24 September 1997
Source: Mail list cypherpunks@toad.com
See related report: http://www.cdt.org/crypto/legis_105/SAFE/
Date: Wed, 24 Sep 1997 21:37:56 -0400 To: fight-censorship@vorlon.mit.edu, cypherpunks@toad.com From: Declan McCullagh <declan@well.com> Subject: Crypto-victory in Commerce; Oxley talks about nuking Congress So I'm sitting here in the lobbyist warren of the Capitol Grille on Pennsylvania Avenue getting sloshed on expensive beer -- and sick on the clouds of cigar smoke from industry representatives flush from their victory in the House Commerce committee earlier this evening. And they do have cause to celebrate. A week ago, the outlook in Congress was dismal. The House Intelligence committee had approved (during a closed hearing) the first-ever domestic restrictions on what technologies Americans can use to protect their privacy. The House Commerce committee seemed certain to follow. Rep. Oxley, who was pushing the proposal, told me last week he had the votes sewn up. The tide changed today when the Commerce committee overwhelmingly defeated Oxley's amendment. In a 35-16 vote, members rejected restrictions on manufacturing unapproved encryption devices and instead approved a modified version of Rep. Goodlatte's original Security and Freedom through Encryption (SAFE) bill. The vote came after a last-minute press by a diverse coalition of industry groups, including some who had never weighed in on crypto before, including the automobile companies and the Baby Bells. (In fact, the Bells may have been the deciding factor in defeating the measure.) The version of SAFE the Commerce committee approved includes: criminal penalties (doubled from the original) for the use of encryption in a crime, a prohibition on mandatory domestic key escrow, delinking certificate authorities from key escrow requirements, a "NET" center to coordinate law enforcement codebreaking, a classfied study to be conducted by the Attorney General, a NIST study on crypto, and liability limitations on firms providing key recovery. It also includes SAFE's original export relaxation on encryption products that are already available overseas or are in the public domain. Many of those changes were proposed by Reps. Markey and White, who had their amendment approved 40-11. The amended bill was approved out of the committee by a 44-6 vote. (One lobbyist just leaned over, martini in hand, and asked me, "Do you need a quote, Declan?" //sigh//) Today's discussion before the committee was all about compromise -- which, after all, shouldn't be surprising. Washington politicians thrive on it. If politics is the art of the possible, compromise is its lifeblood. But to the chagrin of politicans, staffers, and bureaucrats alike, the politics of encryption doesn't provide one. Either you use backdoored crypto or you don't. Either you have unalloyed privacy or you don't. There's no middle ground. Of course it's one thing to compromise on tax bills or spending measures. That's not only expected, it's necessary. But it's another thing entirely to compromise on a bill that deals with fundamental freedoms. How many newspapers is it acceptable for the government to review and censor before publication? How many Americans can be imprisoned without a public trial? Sometimes, including now, Americans should stand on principle and reject that any and all "compromises." A coalition of groups from the American Civil Liberties Union to the Eagle Forum sent out just that letter earlier today. Those groups understand what high tech firms have been slow to realize: Congress will not, and cannot, approve a bill that benefits crypto-liberty. Right now there are no domestic controls on encryption. After Congress passes a bill, that will surely change. The crypto-in-a-crime provisions are destined to stay in. When crypto becomes omnipresent, Congress might just as well punish you for speaking Spanish in the commission of a crime. (By now the lobbyists are drunk. One just leaned over, laughing excitedly, and yelled in my ear: "Cold fusion still doesn't work!" Huh? Whatever. Seriously, folks, I do not make this stuff up. Another fellow says the quote of the day is: "The FBI tried to take the country hostage.") Anyway, today firms saw their arguments used against them. For years companies have testified before Congress that crypto was readily available at the corner software store. One Congressman recently even waved around a shrinkwrapped copy of Lotus Notes as a prop. At last the techno-impaired members of the House Commerce committee have realized that strong crypto was available through a point-and-click download (or for $19.95). But instead of allowing the //overseas// distribution of encryption, they instead came close to banning the //domestic// distribution. By now even the more censorhappy members of Congress are sick and tired of hearing about pedophiles and child pornographers and molesters and such. Even the druglords-wielding-crypto claims pales after a while -- at least if you've heard it 17 times in the past few weeks. So today Rep. Oxley whipped out his trump card: if you don't vote for my amendment, you'll get blown up! "How about some terrorist orgainztion acting with impunity because they have the ability to communicate with impunity gets a hold of a Russian nuclear device and threatens to blow up the Capitol of the United States?" In the end, Oxley's amendment didn't carry the day. It was of course almost entirely the successful lobbying -- and if firms can't win in the //Commerce// committee, where can they win? -- but to their credit, some Congressmen actually talked about the Constitutional issues involved. "This is about our liberty and how far we will go in protecting our liberties," said Rep. Rogan, a former prosecutor and judge who spoke against Oxley. The future, however, is uncertain. The bill now goes to the House Rules committee, whose chairman said today in a strongly-worded letter that he'd only allow a bill to go to the floor if it included Oxley's amendment. Look for a hell of a lot of behind-the-scenes lobbying on this now... -Declan ------------------------- Declan McCullagh Time Inc. The Netly News Network Washington Correspondent http://netlynews.com/