House Telecom Subcommittee Approves SAFE Act

(June 17, 1999) The House Telecommunications Subcommittee approved the SAFE Act by a voice vote on Wednesday morning, June 16, with amendments. The version adopted extends the export review period from 15 to 30 days, expands the grounds for denying export authorization, creates an encryption laboratory, and transfers certain responsibilities from the Secretary of Commerce to the NTIA. However, the Subcommittee rejected a backdoor attempt to require key escrow.

The House Commerce Committee's Subcommittee on Telecommunications, Trade and Consumer Protection approved an Amendment in the Nature of a Substitute to HR 850, the Security and Freedom through Encryption  Act. The amendment was offered by Rep. Billy Tauzin (R-LA), the Chairman of the Subcommittee. It contains several changes from the original bill. Also, the subcommittee approved two further amendments to the Tauzin version.

The Tauzin substitute amendment preserved most of the language of the original version of the bill, HR 850 IH.

Rep. Mike Oxley (R-OH), Rep. Clifford Stearns (R-FL), and Rep. Heather Wilson (R-NM) fought to place further restrictions encryption. Rep. Ed Markey (D-MA), Rick Boucher (D-VA), and Anna Eshoo (D-CA) led the opposition to adding further restrictions."

Rep. Mike Oxley (R-OH) is one of the leading opponents of encryption in the Congress. He stated at the outset of the hearing that "this legislation is not necessary." He added that it "represents a real threat to national security and public safety." However, he lacked the votes on the subcommittee to defeat the bill, so he set about to weaken it.

The changes made by the Telecommunications Subcommittee have limited significance. The Commerce Committee is only one of many committees with jurisdiction over the bill. "It is important to remember that they have a sequential referral," said a spokesman for Rep. Bob Goodlatte (R-VA) after the markup. Essentially, "they are offering a list of suggestions to the Rules Committee." Rep. Goodlatte is the sponsor of HR 850, and its leading advocate. "He is pleased that the process is continuing," said his spokesman.

Oxley Amendment Adds as additional grounds for denying encryption export authorization: " ... (iv)(I) harmful to United States national security, including United States capabilities in fighting drug trafficking, terrorism, or espionage, (II) used in illegal activities involving the sexual exploitation, abuse, or sexually explicit conduct with minors (including activities in violation of chapter 110 of title 18, United States Code, and section 2423 of such title), or (III) used in illegal activities involving organized crime ... "

The Telecom Subcommittee approved an amendment offered by Rep. Mike Oxley that expands the grounds for denying export approvals. HR 850, as introduced by Rep. Goodlatte, and the Amendment in the Nature of a Substitute, as offered by Rep. Tauzin, both contain the same language.

Basically, both bills provide that after the 15 day review (expanded to 30 days under the Wilson amendment), the Secretary of Commerce must authorize the export of an encryption product that is commercial available outside of the United States, unless there is substantial evidence that it will be used for military purposes or international terrorism.

The Oxley Amendment adds several more grounds for denying the export authorization, including activities involving drug trafficking, espionage, sexual exploitation, sexual abuse, and child pornography. It also provides that use by "organized crime" is a grounds for denial.

Rep. Ed Markey (D-MA) spoke against the amendment. He said that the "organized crime" language is too broad: "I don't think that there is anything that could withstand the scrutiny of not being used by organized crime." He pointed out that cars are used by criminals in getaways, but the United States does not restrict automobile export.

Rep. Oxley, Rep. Wilson, and Rep. Gene Green (D-TX) all spoke in support of the amendment. Rep. Markey remarked that if the Commerce Department has "substantial evidence" about "organized crime", it should not be denying export authorizations; it should be turning that "substantial evidence" over to the Justice Department so that the criminals can be prosecuted.

Rep. Markey argued that the "final two lines" of the amendment should be deleted. This would have left in drug trafficking, espionage, sexual exploitation, sexual abuse, child pornography, but excluded the broad reference to crime.

Rep. Tauzin called for a voice vote, and the amendment was adopted. However, Rep. Markey requested a roll call. Only four members voted against the Oxley amendment: Rep. Markey, Rep. Rick Boucher, Rep. Bobby Rush (D-IL), and Rep. Al Wynn (D-MD).

Rep. Wynn represents a majority black district in the suburbs of Washington DC. His district includes "a strong contingent of high-tech firms," a member of his staff told Tech Law Journal after the markup. "Info tech has been a source of business, where there is not a high front end investment."

"One of the things about info tech is that you can start small," said Rep. Wynn's assistant. "So, there are a lot of women and minority owned firms." Also, it "provides cutting edge training." Consequently, Rep. Wynn is supportive of high tech.

The Subcommittee also approved an amendment offered by Rep. Heather Wilson (R-NM). Her amendment lengthens the Secretary of Commerce's export review period from 15 to 30 days.

Rep. Wilson has represented the Albuquerque, New Mexico, area since winning a special election last year to replace Steve Schiff, who died in office. She is a former Air Force officer, and a current member of the House Intelligence Committee, a hotbed of encryption opponents.

Rep. Wilson

"Two weeks is not enough time for a matter of this importance," said Rep. Wilson. Rep. Anna Eshoo asked Rep. Wilson what was the basis for the the extension, and whether there were any studies. Rep. Wilson said that there had been no study, and the Department of Commerce had not asked for the extension; however, the National Security Agency did ask.

The amendment was approved on a voice vote. Rep. Eshoo voted against the amendment.

Afterwards, Rep. Goodlatte's spokesman said the "30 working days is more than we would like to see."

Rep. Clifford Stearns (R-FL) offered two amendments, both of which were rejected. The first was thinly veiled attempt to insert a clause that would have the effect of causing many people to acquire encryption products with key escrow, out of fear of criminal prosecution. Rep. Stearns described it as a measure designed to aid in the prosecution of "drug traffickers."

The amendment provides that anyone who is subpoenaed to provide encrypted information must also provide the information in plaintext, or be subject to criminal prosecution. The amendment covers not only the person committing the underlying crime under investigation, but anyone in possession of the suspects encrypted data. Rep. Boucher, Rep. Markey, and Rep. Eshoo all harshly condemned the amendment.

This amendment "would force the third party to have the ability to decrypt," said Rep. Eshoo. "Would America Online become responsible for decrypting someone's private e-mail?" Rep. Stearns said that America Online could be affected, but added that it would be useful in fighting "drug lords."

Rep. Boucher called the amendment a "backdoor way of accomplishing key recovery." Rep. Boucher said that America Online, banks that maintain safety deposit boxes, and any form of trustee, would have to insist on backdoor access. Rep. Stearns replied that third parties who keep other people's data have such a duty.

Rep. Gene Green (D-TX) and Rep. Tauzin also spoke in opposition to this amendment. It failed on voice vote.

Rep. Stearns' second amendment would have prevented most exports of encryption products to China. He cited the revelations of the Cox Report on Chinese espionage and militarism as proof that the ban was needed.

Rep. Green and Rep. James Rogan (R-CA) spoke against it. Rep. Chris Cox was present during the debate, but did not comment directly on the amendment. It failed on a voice vote.