[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 376 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 376

To affirm the rights of Americans to use and sell encryption products, 
 to establish privacy standards for voluntary key recovery encryption 
                    systems, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 27, 1997

    Mr. Leahy (for himself, Mr. Burns, Mrs. Murray, and Mr. Wyden) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To affirm the rights of Americans to use and sell encryption products, 
 to establish privacy standards for voluntary key recovery encryption 
                    systems, and for other purposes.

    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 ``Encrypted Communications Privacy Act 
of 1997''.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to ensure that Americans have the maximum possible 
        choice in encryption methods to protect the security, 
        confidentiality, and privacy of their lawful wire and 
        electronic communications and stored electronic information; 
        and
            (2) to establish privacy standards for key holders who are 
        voluntarily entrusted with the means to decrypt such 
        communications and information, and procedures by which 
        investigative or law enforcement officers may obtain assistance 
        in decrypting such communications and information.

SEC. 3. FINDINGS.

    Congress finds that--
            (1) the digitization of information and the explosion in 
        the growth of computing and electronic networking offers 
        tremendous potential benefits to the way Americans live, work, 
        and are entertained, but also raises new threats to the privacy 
        of American citizens and the competitiveness of American 
        businesses;
            (2) a secure, private, and trusted national and global 
        information infrastructure is essential to promote economic 
        growth, protect privacy, and meet the needs of American 
        citizens and businesses;
            (3) the rights of Americans to the privacy and security of 
        their communications and in the conducting of personal and 
        business affairs should be preserved and protected;
            (4) the authority and ability of investigative and law 
        enforcement officers to access and decipher, in a timely manner 
        and as provided by law, wire and electronic communications and 
        stored electronic information necessary to provide for public 
        safety and national security should also be preserved;
            (5) individuals will not entrust their sensitive personal, 
        medical, financial, and other information to computers and 
        computer networks unless the security and privacy of that 
        information is assured;
            (6) business will not entrust their proprietary and 
        sensitive corporate information, including information about 
        products, processes, customers, finances, and employees, to 
        computers and computer networks unless the security and privacy 
        of that information is assured;
            (7) encryption technology can enhance the privacy, 
        security, confidentiality, integrity, and authenticity of wire 
        and electronic communications and stored electronic 
        information;
            (8) encryption techniques, technology, programs, and 
        products are widely available worldwide;
            (9) Americans should be free to use lawfully whatever 
        particular encryption techniques, technologies, programs, or 
        products developed in the marketplace they desire to use in 
        order to interact electronically worldwide in a secure, 
        private, and confidential manner;
            (10) American companies should be free--
                    (A) to compete and to sell encryption technology, 
                programs, and products; and
                    (B) to exchange encryption technology, programs, 
                and products through the use of the Internet, as the 
                Internet is rapidly emerging as the preferred method of 
                distribution of computer software and related 
                information;
            (11) there is a need to develop a national encryption 
        policy that advances the development of the national and global 
        information infrastructure, and preserves the right to privacy 
        of Americans and the public safety and national security of the 
        United States;
            (12) there is a need to clarify the legal rights and 
        responsibilities of key holders who are voluntarily entrusted 
        with the means to decrypt wire and electronic communications 
        and stored electronic information;
            (13) Congress and the American people have recognized the 
        need to balance the right to privacy and the protection of the 
        public safety with national security;
            (14) the Constitution permits lawful electronic 
        surveillance by investigative or law enforcement officers and 
        the seizure of stored electronic information only upon 
        compliance with stringent standards and procedures; and
            (15) there is a need to clarify the standards and 
        procedures by which investigative or law enforcement officers 
        obtain assistance from key holders who--
                    (A) are voluntarily entrusted with the means to 
                decrypt wire and electronic communications and stored 
                electronic information; or
                    (B) have information that enables the decryption of 
                such communications and information.

SEC. 4. DEFINITIONS.

    As used in this Act, the terms ``decryption key'', ``encryption'', 
``key holder'', and ``State'' have the same meanings as in section 2801 
of title 18, United States Code, as added by section 6 of this Act.

SEC. 5. FREEDOM TO USE ENCRYPTION.

    (a) Lawful Use of Encryption.--Except as provided in this Act and 
the amendments made by this Act, it shall be lawful for any person 
within any State, and by any United States person in a foreign country, 
to use any encryption, regardless of encryption algorithm selected, 
encryption key length chosen, or implementation technique or medium 
used.
    (b) Prohibition on Mandatory Key Recovery or Key Escrow 
Encryption.--Neither the Federal Government nor a State may require, as 
a condition of a sale in interstate commerce, that a decryption key be 
given to another person.
    (c) General Construction.--Nothing in this Act or the amendments 
made by this Act shall be construed to--
            (1) require the use by any person of any form of 
        encryption;
            (2) limit or affect the ability of any person to use 
        encryption without a key recovery function; or
            (3) limit or affect the ability of any person who chooses 
        to use encryption with a key recovery function to select the 
        key holder, if any, of the person's choice.

