Rep. Lofgren Calls for SAFE Act to be Held in Abeyance

(October 6, 1999) Rep. Zoe Lofgren said at a forum on the administration's encryption policy proposal that the SAFE Act should be held "in abeyance." Rep. Tom Davis stated that it is still scheduled for the House floor later this month. William Reinsch of the Commerce Department restated the administration's opposition to the SAFE Act.

All three spoke at a briefing hosted by the Congressional IT Working Group of the Information Technology Association of America (ITAA) on Capitol Hill on October 6. ITAA President Harris Miller moderated the event, and also gave an address on information security, authentication, and other high tech issues.

Rep. Lloyd Doggett (D-TX) introduced speakers. Rep. David Wu (D-OR) gave a short address at the beginning of the program. Rep. Tom Davis (R-VA), Rep. Zoe Lofgren (D-CA), and William Reinsch each gave longer addresses, and answered questions. The audience was comprised mostly of legislative staff, representatives from industry, and press.

William Reinsch is the Under Secretary of Commerce for Export Administration. In his address, he summarized the administration's proposal, which was first publicly announced on September 16, 1999. He reaffirmed that the administration would publish the regulations implementing the proposal by December 15. He again stated that the regulation is not contingent upon Congress passing the administration's proposed Cyberspace Electronic Security Act (CESA). He restated the administration's continuing opposition to the Security and Freedom through Encryption (SAFE) Act. And, he called for input from industry on the drafting of the regulation, especially on the definition of "retail product" and on the topic of post export reporting.

Rep. Zoe Lofgren (D-CA), the lead co-sponsor of the SAFE Act, declared victory. She stated in her remarks that "We should have a lot more happy faces in this room this morning, because, after a tremendous effort, we won." She called for holding the SAFE Act "in abeyance."

Rep. Tom Davis (R-VA) said in his opening remarks, "I want to congratulate the White House on their announcement last month that it would update its encryption export policy, and the process moving much closer to the goals of the SAFE Act." He also said that the SAFE Act is still scheduled to be brought up on the House floor.

The ITAA briefing did not clarify what Congress would do with either the CESA or the SAFE Act. William Reinsch stated that the administration wants Congress to pass CESA, but not the SAFE Act.

Rep. Zoe Lofgren

Rep. Lofgren stated that "the Republicans are in the majority in the House, and will make the decision on what bill is brought forward. But, it is my viewpoint, as one of the sponsors, that it would be smarter to hold it in abeyance. We can always move it."

She added that there are "varying degrees of knowledge about encryption in the House. Some Members are right on top of it." Others are not, and many of them are cosponsors. She concluded, "Mr. Hamre is threatening veto. And I just wonder why should we have this fight."

Rep. Davis was more reserved in his comments. He did not elaborate on his reaction to the administration's proposal.

Nor did he express an opinion on whether the SAFE Act should be passed. However, he repeatedly stated that the SAFE Act was still scheduled to be brought up on the floor. In his address he stated it "is still scheduled for the House floor." In response to a question, he reaffirmed, "It is still scheduled for later this month."

Similarly, last week, the sponsor of the SAFE Act, Rep. Bob Goodlatte (R-VA), stated that the SAFE Act "is alive and well." Rep. Goodlatte spoke at a panel discussion at which several administration officials discussed their proposal.

It is possible that there will be a split of opinion among the many cosponsors of the SAFE Act on how to proceed.

The SAFE Act does not embody a single concept. Rather, its provisions fall into two broad categories. On the one hand, there are provisions that would liberalize the existing export restraints for encryption products. On the other hand, there are provisions that protect the rights of individual Americans to use and sell encryption products, and to be free from government mandated or compelled key escrow. Support for the SAFE Act does not necessarily imply equal levels of support for all provisions in the bill.

The administration's proposal first announced on September 16, and discussed by William Reinsch at the ITAA briefing, deals mostly with the export side of the SAFE Act.

And of course, many Members of Congress, such as Rep. Curt Weldon (R-PA), remain opposed to both aspects of the SAFE Act.

Reinsch had this to say about the SAFE Act. "The administration opposes the SAFE Act. The SAFE Act has a lot of things in it. And I don't think that we need to have a debate about it, because we have done, I think, the biggest thing that I think it was intended to do. But, there are a lot of other things in the SAFE Act that we think would not be helpful or constructive. And, we oppose it. Some of them have nothing to do with export controls. Some of them do."

Reinsch also argued against enacting legislation pertaining to export controls. He stated that "it is sometimes better to leave what we do to the executive branch, on a day to day basis, and if we royally mess it up, then you come in and redirect us from policy point of view. I don't think that the SAFE Act would be a constructive or helpful thing to do. And in that sense, I agree with Dr. Hamre."

In addition to discussing the export provisions of the administration's proposal, Reinsch also pleaded for the other two components of the administration's proposal. First, the administration wants to "try to develop more attention and more resources to developing secure systems, first, in the government, and then as a model, we hope, for the private sector."

Second, the administration wants "more tools for law enforcement." He elaborated that this means two things. "One, to set up formally, authorize, and put money into the NET Center, that will help not only the FBI, but also state and local law enforcement develop the tools and expertise they need to deal more effectively with cyber crimes."

"The second thing it does is tries to apply existing legal practice, the existing legal equilibrium if you will, with respect to wiretaps, and other police authorities in the surveillance area to a new technology. It is not intended to raise or lower the standard to give the FBI things it does not now have, or to take away from it things that do now have. We are simply trying to fit a new technology into an existing pattern. That will, I suspect, be controversial. It already has been controversial in the past, and will continue to be."

Rep. Lofgren discussed the administration's proposal. "I am confident from all that I have heard from the administration that this is for real." She added, "it is hard to win sometimes after you have struggled for so long. But clearly, this is a major step. And, it would not have been taken if it was not meant to be real. And I have heard that from everyone I have talked to."

She also made this comment. "In terms of the bill. Is it satisfactory? I think it is."