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Tech Law Journal |
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| News, records, and analysis of legislation, litigation, and regulation affecting the computer, internet, communications and information technology sectors | |
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Testimony of William A. Reinsch Before The House Committee on International Relations May 18, 1999 Thank you, Madam Chairman, for the opportunity to testify on the direction of the Administration's encryption policy. We have made a great deal of progress since my last testimony before this Committee on this subject. Even so, encryption remains a hotly debated issue. The Administration continues to support a balanced approach which considers privacy and commerce as well as protecting important law enforcement and national security equities. We have been consulting closely with industry and its customers to develop a policy that provides that balance in a way that also reflects the evolving realities of the market place. The Internet and other digital media are becoming increasingly important to the conduct of international business. There were 43.2 million Internet hosts worldwide last January compared to only 5.8 million in January 1995. One of the many uses of the Internet which will have a significant effect on our everyday lives is electronic commerce. According to a recent study, the value of e-commerce transactions in 1996 was $12 million. The projected value of e-commerce in 2000 is $2.16 billion. To cite one example, travel booked on Microsoft's Website has doubled every year since 1997, going from 500,000 to an estimated 2.2 million this year. Many service industries which traditionally required face-to-face interaction such as banks, financial institutions and retail merchants are now providing cyber service. Customers can now sit at their home computers and access their banking and investment accounts or buy a winter jacket with a few strokes of their keyboard. Furthermore, most businesses maintain their records and other proprietary information electronically. They now conduct many of their day-to-day communications and business transactions via the Internet and E-mail. An inevitable byproduct of this growth of electronic commerce is the need for strong encryption to provide the necessary secure infrastructure for digital communications, transactions and networks. The disturbing increase in computer crime and electronic espionage has made people and businesses wary of posting their private and company proprietary information on electronic networks if they believe the infrastructure may not be secure. A robust secure infrastructure can help allay these fears, and allow electronic commerce to continue its explosive growth. Developing a new encryption policy has been complicated because we do not want to hinder its [begin page 2] legitimate use -- particularly for electronic commerce; yet at the same time we want to protect our vital national security, foreign policy and law enforcement interests. We have concluded that the best way to accomplish this is to continue a balanced approach: to promote the development of strong encryption products that would allow lawful government access to plaintext under carefully defined circumstances; to promote the legitimate uses of strong encryption to protect confidentiality; and continue looking for additional ways to protect important law enforcement and national security interests. During the past three years, we have learned that there are many ways to assist in lawful access. There is no one-size-fits-all solution. The plans for recovery encryption products we received from more than sixty companies showed that a number of different technical approaches to recovery exist. In licensing exports of encryption products under individual licenses, we also learned that, while some products may not meet the strict technical criteria of our regulations, they are nevertheless consistent with our policy goals. Additionally, we learned that the use of strong non-recovery encryption within certain trusted industry sectors is an important component of our policy in order to protect private consumer information and allow our US high tech industry to maintain its lead in the information security market while minimizing risk to national security and law enforcement equities. Taking into account all that we have learned and reviewing international market trends and realities, in 1998 we made several changes to our encryption policy that I will summarize for you. On September 22, 1998, we published a regulation implementing our decision to allow the export, under a license exception, of unlimited strength encryption to banks and financial institutions located in countries that are members of the Financial Action Task Force or which have effective anti-money laundering laws. This regulation also allows exports, under a license exception, of encryption products that are specially designed for financial transactions. This policy recognizes the need to secure and safeguard our financial networks, and that the banking and financial communities have a history of cooperation with government authorities when information is required to combat financial and other crimes. As I mentioned earlier, we have been looking for ways to make our policy consistent with both market realities and national security and law enforcement concerns. For more than a year, the Administration has been engaged in a dialogue with U.S. industry, law enforcement, and privacy groups on how our policy might be improved to find technical solutions, in addition to key recovery, that can assist law enforcement in its efforts to combat crime. At the same time, we wanted to find ways to assure continued U.S. technology leadership, promote secure electronic commerce, and protect important privacy concerns. The purpose of this dialogue was to find cooperative solutions that could assist law enforcement while protecting national security, plus assuring continued U.S, technology leadership and promoting the privacy and security of U.S. firms and citizens in electronic commerce. We believed then and now that the best way to make progress on this issue is through a constructive, cooperative dialogue, rather than seeking legislative solutions. Through our dialogue, there has been increased understanding among the parties, and we have made progress. [begin page 3] The result of this dialogue was an update to our encryption policy which Vice President Gore unveiled last September 16. The regulations implementing the update were published on December 31. This will not end the debate over encryption controls, but we believe the regulation addresses some private sector concerns by opening large markets and further streamlining exports. The update reduced controls on exports of 56-bit products and, for certain industry sectors, on exports of products of unlimited bit length, whether or not they contain recovery features. In developing our policy we identified key sectors that can form the basis of a secure infrastructure for communicating and storing information: banks, a broad range of financial institutions, insurance companies, on-line merchants, and health facilities. Many of the updates permit the export of encryption to these end-users under a license exception. That is, after the product receives a technical review, it can be exported by manufacturers, resellers and distributors without the need for a license or other additional review. Specifically, the new policy allows for:
