5 September 1997
Source: MSNBC

5 September 1997, MSNBC:

FBI Director Louis Freeh floats a new proposal at a congressional hearing to outlaw non-breakable crypto products.

A radical shift in crypto debate

Proposed bill outlaws non-crackable crypto products, restrict imports

By Brock N. Meeks, MSNBC

WASHINGTON -- The White House would likely be very sympathetic to a controversial new bill that would outlaw all encryption software that doesn’t allow law enforcement agencies to immediately decode scrambled messages, an administration official told MSNBC.

The new bill, still in draft form, is quietly circulating among members of the House and Senate. Although the administration hasn’t formally endorsed any provisions of the bill, MSNBC has learned that the White House has been providing what is called technical drafting assistance to members of Congress writing the bill. William Reinsch, the Commerce Department undersecretary for export administration, confirmed the White House involvement for MSNBC on Thursday night.

The draft bill was already in the hands of some members of the Senate’s Subcommittee on Technology, Terrorism and Government Regulation when FBI Director Louis Freeh outlined its basic provisions while testifying before the panel Wednesday. Freeh said "we would recommend" that legislation be written requiring all encryption software or services made in or imported to the United States to have a feature "which would allow for the immediate, lawful decryption" of any scrambled messages used for illegal purposes or in a national security matter.


The White House, FBI and intelligence agencies claim that the proliferation of unbreakable encryption products puts the nation at risk. Criminals and terrorists are increasingly using unbreakable encryption products, Freeh testified Wednesday.

U.S. makers of encryption software claim that any government-mandated decoding features would make their products unacceptable to clients in the global marketplace. The new proposals outlined by Freeh also drew the ire of civil liberties groups, which fear that any government controls on encryption products raise serious First Amendment and privacy concerns.

Placing such government-mandated controls on the domestic use and manufacture of encryption software, as well as on the import of encryption products, stands in marked contrast to current White House crypto policies. Currently, the United States places strict regulations on the export of any encryption products that do make decoding keys available to law enforcement agencies. However, the administration has steadfastly maintained throughout the often contentious public debate over encryption policies that it would not place any restrictions on the domestic use of encryption software, nor would it restrict the import of encryption products.

Despite Freeh’s testimony and the draft legislation written with White House assistance, Reinsch said the administration’s policy on encryption hasn’t changed. "I want to emphasize that [in providing drafting assistance] we are responding to committee requests," he said. "And those requests have been fairly directive, such as: ‘Give us some examples of how we can better accommodate law enforcement needs.’ "

Currently, the White House is backing an encryption bill in the Senate called the Secure Public Networks Act, also known as S. 909. This bill would encourage the use of and set up guidelines for encryption software products with decoding keys. Under this plan, all coded messages would spin off a decoding key that would be stored with a government-approved third party. Law enforcement agencies, foreign or domestic, would be allowed access to those keys if they obtained a court-ordered warrant. The bill would not restrict or require any encryption software used in the United States, or restrict the import of any foreign crypto products.

However, MSNBC has learned that the draft bill now circulating among members of the House and Senate specifically outlaws the "manufacture, distribution or import" of any encryption software product or communication device that does not "allow the immediate decryption" of all scrambled messages or communications "if used for illegal purposes." The bill also targets "network services," such as Internet Service Providers, that provide encryption capabilities to their clients.


Under this proposed bill, if such encryption services are offered by a company like ISP, the service provider must build in a provision to allow for immediate decryption of any scrambled messages, according to several sources that have seen the draft language. The software ban would go into effect in January 1999.

Reinsch told MSNBC he wasn’t sure that Freeh’s testimony "accurately reflected" the language the White House offered in its technical drafting for congressional committees. However, he indicated the administration was interested in Freeh’s proposal.

"I’ll be blunt about it," Reinsch said. If such a bill were approved by a congressional committee, the administration "would look very seriously at it and I imagine we would be very sympathetic to it," he said.

Opponents of proposals to require key for all encryption software blanched at Freeh’s statements. "This proposal crosses a line that hasn’t been crossed before in the area of domestic controls on crypto," said Alan Davidson, policy analyst for the Center for Democracy and Technology. Davidson said a government mandate to provide immediate decryption capabilities would be like "forcing everyone to live in a glass house." It also "trashes the Fourth Amendment," which guarantees a right to be protected from unlawful search and seizure, Davidson said.

Freeh told the Senate panel Wednesday that he isn’t looking to expand law enforcement’s investigative powers. Rather, he said, he is only looking for a "Fourth Amendment that works in the Information Age."