7 September 1997
Source: Hardcopy of The New York Times

See draft text of law: http://jya.com/gakbill-text.htm

The New York Times, September 7, 1997, p. 31.

Law Proposed To Regulate Scrambling Of Data

By John Markoff

The Clinton Administration is circulating proposed legislation on Capitol Hill that would, for the first time, impose strict controls on the manufacture and use of technology that scrambles electronic data for privacy reasons.

The proposal would prohibit the manufacture, sale, import or distribution within the United States of any such technology unless it contained a feature to permit immediate decoding of any message by law enforcement officials with a wiretap order from a court, known as a trapdoor feature.

The law would also require telephone companies and Internet providers that offer data-scrambling technology, called encryption, to have that same feature.

Encryption technology has broad uses, including protecting information related to purchases made over the Internet, making possible private communication by telephone or computer and certifying the identity of an individual, as well as in the transmission of military and intelligence secrets. The Government maintains that it needs access to scrambled data for national security and law enforcement.

Currently, the only limitations on data-scrambling technology are regulations governing the export of hardware and software containing encryption features. That has allowed United States citizens and companies to develop and use any kind of encryption devices.

Under the Administration proposal, although data-scrambling technology would have to have the trap-door feature, the users would not be required to turn on the feature.

Critics of the proposal say the feature would simply be a first step toward making such a surveillance capability a legal requirement.

And in testimony last week before the Senate subcommittee dealing with the issue, Louis J. Freeh, Director. of the Federal Bureau of Investigation, said that he would lobby to make the trap-door feature a legal requirement.

The new legislation represents a significant reversal for the Administration, which had until now insisted that it was opposed to domestic encryption controls. It also appears to contradict the Administration's support for unregulated development of commerce on the Internet.

The proposal comes at a time when encryption hardware and software are becoming increasingly crucial for the protection of electronic commerce and personal privacy on the Internet.

Civil libertarians say the legislation would be a significant move toward a complete ban on products that offer unbreakable communications privacy.

"This is not the first step toward he surveillance society--it is the surveillance society," said Jerry Berman, executive director of the Center for Democracy and Technology, a Washington advocacy group.

But Government officials disputed the idea that requiring decoding technology would necessarily mean the technology would be used.

"There is nothing about putting this enabling technology into law that will inevitably lead to it being turned on," said Robert Litt, a Deputy Assistant United States Attorney.

In 1993, the Administration attempted to gain domestic adoption of encryption technology by proposing standards that it hoped would be adopted by industry, touching off a national debate. It announced plans at that time to use an electronic trap door known as the Clipper Chip. That system, which has been built into some secure Government telephones, installed an electronic trap door allowing law-enforcement officials to eavesdrop on telephone conversations if they obtained special mathematical keys needed to decrypt the encoded telephone signals.

The Government later introduced a second data-scrambling device, known as Fortezza, to be used for computer network communications. But the Government recently discontinued the manufacture of the personal computer cards that contain the scrambling system.

Current eavesdropping systems call for establishing certified third parties, known as escrow agents, that would maintain vast computer data bases of keys--long strings of numbers--that could be retrieved y law-enforcement officials with a court authorized wiretap order.

The Administration is now moving on an effort to block legislation that is to be considered this week by the house Intelligence and National Security Committees. That legislation would end Government control over cryptographic systems. The Administration proposal is being offered as an amendment to that bill. American technology companies have generally opposed restrictions on the use of encryption technology. Moreover, they have complained hat they are at a competitive disadvantage with companies in other nations that are not faced with the same restrictions imposed by United States export laws.


Congressional Record: September 5, 1997 (Digest):

                  Week of September 8 through 13, 1997

                           House Committees

  Committee on National Security, September 9, to markup H.R. 695, 
Security and Freedom Through Encryption (SAFE) Act, 1 p.m., 2118 

  Permanent Select Committee on Intelligence, September 9, 
executive, hearing on Encryption legislation, 10 a.m., H-405 
  September 11, executive, to markup Encryption legislation, 10 
a.m., H-405 Capitol.