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Amendment to Encryption Bill Tossed Out

House committee decides government agencies won%squott get keys to encrypted data

By Nancy Weil, PCWorld   

The SAFE Act was proposed in part to loosen U.S. export policies for encryption tools and was backed by President Clinton.

But following concerns expressed by FBI Director Louis Freeh that terrorists and criminals increasingly will use encryption technology to scramble digital information stored in computers or sent over the Internet, the act took a markedly different tone in the Commerce Committee.

At issue last night was the Oxley-Manton Amendment proposed by representatives Michael Oxley, a Republican from Ohio, and Thomas Manton, a Democrat from New York, to give the FBI and other law enforcement agencies access to encrypted information by providing them with the %dquotkeys%dquot to unlock encrypted material.

%dquotThis technology, in criminal hands or the hands of enemies of the United States, can be turned to ill purposes with devastating consequences for members of a free society,%dquot Oxley said in a position statement available on his Web site.

%dquotI%squotm speaking here of terrorists. Antigovernment militants. Organized crime syndicates. Drug cartels. Child pornographers. Pedophiles,%dquot he said in the statement.

According to Oxley%squots position, %dquotNothing in our amendment will alter in any way the authority of government agencies to access private material. The same constitutional protections for privacy will continue to apply. We are merely talking about building-in the technical capability to decrypt encoded communications when there is a warrant to do so.%dquot

A substitute amendment by representatives Ed Markey, a Democrat from Massachusetts, and Rick White, a Republican from Washington State, received the Commerce Committee%squots approval. The Markey-White amendment suggests the creation of a National Electronic Technologies Center, or %dquotNET Center%dquot to provide information and help regarding decryption technologies and techniques to federal law enforcement agencies.

The Markey-White amendment will also double the jail sentence for criminals who use encryption.

A companion Senate bill, introduced by Republican John McCain from Arizona and Democrat Bob Kerrey from Nebraska, remains alive this session. That bill also is seen as a threat by some because it proposes domestic controls on encryption use.

By and large, amendments to the House and Senate bills have been greeted with dismay by the software and hardware segments of the industry, which have long supported a move toward changes in encryption-tool export regulations.

Leading U.S. scientific, mathematics, and engineering societies have also joined forces to protest the proposed encryption legislation, arguing that %dquotU.S. leadership in many areas of science and technology is likely to be jeopardized with no discernible benefits to our national interests,%dquot according to a joint statement.

Currently, U.S. businesses are allowed by law to freely export encryption tools based on 40-bit encryption. Exporting 56-bit key-recovery technology requires that private keys be used by two parties to encode and decode material. The restriction on the open export of more powerful tools has been in place because of national security concerns -- the same issues that have bogged down the SAFE Act of late.

U.S. businesses may export encryption tools of greater strength if they show that the product qualifies for %dquotkey management infrastructure treatment,%dquot said Elizabeth Rindskopf, former general counsel of the CIA, now with Bryan Cave, a top-20 U.S. law firm.

Businesses have argued they are seriously hampered by not being allowed to easily market more powerful tools overseas. The U.S. government restriction on imports was imposed because of fears that criminals and terrorists would encrypt information, keeping law enforcement agencies from monitoring activities.