I would note that these provisions apply to exports of products with or without key recovery features. One of the aspects of our policy update is to permit exports of strong encryption with or without key recovery to protect electronic commerce while also minimizing the risk to national security and law enforcement. For example, in some cases we have limited our approval policy to a list of countries or a set of end users, rather than permit exports on a global basis, to help protect national security interests. We have also expanded our policy to encourage the marketing of a wider variety of "recoverable" products that may not be key recovery in a narrow sense but which may be helpful to law enforcement acting pursuant to strict legal authorities. Again, these are typically systems managed by a network or corporate administrator. We also further streamlined exports of key [begin page 4] recovery products by no longer requiring a review of foreign key recovery agents and no longer requiring companies to submit business plans. This past year, we also made progress on developing a common international approach to encryption controls through the Wassenaar Arrangement. Established in 1996 as the successor to COCOM, it is a multilateral export control arrangement among 33 countries whose purpose is to prevent destabilizing accumulations of arms and civilian items with military uses in countries or regions of concern. Wassenaar provides the basis for many of our export controls. In December, through the hard work of Ambassador David Aaron, the President's special envoy on encryption, the Wassenaar Arrangement members agreed on several changes relating to encryption controls. These changes go a long way toward increasing international security and public safety by providing countries with a stronger regulatory framework for managing the spread of robust encryption. Specific changes to multilateral encryption controls include removing multilateral controls on all encryption products at or below 56 bit and certain consumer items regardless of key length, such as entertainment TV systems, DVD products, and on cordless telephone systems designed for home or office use. Most importantly, the Wassenaar members agreed to remove encryption software from Wassenaar's General Software Note and replace it with a new cryptography note. Drafted in 1991, when banks, government and militaries were the primary users of encryption, the General Software Note allowed countries to permit the export of mass market encryption software without restriction. The GSN was created to release general purpose software used on personal computers, but it inadvertently encouraged some signatory countries to permit the unrestricted export of encryption software. It was essential to modernize the GSN and close the loophole that permitted the uncontrolled export of encryption with unlimited key length. Under the new cryptography note, mass market hardware has been added and a 64-bit key length or below has been set as an appropriate threshold. This will result in government review of the dissemination of mass market software of up to 64 bits. I want to be clear that this does not mean encryption products of more than 64 bits cannot be exported. Our own policy permits that, as does the policy of most other Wassenaar members. It does mean, however, that such exports must be reviewed by governments consistent with their national export control procedures. Export control policies without a multilateral approach have little chance of success. Agreement, by the Wassenaar members, to close the loophole for mass market encryption products is a strong indication that other countries are beginning to share our public safety and national security concerns. Contrary to what many people thought two years ago, we have found that most major encryption producing countries are interested in developing a harmonized international approach to encryption controls. [begin page 5] At the same time, we recognize that this is an evolutionary process, and we intend to continue our dialogue with industry. Our policy should continue to adapt to technology and market changes. We will review our policy again this year with a view toward making further changes. An important component of our review is input from industry, which we are receiving through our continuing dialogue. With respect to H.R.850, the Administration opposes this legislation as we did its predecessor in the last Congress. The bill proposes export liberalization far beyond what the Administration can entertain and which would be contrary to our international export control obligations. Despite some cosmetic changes the authors have made, the bill in letter and spirit would destroy the balance we have worked so hard to achieve and would jeopardize our law enforcement and national security interests. I defer to other witnesses to describe the impact of the bill on their equities, but let me describe two of its other problems First, I want to reiterate that this Administration does not seek controls or restraints on domestic manufacture or use of encryption. We continue to believe the best way to make progress on ways to assist law enforcement is through a constructive dialogue. As a result, we see no need for the statutory prohibitions contained in the bill. Second, once again we must take exception to the bill's export control provisions. In particular, the references to IEEPA as I understand them might have the effect of precluding controls under current circumstances and in any future situation where the EAA had expired, and the definition of general availability, as in the past, would preclude export controls over most software. In addition, whether intended or not, we believe the bill as drafted could inhibit the development of key recovery even as a viable commercial option for those corporations and end users that want it in order to guarantee access to their data. The Administration has repeatedly stated that it does not support mandatory key recovery, but we endorse and encourage development of voluntary key recovery systems, and, based on industry input, we see growing demand for them, especially corporate key recovery, that we do not want to cut off. The Administration does not seek encryption export control legislation, nor do we believe such legislation is needed. The current regulatory structure provides for balanced oversight of export controls and the flexibility needed so that it can continue to promote our economic, foreign policy and national security interests while adjusting to advances in technology. This is the best approach to an encryption policy that promotes secure electronic commerce, maintains U.S. lead in information technology, protects privacy, and protects public safety and national security interests. As this Committee knows better than most, public debate over encryption policy has been spirited. Many in the debate have had difficulty grasping different views or realizing that there is a middle ground. Our dialogue with industry has gone a long way toward bridging that gap and finding common ground. We will continue this policy of cooperative exchange, which is clearly the best way to pursue our policy objectives of balancing public safety, national security, and the competitive interests of US companies. |
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