[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 695 Introduced in House (IH)]
105th CONGRESS
1st Session
H. R. 695
To amend title 18, United States Code, to affirm the rights of United
States persons to use and sell encryption and to relax export controls
on encryption.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 12, 1997
Mr. Goodlatte (for himself, Ms. Lofgren, Mr. DeLay, Mr. Boehner, Mr.
Coble, Mr. Sensenbrenner, Mr. Bono, Mr. Pease, Mr. Cannon, Mr. Conyers,
Mr. Boucher, Mr. Gekas, Mr. Smith of Texas, Mr. Inglis of South
Carolina, Mr. Bryant, Mr. Chabot, Mr. Barr of Georgia, Ms. Jackson-Lee
of Texas, Ms. Waters, Mr. Ackerman, Mr. Baker, Mr. Bartlett of
Maryland, Mr. Campbell, Mr. Chambliss, Mr. Cunningham, Mr. Davis of
Virginia, Mr. Dickey, Mr. Doolittle, Mr. Ehlers, Mr. Engel, Ms. Eshoo,
Mr. Everett, Mr. Ewing, Mr. Farr of California, Mr. Gejdenson, Mr.
Gillmor, Mr. Goode, Ms. Norton, Mr. Horn, Ms. Eddie Bernice Johnson of
Texas, Mr. Sam Johnson of Texas, Mr. Kolbe, Mr. McIntosh, Mr. McKeon,
Mr. Manzullo, Mr. Matsui, Mr. Mica, Mr. Minge, Mr. Moakley, Mr.
Nethercutt, Mr. Packard, Mr. Sessions, Mr. Upton, Mr. White, and Ms.
Woolsey) introduced the following bill; which was referred to the
Committee on the Judiciary, and in addition to the Committee on
Internaional Relations, for a period to be subsequently determined by
the Speaker, in each case for consideration of such provisions as fall
within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to affirm the rights of United
States persons to use and sell encryption and to relax export controls
on encryption.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Security and Freedom Through
Encryption (SAFE) Act''.
SEC. 2. SALE AND USE OF ENCRYPTION.
(a) In General.--Part I of title 18, United States Code, is amended
by inserting after chapter 121 the following new chapter:
``CHAPTER 122--ENCRYPTED WIRE AND ELECTRONIC INFORMATION
``2801. Definitions.
``2802. Freedom to use encryption.
``2803. Freedom to sell encryption.
``2804. Prohibition on mandatory key escrow.
``2805. Unlawful use of encryption in furtherance of a criminal act.
``Sec. 2801. Definitions
``As used in this chapter--
``(1) the terms `person', `State', `wire communication',
`electronic communication', `investigative or law enforcement
officer', `judge of competent jurisdiction', and `electronic
storage' have the meanings given those terms in section 2510 of
this title;
``(2) the terms `encrypt' and `encryption' refer to the
scrambling of wire or electronic information using mathematical
formulas or algorithms in order to preserve the
confidentiality, integrity, or authenticity of, and prevent
unauthorized recipients from accessing or altering, such
information;
``(3) the term `key' means the variable information used in
a mathematical formula, code, or algorithm, or any component
thereof, used to decrypt wire or electronic information that
has been encrypted; and
``(4) the term `United States person' means--
``(A) any United States citizen;
``(B) any other person organized under the laws of
any State, the District of Columbia, or any
commonwealth, territory, or possession of the United
States; and
``(C) any person organized under the laws of any
foreign country who is owned or controlled by
individuals or persons described in subparagraphs (A)
and (B).
``Sec. 2802. Freedom to use encryption
``Subject to section 2805, it shall be lawful for any person within
any State, and for any United States person in a foreign country, to
use any encryption, regardless of the encryption algorithm selected,
encryption key length chosen, or implementation technique or medium
used.
``Sec. 2803. Freedom to sell encryption
``Subject to section 2805, it shall be lawful for any person within
any State to sell in interstate commerce any encryption, regardless of
the encryption algorithm selected, encryption key length chosen, or
implementation technique or medium used.
``Sec. 2804. Prohibition on mandatory key escrow
``(a) Prohibition.--No person in lawful possession of a key to
encrypted information may be required by Federal or State law to
relinquish to another person control of that key.
``(b) Exception for Access for Law Enforcement Purposes.--
Subsection (a) shall not affect the authority of any investigative or
law enforcement officer, acting under any law in effect on the
effective date of this chapter, to gain access to encrypted
information.
