House Panel Rejects FBI Plan on Encryption (NYT)

      September 25, 1997
      
House Panel Rejects FBI Plan on Encryption

      By JERI CLAUSING Bio
      
     W ASHINGTON The House Commerce Committee put the brakes on a
     fast-moving plan to put the first-ever domestic controls on data
     scrambling technology, rejecting 35 to 16 an Federal Bureau of
     Investigation-backed proposal to require all American computers
     users to register the codes to their encrypted software.
     
     The vote after nearly four hours of emotional debate on the balance
     between constitutional rights and the need for tools to fight
     terrorists, pedophiles and drug cartels was hailed as a victory by
     software and communications industry groups, civil libertarians,
     scientists and lawyers who have been scrambling over the past few
     weeks to reverse the FBI's momentum in gutting the Safety and
     Freedom Through Encryption act, known as SAFE.
     
     "Today's vote to preserve the intent of HR-695 [SAFE] is a huge
     victory for users of communication technology and reaffirms the
     Fourth Amendment's validity in the information age," said Robert
     Holleyman, president of the a Business Software Alliance
     .
     
     "Although our forefathers could not have envisioned the
     technological developments that we have witnessed, even in the last
     decade, they understood the critical, timeless need for privacy and
     security."
     
     Jerry Berman, executive director of the Center for Democracy and
     Technology, said the bill essentially puts the bill in gridlock,
     but "we have bought time to make a convincing case. ... It's
     uphill, but we're not being steamrolled about this anymore."
     
     Introduced by Representatives Bob Goodlatte, a Virginia Republican,
     and Zoe Lofgren, a California Democrat, SAFE was intended to ease
     current export controls on strong encryption and prohibit and key
     recovery systems, like a voluntary one that had been proposed by
     the Clinton administration.
     
     But after an initial groundswell of support and after defeating law
     enforcement and the administration in the House Judiciary and
     International Relations Committees, the SAFE act lost ground to a
     full-court press by the FBI and the National Security Agency. In a
     series of classified briefings, President Clinton's top crime
     fighters convinced many House members that they must go even beyond
     the White House proposal. House members, after the briefings,
     repeatedly said that they believed the FBI plan was needed to
     protect the country from terrorists, drug cartels and child
     pornographers on the Internet.
     
     That theme was echoed repeatedly in Wednesday's Commerce Committee
     hearing by Representative Michael Oxley, an Ohio Republican, and
     Thomas Manton, a New York Democrat, who pushed the FBI-backed
     amendment, which would have required all software sold in the
     United States after 1999 have a spare key giving law enforcement
     "immediate access."
     
     "Law abiding citizens have no reason to fear this," Oxley said.
     
     Two other House committees, National Security and Intelligence,
     backed the administration with amendments that would have
     strengthened export controls and required that law enforcement be
     able to, with the proper judicial approval, gain immediate access
     to all domestic encryption keys.
     
     Though no specific infrastructure or system for keeping the keys
     was proposed, Edward A. Allen, section chief of the FBI's
     Engineering Research Facility, said on Wednesday that the system
     the FBI envisions would require that all individual computer users
     register their encryption keys with a third party, like a
     certificate authority. Large companies could keep their own keys,
     as long as they were readily accessible.
     
     Civil rights groups and law professors around the country assailed
     such a plan as a clear violation of both First Amendment free
     speech rights and the Fourth Amendment protections against unlawful
     search and seizure.
     
     The bill as adopted by the Commerce Committee is essentially the
     sixth version of the bill. In an attempt to address law enforcement
     concerns, the panel adopted an amendment by Representatives Edward
     J. Markey, a Massachusetts Democrat, and Rick White, a Washington
     Republican, that would establish a "NET Center" under the
     Department of Justice in which industry and law enforcement
     scientists would work together to help law enforcement authorities
     break encrypted codes used in crimes.
     
     The amendment also would require a six-month study by the
     Department of Commerce's National Telecommunications Information
     Agency on the ramifications of mandatory key recovery and would
     double the criminal penalties for anyone who uses encryption to
     commit a felony.
     
     Another amendment, by Representative W.J. Tauzin, a Louisiana
     Republican, would require that a five-member panel of government,
     industry and law enforcement be appointed to study the
     controversial encryption issues issue and make recommendations to
     Congress within 180 days after enactment of SAFE.
     
     "This gives us a lot of new momentum," Goodlatte said of the
     changes to the bill, which still has to go through the House Rules
     Committee to get to a floor vote.
     
     If the Rules Committee agrees to send the bill to the floor, it
     must first reconcile the various versions. And the Rules Committee
     chairman, Gerald H. Solomon, a New York Republican, in a letter to
     the Commerce Committee this week said he the bill would not move to
     the House floor without the Oxley amendment.
     
     "I think it makes it clear that we have the opportunity now to go
     to the floor, to go to the Rules Committee and point out that this
     is a serious issue not only from the standpoint of the business,
     but as many of the members in there noted, having strong encryption
     helps to fight crime and we want the good guys to have it, if the
     bad guys are already going to have it through other means,"
     Goodlatte said.
     
     "Getting encryption in the hands of businesses and individuals in
     this country not only protects their privacy but also prevents
     crime of credit card theft, medical record theft ... keeps
     terrorists from breaking into the New York Stock Exchange."
     
     Markey said he is convinced that continued debate will only help
     the SAFE bill.
     
     "I could feel members swinging over towards the position that would
     offer Americans more privacy protections," he said. "And I think
     that is going to happen in every single public debate that is held
     on the issue. As a result we now have reached a new stage where the
     closed-door political strategizing has to be replaced by a public
     and honest discussion."
                                      
                 Copyright 1997 The New York Times Company