I oppose the substitute to H.R. 695 ordered reported from the Permanent Select Committee on Intelligence. While there are indeed serious national security and law enforcement issues at stake in this debate, there are also serious questions about the impact of this legislation on the civil liberties on which this nation is based. A balance must be struck. The bill passed by the Committee does not strike the requisite balance.
I was very concerned about the lack of an audit mechanism in the Committee's substitute as proposed and are pleased that the bill was amended to require an electronic audit trail, to ensure that there is accountability when an investigative or law enforcement officer obtains access to the plaintext of otherwise encrypted information or the provision of decryption information.
Among the reasons I oppose the bill are the following:
With respect to domestic controls, the ramifications of enacting a requirement that encryption products manufactured, distributed or imported in the United States after January 2000 contain features that provide, upon presentment of a court order, immediate plaintext access or decryption information, are not well understood. It is not clear such a requirement could pass constitutional muster, particularly where it might place restrictions on the distribution of encryption algorithms or the free flow of ideas among scientists working in the area of information technology. Indeed imposing domestic controls runs counter to the first recommendation of the National Research Council's widely-respected CRISIS report (Cryptography's Role in Security in the Information Society, June 1996), that no law bar the manufacture, sale or use of any form of encryption in the United States. Despite the many provisions of the legislation designed to place civil and criminal penalties on official misuse of decryption information, and provide privacy protections to those who encrypt information, further debate is needed on whether the legal framework governing lawful wiretaps is the appropriate model for the 21st Century as so much information concerning our personal and economic lives is connected and accessible on-line.
With respect to export controls, the legislation would force U.S. manufacturers to include features that could provide plaintext access or decryption information in encryption products exported overseas. Although the legislation allows these features to be enabled at the foreign purchaser's option, and does not require any keys or recovery information be held in escrow in the United States, demanding recovery capable features in exportable U.S. technology may provide repressive totalitarian regimes a new method of control over dissidents and human rights advocates who today evade surveillance by utilizing unbreakable encryption on the Internet.
Also of concern is the impact of certain of the substitute's provisions on human rights activists in authoritarian countries. Human rights activists worldwide are using cryptography to protect their sources from reprisals by governments that violate human rights. Under the Committee substitute, the U.S. government can get a court order for violating the security of communications "upon a request from a foreign country pursuant to a Mutual Legal Assistance Treaty." This provision will permit governments to breach the protection of confidential sources, thereby both endangering human rights activists using electronic communications and discouraging people who know of human rights violations to speak about them, even in private. Authoritarian governments often define the activities of those who dare to speak out against them as "treason" or "revealing classified information," crimes recognized by the U.S. government. Under the Committee substitute, legitimate human rights activists, who now communicate safely through the Internet with strong encryption protection, will no longer have that safety.
In addition, the legislation enshrines the broad concept that all decisions of the Secretary of Commerce with respect to the export of encryption products are not subject to judicial review. If the question at hand has to do with national security implications, the President could waive judicial review on a case-by-case basis as needed, rather than Congress acting to grant a blanket waiver of a citizen's right to recourse to the legal system.
The serious issues involving national security and public safety could have been resolved with a more narrowly targeted approach. I hope efforts will be made to craft a consensus measure before H.R. 695 is considered on the floor of the House of Representatives.
