Opening Statement by Rep. Porter Goss (R-FL). Re: House Intelligence Committee hearing on HR 850, SAFE Act. Date: June 9, 1999. Source: House Select Committee on Intelligence. This document was created by scanning a fax copy, and converting to HTML.

Opening Statement' of Chairman Porter J. Goss
Encryption Legislation Hearing
June 9, 1999

As noted, we will be discussing U.S. encryption policy and one legislative approach -- H.R. 850, the "Safety and Freedom Through Encryption Act" -- touted as "the answer" to a perceived problem for the encryption industry. The bill strikes me, however, as creating just as many problems as it seeks to solve.

Now, I have no doubt that passage of H.R. 850 in its present form, will benefit the computer industry. It will after all completely deregulate the exportation of encryption products from the United States. In most cases deregulation is the correct answer. Industry sees in H.R. 850 greater control of the global marketplace by American encryption software, which already commands an enormous share of the market, despite what industry considers, to be restrictive export control regulations. Increased market share for U.S. industry is a societal good that should be supported but not to the exclusion of other equally important societal needs. Industry argues that America stands at the forefront and on the leading edge of the software industry. And, they do. They assert that H.R. 850 is needed to maintain that superiority.

Let me plainly and unambiguously say that I. have no fundamental disagreement with the objectives and the desires of the industry to improve their share of the market and increase their opportunities internationally. The ability of the U.S. industry to compete fairly on the global market is truly important to me.

• Who doesn't want U.S. business to flourish and outpace their foreign competitors?
• Who wouldn't want the U.S. to maintain its pre-eminent place in the global encryption market?
• Who could possibly be opposed to allowing the economic juggernaut that is the Internet to thrive?

The U.S. encryption industry is the market leader and I intend to do what I can to help them maintain that position. But, making money and dominating the market is only part of this puzzle.

Central to the responsibilities our Founders assigned, in their genius, to the federal government is the obligation to guarantee the nation's defenses against enemies, both foreign and domestic. H.R. 850, as reported by the Judiciary Committee, would -- in my view, a view that is shared by the highest levels of the Department of Defense, the Department of Justice, the Federal Bureau of Investigation, and the National Security Agency -- have grave consequences, would do enormous harm to our nation's security and the public's safety, and would abdicate these obligations to the forces and whims of the marketplace.

National security and public safety cannot be ceded to the ups and downs of the NASDAQ.

Saying there is no national security harm that would result from enactment of Mr. Goodlatte's bill doesn't make it true.

It can't be denied that there are beneficial aspects to widespread use of strong encryption, but any benefit that would result from enactment of H.R. 850 in securing the networks and data from unwanted and unlawful interception, and in protecting consumers from on-line criminal activity would be completely lost given the devastating effects the bill would have on the most fundamental aspects of national security, public safety, and intelligence operations.

National security and public safety; counterterrorism and counternarcotics; counterespionage and counterproliferation; force protection and support to national policymakers, are just a few of the competing interests in this debate. These topics highlight the other and just as equally compelling aspect of this confounding and complex issue as increase market share and larger profits.

I hasten to add that just because we wish to take national security and public safety into consideration doesn't mean, however, that we will adopt the "Blanket 'Big Brother' Act of 1999," either.

Mandatory key escrow is a non-starter, a dead letter. Despite what the Business Software Alliance and Americans for Computer Privacy assert, no one that I have spoken with in the Administration on this issue, recently, espouses this approach.

Any access to plaintext capability granted to the government will be overseen and controlled by the independent arbiters of civil liberties -- the judicial branch. It is this arm of our tripartite form of government that will and should, of course, play a central role -- in protecting one's privacy interests. The independent judiciary must be utilized especially at the front-end of any system giving law enforcement the authority to access the plaintext of encrypted information, or to seize and utilize one's decryption information in the pursuit of justice. Everyone fully expects there to be some form of court order process before law enforcement will be authorized to access plaintext or decryption information.

Yet, most proponents of the SAFE Act speak of the need to protect our privacy from the "abuses" of government, particularly law enforcement. They assert that any access capability to the plaintext of communications or stored data will leave law abiding Americans vulnerable to government prying and abusive intrusion into our private lives. In making these claims, the supporters of the SAFE Act neglect the judiciary's role as the bulwark of our freedoms, the guarantor of our liberties. The role of the judiciary in our governmental scheme cannot be ignored, nor understated, however. I have complete faith and confidence that the judges of the United States will ensure, as they have since the founding of the Republic and the ratification of the Bill of Rights, that they are personally satisfied that the requirements of constitutional principles, and the standards of any applicable statutes, have been met, before authorizing recovery of encrypted information for law enforcement purposes.

I would note that the task before this Committee is to educate the Membership of the House and the public at large on the compelling and legitimate interests presented in this debate over encryption policy. I am also aware that this task includes an effort to persuade our colleagues that H.R. 850, could, if enacted without significant modification, endanger our ability in the very near future to conduct foreign policy; to defend our deployed troops; to defend our government installations throughout the world from terrorist attack; and to investigate, prosecute, and convict the most dangerous criminals, including spies and traitors, drug kingpins and child pornographers.

This task will not be easy. At last count there were 257 cosponsors of H.R. 850. This task, though seemingly quixotic to some, and doubtlessly daunting to others, is well worth our efforts because the issues and consequences are so terribly important and serious.

I thank you all for attending and participating in this hearing.

I will yield to Mr. Dixon for any opening remarks he may have.