapping," he said.
"Is absolute lawlessness running rampant in those states? And if
not, how do they manage to enforce the laws without wiretapping."
Haynes added: "The FBI proposal increases the likeliness of crime,
because if it has any domestic impact at all, it reduces the level
of encryption protection of computers, financial networks,
networks, hospitals. All these things that use computers are more
at risk of hacking, extortion from criminals."
Goodlatte's bill is scheduled for a hearing next week in the House
National Security Committee.
Despite his optimism on Wednesday, Goodlatte admitted: "I don't
take anything for granted. People here in positions of influence
are going to be working against me. We have a long way to go, but
it is moving along very well."
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Jeri Clausing at jeri@nytimes.com welcomes your comments and
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Copyright 1997 The New York Times Company