Statements and Proposed Amendment by Rep. Bill McCollum.
Re: House Judiciary Committee markup of SAFE Act, HR 850.
Date: March 24, 1999.
Source: These documents were created by Tech Law Journal by scanning and converting to HTML fax copies provided by the House Subcommittee on Crime. Copyright 1999 Tech Law Journal. All rights reserved.

This page contains three items:

• Statement by Rep. McCollum expressing opposition to HR 850.
• Proposed Amendment to HR 850. (Chairman Henry Hyde ruled the amendment not germane.)
• Statement by Rep. McCollum explaining his proposed amendment.

Opening statement of Rep. Bill McCollum on H.R. 850

Mr. Chairman, I fully support the use of robust encryption products by private citizens and by American businesses. In fact, given the rise in economic espionage over the last several years, business and industry need to use these products to protect their innovations from unscrupulous competitors and also from foreign governments who desire to steal this property for their own use. The Crime Subcommittee has considered this issue in the past and, in fact Mr. Chairman, our hearings on the problem of economic espionage led to our drafting the Economic Espionage Act of 1996, which was signed into law in October of that year.

But an issue that I believe has is being overlooked in the debate on this bill is the impact on law enforcement and national security in removing all of the export controls on encryption products, which this bill essentially does. In my view, because of this bill, sophisticated drug traffickers both domestic and those with ties to other countries, members of organized crime syndicates, international drug smugglers and terrorists throughout the world may begin to use encryption that is more robust than they presently use today.

This could significantly impact on our intelligence collection abilities. Because of this bill, it may take too long to decrypt a message -- if we can decrypt it at all. We cannot have an effective decision-making process with respect to terrorist and military threats to our national security if our intelligence community cannot decrypt information that it gathers abroad.

Just as importantly, law enforcement in this country may be hampered by this bill. Because this bill will promote greater use of stronger encryption, law enforcement may not be able to gather evidence that it can use to investigate and prosecute cases. Imagine a situation where the police with a search warrant seize the computer of a terrorist but cannot decrypt the list of people and places that he intends to strike next. Or the situation where the police seize the computer of a purveyor of child pornography but cannot decrypt the files to download the images to prosecute him. I cannot believe that any member of this Committee wishes to make it harder for law enforcement to do their jobs. And I don't believe that the public wants this either.

In my view, the bill does not strike a balance between the need of the law enforcement and intelligence communities, the software industry and the public's need for privacy. While I do not suggest that we should mandate a particular decryption or access technology which might soon become obsolete and unduly hamper the development of the industry, I do believe that we should require a capability be developed to allow law enforcement, when it has a court order, to gain timely access to the plaintext of with stored data or the data itself.

I will offer an amendment today to do this, I urge my colleagues to not support this bill without the inclusion of such a provision.

Page 12, line 13, strike "or".

Page 12, line 18, strike the period and insert "; and".

Page 12, insert the following after line 18:

(C) if the computer hardware or software or computing devices with encryption capabilities---

"(i) include features or functions providing an immediate access to plaintext capability, if there is lawful authority for such immediate access; or

"(ii) include features or functions providing an immediate decryption capability of the encrypted data, including communications, upon the receipt of decryption information by an authorized party, and such decryption can be accomplished without unauthorized disclosure.

The features or functions described in subparagraph (C)(ii) need not be enabled by the manufacturer before or at the time of export for purposes of this paragraph. Such features or functions may be enabled by the purchaser or end user.

Mr. Chairman, the amendment I offer today will modify the bill so that only encryption products that contain a capability by which law enforcement agencies can gain access to the plaintext of stored data or to the data in transit may be exported. The amendment does not mandate how this capability is developed, rather, my amendment leaves this up to the innovation of the industry, where it belongs. But the amendment will ensure that whatever encryption is developed will not effectively hamper the law enforcement community from gathering evidence and using it to prevent future crime and prosecute those who have committed crime.

To those here who believe that my amendment will hamper the growth of the U.S. industry in this product and result in the loss of market share to American companies, I point out that, recently, 33 nations agreed to relax export controls of encryption but to maintain controls on the export of strong encryption and, for the first time, control the export of certain mass market encryption software. I believe this demonstrates that the rest of the world also appreciates this problem, and will act responsibly to deal with it. I believe this also shows that there is evidence that the playing field will be level for American countries, even with some continued restriction on the export of these products.

I realize that procedural safeguards will be needed to govern the use by the law enforcement community of the "plaintext" capability. My Subcommittee will work to develop a bill to place these procedures in title 18, where they belong. But in the meantime, my amendment will prevent a further erosion of our abilities to conduct effective law enforcement.

I want to stress how vitally important I believe this issue is. It is imperative that we balance society's need for effective law enforcement with its need to protect the privacy of communications and ideas. I believe that my amendment will do this and I urge my colleagues to support it.