SEC. 6. ENCRYPTED WIRE OR ELECTRONIC COMMUNICATIONS AND STORED 
              ELECTRONIC COMMUNICATIONS.

    (a) In General.--Part I of title 18, United States Code, is amended 
by inserting after chapter 123 the following new chapter:

 ``CHAPTER 125--ENCRYPTED WIRE OR ELECTRONIC COMMUNICATIONS AND STORED 
                         ELECTRONIC INFORMATION

``Sec.
``2801. Definitions.
``2802. Prohibited acts by key holders.
``2803. Reporting requirements.
``2804. Unlawful use of encryption to obstruct justice.
``2805. Freedom to sell encryption products.
``2806. Requirements for release of decryption key or provision of 
                            encryption assistance to a foreign country.
``Sec. 2801. Definitions
    ``In this chapter--
            ``(1) the term `decryption key' means the variable 
        information used in or produced by a mathematical formula, 
        code, or algorithm, or any component thereof, used to decrypt a 
        wire communication or electronic communication or stored 
        electronic information that has been encrypted;
            ``(2) the term `decryption assistance' means assistance 
        which provides or facilitates access to the plain text of an 
        encrypted wire communication or electronic communication or 
        stored electronic information;
            ``(3) the term `encryption' means the scrambling of wire 
        communications or electronic communications or stored 
        electronic information using mathematical formulas or 
        algorithms in order to preserve the confidentiality, integrity, 
        or authenticity of such communications or information and 
        prevent unauthorized recipients from accessing or altering such 
        communications or information;
            ``(4) the term `key holder' means a person (including a 
        Federal agency) located within the United States who--
                    ``(A) is voluntarily entrusted by another 
                independent person with the means to decrypt that 
                person's wire communications or electronic 
                communications or stored electronic information for the 
                purpose of subsequent decryption of such communications 
                or information; or
                    ``(B) has information that enables the decryption 
                of such communications or information for such purpose; 
                and
            ``(5) the terms `person', `State', `wire communication', 
        `electronic communication', `investigative or law enforcement 
        officer', `judge of competent jurisdiction', and `electronic 
        storage' have the same meanings given such terms in section 
        2510 of this title.
``Sec. 2802. Prohibited acts by key holders
    ``(a) Unauthorized Release of Key.--Except as provided in 
subsection (b), any key holder who releases a decryption key or 
provides decryption assistance shall be subject to the criminal 
penalties provided in subsection (e) and to civil liability as provided 
in subsection (f).
    ``(b) Authorized Release of Key.--A key holder shall only release a 
decryption key in the possession or control of the key holder or 
provide decryption assistance with respect to the key--
            ``(1) with the lawful consent of the person whose key is 
        possessed or controlled by the key holder;
            ``(2) as may be necessarily incident to the provision of 
        service relating to the possession or control of the key by the 
        key holder; or
            ``(3) upon compliance with subsection (c)--
                    ``(A) to investigative or law enforcement officers 
                authorized to intercept wire communications or 
                electronic communications under chapter 119 of this 
                title;
                    ``(B) to a governmental entity authorized to 
                require access to stored wire and electronic 
                communications and transactional records under chapter 
                121 of this title; or
                    ``(C) to a governmental entity authorized to seize 
                or compel the production of stored electronic 
                information.
    ``(c) Requirements for Release of Decryption Key or Provision of 
Decryption Assistance.--
            ``(1) Wire and electronic communications.--(A) A key holder 
        may release a decryption key or provide decryption assistance 
        to an investigative or law enforcement officer if--
                    ``(i) the key holder is given--
                            ``(I) a court order--
                                    ``(aa) signed by a judge of 
                                competent jurisdiction directing such 
                                release or assistance; and
                                    ``(bb) issued upon a finding that 
                                the decryption key or decryption 
                                assistance sought is necessary for the 
                                decryption of a communication that the 
                                investigative or law enforcement 
                                officer is authorized to intercept 
                                pursuant to chapter 119 of this title; 
                                or
                            ``(II) a certification in writing by a 
                        person specified in section 2518(7) of this 
                        title, or the Attorney General, stating that--
                                    ``(aa) no court order is required 
                                by law;
                                    ``(bb) the conditions set forth in 
                                section 2518(7) of this title have been 
                                met; and
                                    ``(cc) the release or assistance is 
                                required;
                    ``(ii) the order or certification under clause 
                (i)--
                            ``(I) specifies the decryption key or 
                        decryption assistance being sought; and
                            ``(II) identifies the termination date of 
                        the period for which the release or assistance 
                        is authorized; and
                    ``(iii) in compliance with the order or 
                certification, the key holder provides only the release 
                or decryption assistance necessary for the access 
                specified in the order or certification.
            ``(B) If an investigative or law enforcement officer 
        receives a decryption key or decryption assistance under this 
        paragraph for purposes of decrypting wire communications or 
        electronic communications, the judge issuing the order 
        authorizing the interception of such communications shall, as 
        part of the inventory required to be served pursuant to 
