Administration Addresses Encryption Reform Proposal

(September 29, 1999) Four representatives of the Clinton administration discussed the September 16 proposals to liberalize encryption export restraints, and other matters, at a luncheon forum in Washington DC hosted by the Internet Caucus. Administration representatives promised to consult with industry regarding new regulations, to be drafted by December 15. Meanwhile, Rep. Goodlatte said that the SAFE Act is "alive and well."

The panel included four representatives of the Clinton administration:

• William Reinsch, Under Secretary for Export Administration, U.S. Department of Commerce.
• James Robinson, Assistant Attorney General, Criminal Division, U.S. Department of Justice
• Linton Wells, Deputy Defense Secretary for Command, Control, Communications, and Intelligence
• Peter Swire, Chief Counselor for Privacy, Executive Office of the President, OMB..

Two Members of Congress participated:

• Rep. Bob Goodlatte (R-VA).
• Rep. Curt Weldon (R-PA).

The panel was moderated by John Schwartz of the Washington Post.

On September 16 Commerce Secretary William Daley, Deputy Secretary of Defense John Hamre, Attorney General Janet Reno, and Peter Swire of the Executive Office of the President announced a major change in the administration's encryption policy. They spoke on the issue, and released "fact sheets" and a draft bill. However, much of the policy will be stated in regulations which have not been drafted.

Rep. Bob Goodlatte

Rep. Bob Goodlatte (R-VA), the sponsor of HR 850, the Security and Freedom through Encryption (SAFE) Act, stated at the September 28 luncheon that "the SAFE Act is that it is alive and well."

"Whether and when it goes to the floor, I think, depends in large part on what we are short on at this point in time, and why this panel discussion is so timely, and that is the details. The presentation made by the administration, I think, is long on promise in addressing all of the different problems that they mention and that the SAFE Act is intended to address, but it is short on detail," said Rep. Goodlatte.

Rep. Curt Weldon (R-PA), who has been one of the staunchest supporters of the administration's prior policy, also attended the event. He harshly criticized the administration for reversing its course, and for not having the CIA and NSA publicly stating their positions.

The administration officials discussed some of the details of the proposal, and refuted claims that the proposal is a scam. William Reinsch stated:

"What has happened since September 16 though is that, unfortunately, the fine intelligent thoughtful questions that would come from a group like the Internet Caucus, have not been predominant. And what has been predominant is the comments that have come from the paranoid caucus ..."

Reinsch had until recently been testifying at Congressional hearings against the SAFE Act, and in support of the administration's policy regarding encryption export restraints which were reversed on September 16.

Reinsch continued that "they are all looking for the fine print. They are looking for the catch in what we have announced. And my final statement is simply, there isn't any catch. You know. It is what it is. And this isn't a scam, or some kind of game.

"There isn't any catch." He concluded: "There isn't any hidden agenda."

Rep. Bob Goodlatte asked Reinsch a number of questions. He asked how long the review period would be for the one time technical review. Reinsch stated that "I think thirty days is a reasonable time period."

Rep. Goodlatte asked if the "the export regulations be changed or delayed from your December 15 deadline, if the Congress has not passed the Cyberspace Electronic Security Act by that date." Reinsch responded that "that is a firm no later than date as far as I am concerned. And the announcement that we made is very clear that there are no contingencies or conditions attached to it."

Reinsch also tried to reassure the audience, which contained many representatives of high tech companies and their trade groups, that the Department of Commence would protect proprietary information collected during the review process.

However, Reinsch and other panel members were not forthcoming on other questions regarding the details of the technical review process.

Reinsch was also asked about the Bernstein case. The U.S. Court of Appeals for the Ninth Circuit issued its opinion on May 6, 1999 in which it held that U.S. encryption export regulations violate First Amendment free speech rights. Prof. Bernstein had sought to export encryption product source code.

"We have not changed our policy with respect to the export of source code," said Reinsch. He added that the court ruled "erroneously".