Sen. McCain Announces Plans to Introduce an Encryption Bill

(April 1, 1999) Sen. John McCain (R-AZ) announced in a press release dated March 31, 1999 that he would introduce a bill in the Senate pertaining to encryption when the Senate returns from the spring recess. The release states that the bill would "allow for exportation of encryption of key lengths of up to 64 bits."

Supporters of encryption legislation called it a step in the right direction for Sen. John McCain (R-AZ), who in the past has been a major obstacle to passage of encryption legislation. Sen. McCain is Chairman of the Senate Commerce Committee, which has jurisdiction over encryption bills.

Sen. McCain's press release states that the bill would "Allow for exportation of encryption of key lengths of up to 64 bits" and "Permit the exportation of non-defense encryption (above 64 bits) to responsible entities and governments of North Atlantic Treaty Organization (NATO), Association of Southeast Asian Nations (ASEAN) and Organization for Economic Cooperation and Development (OECD)." (Parentheses in original.) The press release does not elaborate on the meaning of the term "responsible entities."

The press release also states that the bill would "Direct the National Institute for Science and Technology (NIST) complete the establishment of an advanced encryption standard by January 1, 2002." The press release also states that the bill would create "an Encryption Export Advisory Board to review applications for exemption of encryption of over 64 bits and give recommendations to the Secretary of Commerce."

While the McCain press release addresses encryption export, it is silent regarding the encryption rights of Americans.

Also, the McCain press release states that Senators Conrad Burns (R-MT), Patrick Leahy (D-VT), and Ron Wyden (D-OR) will be cosponsors of the McCain bill. However, another key player in the debate, Sen. John Ashcroft (R-MO), is not listed.

Sen. Conrad Burns (R-MT) sponsored the pro-encryption Pro CODE bill, S 377, in the 105th Congress, and will now cosponsor the McCain bill. Ben O'Connell, of Sen. Burns' staff, describes this as a positive development. Sen. McCain "has come towards our point of thinking on this issue."

"He is Chairman of the Committee. It gives him a lot of influence as to what comes out," added O'Connell. "There is nothing that says that we cannot give the bill some tweaks."

Rep. Bob Goodlatte (R-VA) (web site | bio ) and Rep. Zoe Lofgren (D-CA) (web site | bio ) introduced the Security and Freedom through Encryption (SAFE) Act, HR 850, in the House on February 25. That bill was approved by the House Judiciary Committee on March 24, 1999. The SAFE Act provides that people in the United States can use any kind of encryption. It also provides that any person in the U.S. may sell in interstate commerce any encryption product. Moreover, the government cannot mandate any kind of key escrow.

However, the bulk of the SAFE Act deals with the export of encryption products. It provides, among other things, that after a one-time, 15-day technical review by the Secretary of Commerce, no export license may be required for generally available encryption software and hardware products.

Ed Gillespie, Executive Director of Americans for Computer Privacy (ACP) responded to Sen. McCain's announcement. He stated in a press release that Sen. McCain and the cosponsors "... are to be congratulated for the PROTECT Act, which recognizes the fact that widespread deployment of strong American-made encryption is in the best interests of this nation."

ACP is a coalition of companies of high tech companies that produce encryption products, companies that use encryption products, and associations. It is a leading advocate of legislation that would guarantee the right of Americans to use encryption, and lift export restraints. Gillespie continued: "ACP believes the legislation is an important move in the right direction and a great start to the Senate process. However, it must be noted that the bill doesn't go as far or as fast as the Security and Freedom through Encryption (SAFE) Act, which now has 248 co-sponsors in the U.S. House of Representatives, and was favorably reported by the House Judiciary Committee last week. We look forward to working with Senator McCain and his colleagues as we move toward adoption of encryption policy that makes sense for America in the 21st Century."

Robert Holleyman, President of the Business Software Alliance (BSA) also responded. "The BSA is very pleased to learn that Senate Commerce Committee Chairman John McCain will introduce helpful legislation to address the policy governing the export of strong American made encryption products. The announcement today indicates that the U.S. Senate has formally entered the debate on encryption export policy and intends to be an active and full participant on this important public policy initiative."

Holleyman continued: "It is becoming increasingly clear that the number of policy-makers who support modernizing export control policy for encryption products is growing, not shrinking. In both the Senate and the House of Representatives there is an embarrassment of riches in terms of the sheer number of Members of Congress who have spoken-out in support of allowing the export of strong, American-made encryption products. Co-sponsors of this legislation -- Senators Leahy, Burns and Wyden -- have been strong supporters of relaxing encryption export controls in the past. We are encouraged that these prominent members of the U.S. Senate have again agreed to champion this issue."

"As the process moves forward, the BSA looks forward to working with the Senate to craft a sensible export policy that will provide consumers with the strong encryption they demand and protect the privacy and security of all computer users."

"We are very strong advocates of the SAFE bill. But, the McCain bill is a very positive step forward." said Anne Gavin, of the BSA. "There seems to be some movement."