Attached below is a Reuters article on how the House Commerce committee is about to approve an amendment banning the distribution of encryption products without a government backdoor. The Commerce committee would then join the Intelligence committee, which approved a similar measure last week. I generally agree with Aaron's (who wrote the article) take on the situation. Late this evening some lobbyists called me to promise some good news tomorrow, but momentum is clearly against them. After the full committee vote next Thursday, some sort of compromise legislation will likely go to the House floor -- at least if the leadership lets it. It's unclear whether that would happen this year or not. So much for the millions of dollars industry wasted on crypto-lobbying. The lobbyists (and high-tech executives) should have realized long ago that legislatures often are enemies of civil liberties. Civil liberties are anti-majoritarian, and usually unpopular, by their very nature. Look at what happened with the CDA -- it took the Supreme Court to undo Congress' bad work. Also, I recently spoke with Rep. Michael Oxley (R-Ohio), a former FBI agent, who's on the House Commerce committee that will consider SAFE next week. A version of his amendment that will be introduced is at: http://www.cdt.org/crypto/legis_105/SAFE/Oxley_Manton.html I wrote about crypto-compromises recently at: http://cgi.pathfinder.com/netly/editorial/0,1012,1412,00.html Attached is an excerpt from my conversation with Oxley... -Declan ***************** IS THERE A COMPROMISE IN THE WORKS? I can't give you any definitive answer on that. They have to recognize that our committee is prepared to accept my amendment. The Intelligence Committee has already passed an amendment unanimously. The National Security Committee passed an amendment 45-1. It's going to be the amendment in some form... The briefing that law enforcement and the FBI and DEA and the NSA and the CIA -- that was a pretty sobering briefing that the members got. At least it was in our committee. It brought up a lot of issues that hadn't been considered before... If it's a fight and it's up or down on my amendment, my amendment passes. Goodlatte told me that. He knew I had the votes. [Rep Goodlatte is the chief sponsor of the original SAFE bill] WOULD YOU TAKE SEN. KYL'S LEAD AND MOVE TO BAN NOT JUST THE DISTRIBUTION, BUT THE //USE// OF ENCRYPTION WITHOUT A KEY RECOVERY FEATURE? I've had some discussions with Kyl and we're working with him to find out what the best approach is. WOULD YOU INTRODUCE THE INTELLIGENCE DRAFT? That's still an option but we haven't made that determination yet. [The Intelligence committee bill is a slightly more extreme proposal.] I think the overwhelming sentiment in the House is towards protecting national security and providing law enforcement with the tools they need to combat this activity. This is a very complicated technological issue. My sense is that Bob Goodlatte and the folks who support that bill want other members to say we have to give up: we can't protect people from terrorists and organized crime since the technology has run. HAS YOUR EXPERIENCE AS AN FBI AGENT SENSITIZED YOU TO LOUIS FREEH'S ARGUMENTS? Oh clearly, sure. I used to tap phones for a living. That was old technology, but the concept is clearly the same. ----- Date: Thu, 18 Sep 1997 18:39:35 -0400 From: Aaron Pressman <aaron.pressman@reuters.com> To: declan@well.com Subject: reuters encryption story U.S. encryption bill inspires little give and take By Aaron Pressman WASHINGTON, Sept 18 (Reuter) - Like many who have tried to broach a compromise on the knotty issue of regulating computer encoding technology, members of the House Commerce Committee are finding their negotiation efforts futile, people involved said on Thursday. With talks deadlocked, the committee is likely to vote next week on virtually the same amendments that would have been considered previously, and most participants said a restrictive proposal favored by law-enforcement agencies would carry the day. An essential means of safeguarding communications and electronic commerce over the Internet, encryption products scramble information and render it unreadable without a password or software "key." Barring a surprise change in momentum, the committee will likely approve an amendment from Rep. Mike Oxley, Republican of Ohio, to impose restrictions for the first time on domestic sales and distribution of encryption products, staffers and lobbyists said. "He has the votes," said an industry lobbyist opposed to Oxley's amendment. "To call this negotiation is kind of a joke." Oxley's staff also conceded that talks were not proving fruitful. "We're negotiating with the other side, but I don't think there's a lot of middle ground here," Oxley spokeswoman Peggy Peterson said. One week ago, the committee postponed a vote on a bill by Virginia Republican Bob Goodlatte that was originally intended to relax strict U.S. export limits on encryption and prohibit mandatory backdoor access for the government. The Republican leadership gave the committee two weeks to find an approach that would be acceptable to law enforcement and national security agencies on one side, and software companies, civil libertarians and Internet users on the other. Rep. Rick White, Republican of Washington, and Rep. Ed Markey, Democrat of Massachusetts, had prepared an amendment requiring a study on backdoor access technologies but their proposal has not attracted much support from the FBI or the leadership of the committee. "Language can be changed but at the end of the day, it doesn't get law enforcement on board," one staffer said. FBI Director Louis Freeh has repeatedly told lawmakers to adopt restrictions forcing encryption manufacturers to include features allowing law enforcers to decode any message covertly. Freeh said without such a law, criminals and terrorists would increasingly use encryption to thwart FBI surveillance. Software companies counter that adding such features may be impossible and would reduce the level of security provided to legitimate citizens and businesses seeking to safeguard their communications. And civil libertarians said the FBI proposal would permit an Orwellian intrusion of government snooping into everyone's private affairs. Domestic restrictions like those in the Oxley amendment were added to the original bill by the Select Committee on Intelligence in a classified session last week. A few days earlier, the National Security Committee gutted the export relaxation provisions drafted by Goodlatte and replaced them with export limits tighter than current rules. Thursday, 18 September 1997 18:06:50 RTRS [nN18296706]