House National Security Committee guts SAFE bill (NYT)
September 10, 1997
House Panel Votes to Strengthen
Export Controls on Encryption
By JERI CLAUSING Bio
W ASHINGTON -- The House National Security Committee, citing the
persuasion of classified briefings, on Tuesday voted to strengthen
rather than ease export restrictions on encryption technology. At
the same time, the FBI continued its push to require that all
domestic data scrambling products have a spare key so law
enforcement agencies can gain access to secret communications.
The National Security Committee, in a 45 to 1 vote, gutted the
Safety and Freedom Through Encryption (SAFE) Act by Representatives
Bob Goodlatte, Republican of Virginia, and Zoe Lofgren, Democrat of
California, by adding an amendment that would give the President
and defense secretary continued control over the export of
encryption products.
The bill as introduced and endorsed by the House Judiciary and
International Relations Committees would lift all export controls
on strong encryption products and prohibit any type of key-recovery
scheme like the FBI wants. National Security only has authority
over the export provisions of the bill, but the Commerce and
Intelligence Committees have until the end of the week to make
changes to the rest of the proposal.
The Intelligence Committee held a closed hearing on the bill
Tuesday and plans a classified mark-up session on the SAFE bill
Thursday at which some fear it will be substituted with the
key-recovery plan being pushed by Louis J. Freeh, the director of
the Federal Bureau of Investigation.
The Clinton administration has been pushing for a voluntary
key-recovery system, but Freeh last week began floating the
stronger proposal that would essentially require that all encrypted
software contain a feature that would create a spare key or some
other trap door allowing "immediate" decryption of any user's
messages or files without the user's knowledge. It would also
require that Internet service providers ensure that encrypted
communication transmitted over their lines could be decoded.
The Clinton administration has not commented on Freeh's proposal,
other than to say their position has not changed.
Vice President Al Gore reiterated that sentiment on Tuesday morning
in a speech to the Software Publishers Association convention here.
"The administration's position has not changed on encryption, but
this is an area where we need to find ways to work together to
balance the legitimate needs of law enforcement with the needs of
the marketplace," he said in the speech.
The administrations' current policy on encryption products, which
use mathematical formulas to scramble and unscramble information
rapidly and securely, imposes export controls but no domestic
regulations.
"As we rely more and more on a medium as vast and sprawling and as
unregulated as the Internet, it is crucial that we find new ways to
safeguard our most basic rights and liberties so that we can trade
and learn and communicate in safety and in security," Gore said.
The Information Technology Association of America sent a letter to
Gore Tuesday, calling Freeh's proposal "a significant step
backward." It added: "While administration officials have said that
Director Freeh's comments merely reflect the best interest of law
enforcement, we are concerned that his actions without a senior
level response reveal, at best, an official out of step with the
Administration's position and, at worst, a blatant attempt to use
Director Freeh to perform an end-run around previous Administration
statements."
Jerry Berman, the director of the Center For Democracy and
Technology said the Freeh proposal "is not the first step towards
the surveillance society; it is the surveillance society."
On export controls, supporters of the Lofgren and Goodlatte bill
argue that because so many encryption products are available in
other countries and over the Internet, any restrictions simply put
U.S. companies at a competitive disadvantage.
But members of the National Security Committee said classified
briefings by the FBI and National Security Agency have convinced
them that some controls are needed to protect U.S. interests from
terrorists and rogue countries.
"I can't be more impressed with the importance of this issue, more
so than anything else we've dealt with," said Representative
Patrick Kennedy, Democrat of Rhode Island.
"My understanding is that the National Security Agency wants more
time," he said. "A good percentage of intelligence is not
encrypted, but what is takes a lot of time. What they are basically
worried about is that this is going to be overwhelming. They want
this thing to slow down."
The amendment by Representatives Curt Weldon, Republican of
Pennsylvania, and Ronald Dellums, Democrat of California, gives the
Defense Department even more power than it currently has over the
export of encryption products. Under export policies set by
President Clinton in December, a panel of the state, military,
energy, national security and FBI officials decides which
non-recoverable encryption products with a 40-bit or more key can
be exported. The amendment would essentially put all that power in
the hands of the military by giving the defense secretary veto
authority over any export decisions.
Software companies, civil libertarians and Internet user groups
were stunned by the amendment.
"This is a disaster," said Rebecca Gould, vice president for public
policy at the Business Software Alliance.
"This was a bold step backward,'" said Alan Davidson, counsel for
the Center For Democracy and Technology. "It is worse than the
status quo. It codifies into law a bad standard.'"
Representative Sonny Bono, Republican., who was an ardent backer of
the SAFE bill in the House Judiciary committee, said he changed his
mind and backed the amendment after learning more about the bill.
"Clearly, they're telling members of Congress that if they hadn't
had this authority, they wouldn't have been able to catch
somebody," Gould said.
Lofgren declined to comment on what was being discussed in the
classified briefings. "But it's probably not much different from
what you're hearing publicly," she said
Asked if she was discouraged by Tuesday's action, Lofgren said it
was exactly what she expected from the National Security Committee,
which has never been friendly to the SAFE act.
Administration officials said they had problems with the amendment
but preferred it over the original bill.
The various versions of the bill will go to the House Rules
Committee, which will determine what text the full House may
consider. A majority of members of the Rules Committee are among
the 251 co-sponsors of the original Goodlatte bill, but after
Tuesday's vote, no one would predict how the committee will vote.
"Bob and I need to talk strategy, but we're working on it," Lofgren
said.
Copyright 1997 The New York Times Company