---------- Forwarded message ---------- Date: Wed, 23 Jul 1997 00:43:48 -0700 (PDT) From: Declan McCullagh <declan@well.com> To: fight-censorship-announce@vorlon.mit.edu Subject: House crypto-vote echoes classified briefing (plus: COWS!) Another House panel approved the SAFE encryption bill Tuesday afternoon after a tense debate, capped by the surprise testimony of a phalanx of law enforcement lobbyists who appeared at what was scheduled to be a straightforward vote. The International Relations committee rejected 22-13 an amendment that would gut the generally pro-crypto measure by returning complete control over crypto-exports to the president, then passed the SAFE bill unchanged. In the process, the committee replayed an off-the-record debate that took place on June 26 at a classified briefing in the Capitol. The 64-page transcript of last month's hearing, now redacted and declassified, reveals the same tension between law enforcement and national security lobbyists and two SAFE backers: Rep. Bob Goodlatte (R-Va) and Rep. Lofgren (D-Ca). Much of the talk at the classified briefing centered around how to coerce Americans -- and more importantly, high tech firms -- to adopt and use a "key recovery infrastructure" that would allow the government to have ready access to the secret keys used for encryption and decryption. Bill Reinsch, Commerce Department undersecretary, said, "The question is, how do we get there? We were trying to get there through export controls. That may or may not be the best way. Arguably import control might be the better way, but nobody wants to do import controls, and they are off the map." Rep. Howard Berman (D-Ca) suggested banning unapproved encryption altogether: "Why don't you treat it like heroin or something?" Replied FBI Director Louis Freeh: "Within the administration there have been long and not harmonious discussions about what approach is more requisite. The law enforcement components perhaps have more immediate view, and that debate is pretty much over within the administration..." Then Reinsch complained that Microsoft wasn't playing ball with the administration: "They appear not to believe that key recovery is the way of the future." (I don't make this stuff up, folks.) He wasn't the only one to sound an Orwellian note. The NSA's Crowell said, "There is a need for an instrument, just like the FCC has. When you get a garage door opener, it is licensed so you will not turn on your neighbor's TV with the garage door opener. There is a need for a licensing process xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx." The rest of his statement is gone from the transcript, crossed out by the thick, eager pens of government censors. This is why reading redacted documents is always a nerve-wracking experience: you feel like you're being teased with not enough information. That also happened this afternoon. I've never seen lobbyists as nervous as they were today before the International Relations committee met for the SAFE vote. Everyone expected the chair of the committee, Rep. Benjamin Gilman (R-NY), to introduce amendments that would tilt the bill to favor national security, but how would they be phrased? Nobody knew. Why was the hearing postponed three times -- was it official House business, or last-minute deal-cutting? And why was Clipper Chip proponent James Kallstrom, assistant director of the FBI, sitting in the front row -- would he testify as an unscheduled administration expert? In the end, of course law enforcement and national security advocates launched a full-court press -- and lost. Gilman, the committee chair, introduced an amendment that would gut the generally pro-crypto SAFE bill by returning complete control over crypto-exports to the president. Industry groups and civil libertarians denounced it (correctly) as nullifying SAFE. It would be just as bad, and arguably worse, than Congress not passing any bill in the first place. Worse yet, they said, Gilman cloaked his amendment in "national security" language that would appeal to members of his committee who are used to approving such measures. Then there were the cows. Again, I'm not making this up. Apparently if a cow is out of the barn, it no longer makes sense to shut the barn door to prevent any more cows from leaving. (I can't attest to this personally. Perhaps cows have an inherent sense of occasion.) "Do we open the doors to let all the cows out?" asked one committee member. The FBI's Kallstrom rebutted: "There are many, many still left inside the barn." No, said Lofgren. "The cows are tromping all over America. Cows can replicate. They're being born all over the world. There's plenty of beef available!" SAFE now moves to three more committees simultaneously: Commerce, National Security, and Intelligence, which have until early September to vote on the bill. Since the Clinton administration lobbyists met with a bitter defeat in the International Relations committee, expect them to use the August recess to redouble their lobbying attempts. They may concentrate hardest on House Rules committee members, who will be tasked with reconciling any amendments to SAFE. Yet even after today's vote, the overall encryption outlook in Congress remains dismal. SAFE's companion bill in the Senate, ProCODE, is dead and gutted. It's been replaced with the McCain-Kerrey bill, which is pro-key escrow legislation that the administration supports. And, most importantly, the president has said he'll veto any pro-crypto bill that comes across his desk... --- Gilman's amendment offered today: NATIONAL SECURITY EXCEPTION -- Notwithstanding any other provision of this subsection, the President shall have the authority to regulate, including through the approval or denial of licenses or other means deemed appropriate, the export or reexport of encryption items, including hardware and software with encryption capabilities, if the President find that the export of such items would adversely affect the national security. National security shall include, but not be limited to, the ability of law enforcement agencies, including Federal, State, and local agencies, to combat espionage, terrorism, illicit drugs, kidnapping, or other criminal acts, or otherwise would involve the potential for loss of human life. --- Excerpt from Secretary of Defense William Cohen's letter to Congress, dated July 21, 1997: It is also important to note that the Department of Defense relies on the Federal Bureau of Investigation for the apprehension and prosecution of spies. Sadly, there have been over 60 espionage convictions of federal employees over the last decade. While these individuals represent a tiny minority of government employees, the impact of espionage activities on our nation's security can be enormous. As the recent arrests of Nicholson, Pitts, and Kim clearly indicate, espionage remains a very serious problem. Any policies that detract from the FBI's ability to perform its vital counterintelligence function, including the ability to perform wiretaps, inevitably detract from the security of the Department of Defense and the nation... Encryption legislation must also address the nation's domestic information security needs. Today, approximately 95% of DoD communications rely on public networks; other parts of government, and industry, are even more dependent on the trustworthiness of such networks. Clearly, we must ensure that encryption legislation addresses these needs. An approach such as the one contained in S.909 can go a long way toward balancing the need for strong encryption with the need to preserve national security and public safety. I hope that you will work with the Administration to enact legislation that addresses these national security concerns as well as the rights of the American people... --- More info: http://pathfinder.com/netly/opinion/0,1042,1022,00.html http://pathfinder.com/netly/editorial/0,1012,931,00.html http://www.jya.com/declan3.txt http://www.jya.com/declan2.txt http://www.jya.com/declan1.txt http://www.well.com/~declan/fc/ ###