House Judiciary Committee Approves SAFE Act

(March 25, 1999) The House Judiciary Committee approved the SAFE Act by a unanimous voice vote on Wednesday, March 24. The bill also has to be approved by the House International Relations Committee.

HR 850, the Safety and Freedom through Encryption (SAFE) Act, would provide that people in the United States can use, and sell in interstate commerce, any kind of encryption product. The bill would also ease current export restraints.

The House Judiciary Committee debated the bill for about one half hour. Rep. Bill McCollum offered an amendment that would have enabled the government to require "immediate access plaintext capability" on exported encryption products. However, the amendment was ruled not germane. The same, or similar, amendment will likely be offered when the House International Relations Committee considers HR 850.

Rep. Bob Goodlatte (R-VA) (web site | bio), sponsor of the bill, gave an opening statement in favor of the bill at House Judiciary Committee's markup session. "The legislation is vitally needed to protect American jobs and American industry as we compete with the rest of the world. Since the time that we first began our efforts to change our export control laws, there have developed more than 650 foreign pieces of software and hardware that have strong encryption attached to it, which U.S. industry cannot compete with."

Rep. Goodlatte

Rep. Goodlatte continued that current encryption export restraints are "depriving American citizens of the kind of protection which they need to have in electronic commerce, and most importantly, it is depriving us of a major tool to fight crime. The New York Stock Exchange is protected by the use of encryption. If we don't have the strongest encryption possible, some hacker breaking into the site can cause a financial disaster."

Rep. Zoe Lofgren (D-CA) (web site | bio), the lead cosponsor of HR 850, also gave an opening statement in favor of the bill. "Our current export control policy, limiting the export of strong encryption products, compromises our ability to compete abroad. We are losing 60 to 90 billion dollars in business and hundreds of thousands of jobs to other companies in other nations that export similar products and for what purpose?"

Rep. Lofgren

Rep. Lofgren continued: "These export restrictions don't have any law enforcement effect. Narcotics traffickers, cyber-terrorists, and other criminals are not going to respect export restrictions on encryption when they donšt respect our drug laws, or any other chapter or section of our criminal code."

Rep. Lofgren also accused the administration of seeking domestic controls. "The Administration insists it doesn't want domestic restrictions on encryption. But the Administration policy, to insist on a key recovery system, would have this effect."

She continued: "As we well know in Silicon Valley, and as I think it is generally appreciated by anyone who purchases upgrades, the development of software occurs quickly and encryption is no exception to that general rule. In this industrial context, where the short product cycle that is a fact of economic life, it is just not feasible for computer software and hardware companies to develop separate products for export and for domestic use."

There was opposition to the bill. For example, Rep. Steven Rothman (D-NJ) stated that "we need to have law enforcement to have the ability to intercept communications by criminals." Rep. Howard Berman (D-CA) also expressed reservations. However, the most determined opposition came from Rep. Bill McCollum (R-FL), the Chairman of the House Judiciary Committee's Subcommittee on Crime, who delivered strongly worded statement in favor of restricting export of encryption products.

Rep. McCollum stated that "an issue that I believe 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."

He continued that "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."

Rep. McCollum also offered an amendment to Section 3 of HR 850, which pertains to export of encryption products. His amendment would have required "functions providing an immediate access to plaintext capability." The amendment did not specify the technology to be used to accomplish this.

He offered this explanation: "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."

However, the Committee never voted on the McCollum amendment. Rep. Goodlatte made a point of order that the amendment was not germane. He explained that HR 850 was refered to two committees. The House Judiciary Committee was given jurisdiction over Section 2, regarding domestic use and sale of encryption, while the International Relations Committee was given jurisdiction over Section 3, regarding export of encryption products. Rep. Goodlatte argued that the amendment went to Section 3.

Rep. Lofgren joined in the point of order. Committee Chairman Henry Hyde (R-IL) ruled that the amendment was not germane. Of course, this amendment, or a similar one, is likely to be moved again when the International Relations Committee takes up HR 850.

No other amendments were offered. The Committee held a vote by voice on HR 850. There were no negative votes. However, several opponents remained silent.