Sponsors' Summary of the Security and Freedom through Encryption (SAFE) Act.
Date: February 25, 1999.
Source: Office of Rep. Zoe Lofgren.

Section-by-section summary of the Security And Freedom through Encryption (SAFE) Act

Section 1. Title

This section states that the title of the bill is the Security And Freedom through Encryption (SAFE) Act.

Section 2. Domestic use and sale of encryption; prohibition on mandatory key escrow; use of encryption in furtherance of a federal felony

This section creates a new chapter in title 18 of the U.S. Code regarding the use and sale of encryption within the United States, the prohibition of a mandatory key escrow system, and the unlawful use of encryption in furtherance of a criminal act.

New section 2801 contains a series of definitions relating to encryption.

New section 2802 states that it is legal for any person in the United States or any United States person in a foreign country to use any form of encryption.

New section 2803 states that it is legal for any person in the United States to sell any type of encryption product in interstate commerce.

New section 2804 prohibits the federal government or a state from requiring or conditioning approval on a requirement that encryption products be built with a third-party access feature (also known as "key escrow" or "key recovery") or that persons with control over decryption keys provide access to someone other than the key owner. This section also prohibits the federal government or a state from conditioning the use of strong encryption on the use of government-approved certificate authorities or electronic signatures. Exceptions to this section exist for law enforcement or intelligence officers seeking access to encrypted information and where the federal government or a state wishes to use key escrow/key recovery encryption for its own systems.

New section 2805 makes it a crime to use encryption unlawfully in furtherance of some other crime. This new crime is punishable with a sentence of 5 years for a first offense and 10 years for a second or subsequent offense. To trigger the provisions of this section, a person must be found guilty of a federal felony in which the person knowingly and willfully used encryption to conceal that felony for the purpose of avoiding detection by law enforcement. This section also states that the use of encryption cannot, by itself, be the basis for establishing probable cause with respect to a criminal offense or a search warrant.

Section 3. Exports of encryption

This section makes a series of changes to the export of encryption products.

Subsection (a) amends the Export Administration Act of 1979 by creating a new subsection (g) regarding encryption products and products containing encryption or encryption capabilities.

New subsection (g)(1) places all encryption products, except those specifically designed or modified for military use, under the jurisdiction of the Secretary of Commerce.

New subsection (g)(2) states that after a one-time, 15-day technical review by the Secretary, no export license may be required for generally available encryption software and hardware products, generally available products containing encryption, generally available products with encryption capabilities, technical assistance and data used to install or maintain generally available encryption products, products containing encryption, and products with encryption capabilities, and encryption products not used for confidentiality purposes.

New subsection (g)(3) states that after a one-time, 15-day technical review by the Secretary, the Secretary shall allow the export of custom-designed encryption products and custom-designed products with encryption capabilities if those products are permitted for use by banks or if comparable products are commercially available outside

the U.S. An exception to this subsection exists if there is substantial evidence that these products will be diverted or modified for military or terrorist use or reexported without authorization.

New subsection (g)(4) creates a series of definitions relating to encryption products, products containing encryption, products containing encryption capabilities, and the export of such products for this subsection.

Subsection (b) states that encryption products that do not require an export license as of the date of enactment of this Act shall not require an export license on or after that date.

Subsection (c) states that nothing in this Act shall limit the authority of the President to prohibit the export of encryption products to terrorist nations or nations that have been determined to repeatedly support acts of international terrorism, or to impose an embargo on exports to and imports from a specific country. This subsection also allows the Secretary of Commerce to prohibit the export of specific encryption products to specific individuals or organizations in specific foreign countries, if the Secretary determines that there is substantial evidence that such products will be used for military or terrorist purposes.

Subsection (d) deems that the Export Administration Act of 1979 be in effect for the purpose of carrying out the amendment contained in this section of the bill.

Section 4. Study on the effect of encryption on law enforcement activities This section requires the Attorney General to compile information on the instances in which encryption has interfered with, impeded, or obstructed the ability of the Justice Department to enforce the criminal laws of the United States.