SAFE vote and cutting crypto-deals, report from House Judiciary

17 Dec 2003

      ---------- Forwarded message ----------
Date: Wed, 14 May 1997 21:11:35 -0700 (PDT)
From: Declan McCullagh <declan@well.com>
To: fight-censorship-announce@vorlon.mit.edu
Subject: SAFE vote and cutting crypto-deals, report from House Judiciary

You get a sense of the inevitable when you're handed a
stack of press releases congratulating a committee for
passing a bill -- an hour before the vote happens.

That's what happened this afternoon when the House
Judiciary committee unanimously approved SAFE, a bill
that generally loosens export controls on crypto.

Now, today's vote doesn't mean that the bill will move
to the floor unmolested, and it doesn't mean that all
its problems have been fixed. The Judiciary Committee
doesn't have jurisdiction over export relaxations, and
the bill's opponents pledged to fight when the measure
moves to the International Relations committee. Then
there's that portion about using crypto in a crime:
it's been modified, cleaned up, but not removed.

High and low points of today's hearing. I'll keep these
short since I've got to get to sleep:

* In another blow to the White House, the New Democrat
  Coalition is demanding that the White House change its
  crypto-policy. A letter the group of centrist Dems
  sent to Clinton today said: "We are deeply concerned
  that current policy restricting exports of
  cryptography technology poses a real threat to U.S.
  dominance..."

* The heinous section of the law that would create
  broad new Federal felonies for some uses of crypto was
  replaced. The amendment, offered by Rep. Delahunt
  and adopted unanimously includes eight hurdles:

	"Any person who, in the commission of a felony under
	a criminal statute of the United States, knowingly
	and willfully encrypts incriminating information
	relating to that felony with the intent to conceal
	such information for the purposes of avoiding
	detection by law enforcement agencies or
	prosecution..."

  It's a solid improvement, but this language still has
  no business becoming law. Problem is, nobody seems to
  have the balls to stand up and yank it. Delahunt,
  the amendment's sponsor, said the bill without the
  amendment "could have a chilling effect on the
  development and use of encryption." He added: "I
  recognize that some supporters of this amendment would
  like that this section be removed altogether." But it
  doesn't seem likely.

* The word on the streets is compromise. Hyde, chair
  of House Judiciary, brokered a meeting in his offices
  yesterday bringing together spooks, law enforcement,
  Goodlatte, and staffers. He says they're "very close
  to resolving any difficulties."

  Rep. McCollum chimed in: "It's just a matter of time
  before we work something out." Rep. Buyer said, and I
  am not making this up: "We should be good listeners to
  the NSA." Rep. Berman: "I hope there would be some way
  to bridge the differences between the administration
  and Goodlatte."

  More on this later...

* Rep. Hutchinson introduced an amendment that passed
  unanimously:

    (a) The Attorney General shall compile, and maintain
	in classified form, data on the instances in which
	encryption (as defined in section 2801 of title 18
	USC) has interfered with, impeded, or obstructed the
	ability of the Department of Justice to enforce the
	criminal laws of the United States. (b) The
	information compiled under subsection (a), including
	an unclassified summary thereof, shall be made
	available, upon request, to any Member of
	Congress.

  Problem is, a similar provision is *ALREADY LAW*. (It
  passed last year as part of an omnibus spending bill.)
  Brock Meeks wrote about it in his last Muckraker
  column: http://www.muckraker.com/

  And this is bad news: we already know that piss-poor
  crypto -- we're talking Brian Milburn-style, or
  WordPerfect strength -- has interfered with
  investigations. But with the NSA's help, cops were
  able to tunnel through it.

  That's why the Feds should be looking not at whether
  it *interferes* with an investigation, but whether it
  has *derailed* one. At least when the NRC report came
  out last year, not one investigation was derailed
  through the use of crypto. But even if it has derailed
  an investigation -- well, that may be the price of
  freedom...

* Rep. McCollum (R-Fl), a real Big Brother type of guy,
  added  an amendment to page 4, line 14 that passed
  unanimously. Addition is in caps:

     Subsection (a) shall not afect the authority of any
     investigative or law enforcement officer OR ANY MEMBER
     OF THE INTELLIGENCE COMMUNITY acting under any law in
     effect on the effective date of this chapter, to gain
     access to encrypted information.

  Now what the hell does this mean? Says McCollum: ""it
  is truly a technical amendment."

* Rep. Rothman was the only one who pointed out how
  government access to keys reduces freedom: "It raises
  civil libertarian and totalitarian issues for me." He
  recounted how at a recent hearing he asked the
  administration: "Let's cut to the chase: do you want
  to mandate this access?" The reply: "No, no, no."

I've said it before and I'll say it again: Congress
desperately wants to compromise. They're aching to
split the difference, cut a deal, and screw the pooch
in the process. Just watch for the backroom scheming
over the next few months. And if the worst features of
all the crypto-bills are combined into one package
that's attached to a huge spending bill that "just has
to go through" -- well, don't say I didn't warn you...

-Declan