``Sec. 2805. Unlawful use of encryption in furtherance of a criminal
act
``Any person who willfully uses encryption in furtherance of the
commission of a criminal offense for which the person may be prosecuted
in a court of competent jurisdiction--
``(1) in the case of a first offense under this section,
shall be imprisoned for not more than 5 years, or fined in the
amount set forth in this title, or both; and
``(2) in the case of a second or subsequent offense under
this section, shall be imprisoned for not more than 10 years,
or fined in the amount set forth in this title, or both.''.
(b) Conforming Amendment.--The table of chapters for part I of
title 18, United States Code, is amended by inserting after the item
relating to chapter 33 the following new item:
``122. Encrypted wire and electronic information............ 2801''.
SEC. 3. EXPORTS OF ENCRYPTION.
(a) Amendment to Export Administration Act of 1979.--Section 17 of
the Export Administration Act of 1979 (50 U.S.C. App. 2416) is amended
by adding at the end thereof the following new subsection:
``(g) Computers and Related Equipment.--
``(1) General rule.--Subject to paragraphs (2), (3), and
(4), the Secretary shall have exclusive authority to control
exports of all computer hardware, software, and technology for
information security (including encryption), except that which
is specifically designed or modified for military use,
including command, control, and intelligence applications.
``(2) Items not requiring licenses.--No validated license
may be required, except pursuant to the Trading With The Enemy
Act or the International Emergency Economic Powers Act (but
only to the extent that the authority of such Act is not
exercised to extend controls imposed under this Act), for the
export or reexport of--
``(A) any software, including software with
encryption capabilities--
``(i) that is generally available, as is,
and is designed for installation by the
purchaser; or
``(ii) that is in the public domain for
which copyright or other protection is not
available under title 17, United States Code,
or that is available to the public because it
is generally accessible to the interested
public in any form; or
``(B) any computing device solely because it
incorporates or employs in any form software (including
software with encryption capabilities) exempted from
any requirement for a validated license under
subparagraph (A).
``(3) Software with encryption capabilities.--The Secretary
shall authorize the export or reexport of software with
encryption capabilities for nonmilitary end uses in any country
to which exports of software of similar capability are
permitted for use by financial institutions not controlled in
fact by United States persons, unless there is substantial
evidence that such software will be--
``(A) diverted to a military end use or an end use
supporting international terrorism;
``(B) modified for military or terrorist end use;
or
``(C) reexported without any authorization by the
United States that may be required under this Act.
``(4) Hardware with encryption capabilities.--The Secretary
shall authorize the export or reexport of computer hardware
with encryption capabilities if the Secretary determines that a
product offering comparable security is commercially available
outside the United States from a foreign supplier, without
effective restrictions.
``(5) Definitions.--As used in this subsection--
``(A) the term `encryption' means the scrambling of
wire or electronic information using mathematical
formulas or algorithms in order to preserve the
confidentiality, integrity, or authenticity of, and
prevent unauthorized recipients from accessing or
altering, such information;
``(B) the term `generally available' means, in the
case of software (including software with encryption
capabilities), software that is offered for sale,
license, or transfer to any person without restriction,
whether or not for consideration, including, but not
limited to, over-the-counter retail sales, mail order
transactions, phone order transactions, electronic
distribution, or sale on approval;
``(C) the term `as is' means, in the case of
software (including software with encryption
capabilities), a software program that is not designed,
developed, or tailored by the software publisher for
specific purchasers, except that such purchasers may
supply certain installation parameters needed by the
software program to function properly with the
purchaser's system and may customize the software
program by choosing among options contained in the
software program;
``(D) the term `is designed for installation by the
purchaser' means, in the case of software (including
software with encryption capabilities) that--
``(i) the software publisher intends for
the purchaser (including any licensee or
transferee), who may not be the actual program
user, to install the software program on a
computing device and has supplied the necessary
instructions to do so, except that the
publisher may also provide telephone help line
services for software installation, electronic
transmission, or basic operations; and
``(ii) the software program is designed for
installation by the purchaser without further
substantial support by the supplier;
``(E) the term `computing device' means a device
which incorporates one or more microprocessor-based
central processing units that can accept, store,
process, or provide output of data; and
``(F) the term `computer hardware', when used in
conjunction with information security, includes, but is
not limited to, computer systems, equipment,
application-specific assemblies, modules, and
integrated circuits.''.
(b) Continuation of Export Administration Act.--For purposes of
carrying out the amendment made by subsection (a), the Export
Administration Act of 1979 shall be deemed to be in effect.
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