The U.S. House Commerce Committee voted 35 to 16 last night to throw out an amendment to the Security and Freedom through Encryption (SAFE) Act, which would have given government agencies access to encrypted data.
The SAFE Act was proposed in part to loosen U.S. export policies for encryption tools and 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 Republican Representative Michael Oxley, of Ohio, and Democratic Representative Thomas Manton, of New York, to give the FBI and other law enforcement agencies access to encrypted information by providing them with the "keys" to unlock decrypted material.
"This 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," Oxley said in a position statement available on his Web site.
"I'm speaking here of terrorists. Anti-government militants. Organized crime syndicates. Drug cartels. Child pornographers. Pedophiles," he said in the statement.
According to Oxley's position, "Nothing 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."
A substitute amendment by Ed Markey, a Democrat from Massachusetts, and Rick White, a Republican from Washington State, received the Commerce Committee's approval. The Markey-White amendment suggests the creation of a National Electronic Technologies Center, or "NET Center" to give information and help about 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 John McCain, a Republican from Arizona, and Bob Kerrey, a Democrat 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 both the House and Senate bills have been greeted with dismay from both 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 "U.S. leadership in many areas of science and technology is likely to be jeopardized with no discernible benefits to our national interests," 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 "key management infrastructure treatment," said Elizabeth Rindskopf, former general counsel of the CIA now with Bryan Cave, a top 20 U.S. law firm.
U.S. 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 will encrypt information, keeping law enforcement agencies from monitoring activities.
Officials at European firms also have appealed for changes in the U.S. encryption policy.
At a press conference earlier this week, various groups representing the interests of computer and communications providers said that the loosened export standards may have to be sacrificed this legislative session in order to keep SAFE from being passed with the changes allowing federal law enforcement access.
If anything like the Oxley-Manton amendment is approved in the future, Congress should prepare for a long battle, said a spokeswoman for the Information Technology Industry Council (ITIC), which represents computer and communications providers.
"If the (House Commerce) committee passes something like Oxley-Manton, ITIC will oppose it. It will never see the light of day," said Jan Goebel, ITIC's director of public relations. "There is so much opposition to it and not just from the industry, but from people who use computers."
(Clare Haney in Hong Kong contributed to this story.)