House Intelligence Committe Votes on (FBI) Encryption Bill
September 12, 1997
House Committee Casts Wide Net With Encryption Vote
By JERI CLAUSING Bio
W ASHINGTON The House Select Committee on Intelligence, in a vote
that critics said would effectively outlaw software as we know it,
on Thursday endorsed an FBI-backed encryption proposal requiring
all data scrambling technology to be equipped with a spare key for
law enforcement.
The proposal would establish the first controls on domestic
encryption technology and mandate a decryption system, called key
recovery, that would give law enforcement access to computer
communications with a court order.
The bill casts such a wide net that software makers said it would
cover virtually every type of software made today. There were also
questions about its impact on telecommunications, such as digital
phones.
The Intelligence Committee vote during a closed meeting came as
Louis J. Freeh, the director of the Federal Bureau of
Investigation, continued to gain momentum for his proposal to
mandate key recovery and strengthen export controls by giving the
defense secretary a stronger voice in decisions about what
technologies can be exported.
It was the second committee vote this week gutting the Safety and
Freedom Through Encryption Act, a bill by Representatives Bob
Goodlatte, Republican of Virginia, and Zoe Lofgren, Democrat of
California, that was designed to ease export controls on encryption
technology and prohibit key recovery.
The House National Security Committee on Tuesday tightened the
export provisions. A third committee, Commerce, was prepared to
also adopt a version of the Freeh plan Thursday, but then won a
two-week delay to work on a compromise.
Though few expect the Freeh plan to ever become law, the momentum
his plan has gained on Capitol Hill this week has stunned civil
libertarians, software makers and the SAFE sponsors. This summer,
they watched the SAFE bill sail through the House Judiciary and
International Relations committees and pick up more than 250
sponsors. And they left for the August break confident of pushing
it through the full House this fall.
But since Congress has returned from its August break, Freeh and
his agents have put on the full-court press, holding a series of
classified briefings for members and winning support that goes even
farther than the voluntary key recovery plan in the Senate's
McCain-Kerrey encryption bill.
Repeatedly this week, congressmen have cited classified briefings
as moving them to support the bill. And Goodlatte and Lofgren have
sat on the sidelines watching SAFE co-sponsors vote against the
bill.
Porter Goss, the Florida Republican who is the Intelligence
Committee's chairman, said his committee adopted the amendments to
the SAFE bill to make sure balance was struck between commerce and
law enforcement, "to ensure that we do not plow full steam ahead
into the 21st century's information age having seriously weakened
our ability to protect the national security."
"American citizens have a right to their privacy and their access
to the freest possible markets. But they also have a right to their
safety and security," he said. "Terrorist groups that plot to blow
up buildings; drug cartels that seek to poison our children and
those who proliferate in deadly chemical and biological weapons are
all formidable opponents of peace and security in the global
society. These bad actors must know that the United States' law
enforcement and national security agencies, working under proper
oversight, will have the tools to frustrate."
Lofgren, while emphasizing that she takes her oath of secrecy very
seriously, questioned the necessity of the briefings on this topic.
"There is nothing being said that couldn't be or hasn't been said
in public," she said. "But in closed meetings, misleading
statements aren't always corrected."
The Intelligence Committee version of the bill would, among other
things, require that all encryption products manufactured and
distributed for sale or use in the United States after Jan. 31,
2000, include features that would allow law enforcement, upon
presentation of a court order, to gain immediate access to
"plaintext" data. It would still allow the use of current software
even after that date.
Peter Harter, public policy counsel for Netscape Communications
Corp., said that bill "criminalizes the manufacture of software as
we know it today and allows law enforcement to dictate industrial
policy."
Jerry Berman, executive director of the Center for Democracy and
Technology, said the plan raises a number of privacy, computer
security and constitutional questions. He compared it to being
required to turn over your spare house key to the FBI.
"This one would have to be available to the FBI and they could use
it without you knowing about it," he said. "This is setting up a
massive bureaucracy. It is setting up a whole search and seizure
regime where there is no notice."
One Commerce Committee member, Michael Oxley, Republican of Ohio, a
former FBI agent, responded with a quote from Freeh: "We need a
Fourth Amendment for the information age."
Finding a balance between privacy, business and law enforcement was
the theme repeatedly echoed by Commerce Committee members as they
waited to hear whether leadership would give them two more weeks on
the bill.
"This means that there is not going to be encryption legislation
this year," Berman said. "There's going to be a deadlock."
Lofgren, however, remained optimistic.
"I think this two week cooling-off period is probably good," she
said. "We need to sort through this in a less-charged atmosphere."
Several other encryption proposals are pending in the Senate,
including a bill by Senators Bob Kerrey, Democrat of Nebraska, and
John McCain, Republican of Arizona, which contains an
administration-backed plan for voluntary domestic key recovery.
The administration has insisted its position remains unchanged and
that Freeh's more extreme position is independent. But William A.
Reinsch, the Commerce Department's undersecretary for export
administration, said on Wednesday that if the Freeh plan were
adopted it would be considered.
Sue Hofer, a spokeswoman in Reinsch's office, said the government
doesn't want keys to everyone's communications. "We're talking
about being able to seek lawful access if they can convince a judge
you are a criminal," she said.
Copyright 1997 The New York Times Company