        subsection (7)(b) or (8)(d) of section 2518 of this title, 
        cause to be served on the persons named in the order, or the 
        application for the order, and on such other parties as the 
        judge may determine in the interests of justice, notice of the 
        receipt of the key or decryption assistance, as the case may 
        be, by the officer.
            ``(2) Stored wire and electronic communications and stored 
        electronic information.--(A) A key holder may release a 
        decryption key or provide decryption assistance to a 
        governmental entity requiring disclosure of stored wire and 
        electronic communications and transactional records under 
        chapter 121 of this title only if the key holder is directed to 
        release the key or give such assistance pursuant to a court 
        order issued upon a finding that the decryption key or 
        decryption assistance sought is necessary for the decryption of 
        communications or records the disclosure of which the 
        governmental entity is authorized to require under section 2703 
        of this title.
            ``(B) A key holder may release a decryption key or provide 
        decryption assistance under this subsection to a governmental 
        entity seizing or compelling production of stored electronic 
        information only if the key holder is directed to release the 
        key or give such assistance pursuant to a court order issued 
        upon a finding that the decryption key or decryption assistance 
        sought is necessary for the decryption of stored electronic 
        information--
                    ``(i) that the governmental entity is authorized to 
                seize; or
                    ``(ii) the production of which the governmental 
                entity is authorized to compel.
            ``(C) A court order directing the release of a decryption 
        key or the provision of decryption assistance under 
        subparagraph (A) or (B) shall specify the decryption key or 
        decryption assistance being sought. A key holder may provide 
        only such release or decryption assistance as is necessary for 
        access to the communications, records, or information covered 
        by the court order.
            ``(D) If a governmental entity receives a decryption key or 
        decryption assistance under this paragraph for purposes of 
        obtaining access to stored wire and electronic communications 
        or transactional records under section 2703 of this title, the 
        notice required with respect to such access under subsection 
        (b) of such section shall include notice of the receipt of the 
        key or assistance, as the case may be, by the entity.
            ``(3) Use of key.--(A) An investigative or law enforcement 
        officer or governmental entity to which a decryption key is 
        released under this subsection may use the key only in the 
        manner and for the purpose and period expressly provided for in 
        the certification or court order authorizing such release and 
        use. Such period may not exceed the duration of the 
        interception for which the key was released or such other 
        period as the court, if any, may allow.
            ``(B) Not later than the end of the period authorized for 
        the release of a decryption key, the investigative or law 
        enforcement officer or governmental entity to which the key is 
        released shall destroy and not retain the key and provide a 
        certification that the key has been destroyed to the issuing 
        court, if any.
            ``(4) Nondisclosure of release.--No key holder, officer, 
        employee, or agent thereof may disclose the release of an 
        encryption key or the provision of decryption assistance under 
        subsection (b)(3), except as otherwise required by law or legal 
        process and then only after prior notification to the Attorney 
        General or to the principal prosecuting attorney of a State or 
        of a political subdivision of a State, as appropriate.
    ``(d) Records or Other Information Held by Key Holders.--
            ``(1) In general.--A key holder may not disclose a record 
        or other information (not including the key or the contents of 
        communications) pertaining to any person, which record or 
        information is held by the key holder in connection with its 
        control or possession of a decryption key, except--
                    ``(A) with the lawful consent of the person whose 
                key is possessed or controlled by the key holder; or
                    ``(B) to an investigative or law enforcement 
                officer pursuant to a warrant, subpoena, court order, 
                or other lawful process authorized by Federal or State 
                law.
        ``(2) Certain notice not required.--An investigative or law 
        enforcement officer receiving a record or information under 
        paragraph (1)(B) is not required to provide notice of such 
        receipt to the person to whom the record or information 
        pertains.
            ``(3) Liability for civil damages.--Any disclosure in 
        violation of this subsection shall render the person committing 
        the violation liable for the civil damages provided for in 
        subsection (f).
    ``(e) Criminal Penalties.--The punishment for an offense under 
subsection (a) is--
            ``(1) if the offense is committed for a tortious, 
        malicious, or illegal purpose, or for purposes of direct or 
        indirect commercial advantage or private commercial gain--
                    ``(A) a fine under this title or imprisonment for 
                not more than 1 year, or both, in the case of a first 
                offense; or
                    ``(B) a fine under this title or imprisonment for 
                not more than 2 years, or both, in the case of a second 
                or subsequent offense; and
            ``(2) in any other case where the offense is committed 
        recklessly or intentionally, a fine of not more than $5,000 or 
        imprisonment for not more than 6 months, or both.
    ``(f) Civil Damages.--
            ``(1) In general.--Any person aggrieved by any act of a 
        person in violation of subsection (a) or (d) may in a civil 
        action recover from such person appropriate relief.
            ``(2) Relief.--In an action under this subsection, 
        appropriate relief includes--
                    ``(A) such preliminary and other equitable or 
                declaratory relief as may be appropriate;
                    ``(B) damages under paragraph (3) and punitive 
                damages in appropriate cases; and
                    ``(C) a reasonable attorney's fee and other 
                litigation costs reasonably incurred.
            ``(3) Computation of damages.--The court may assess as 
        damages the greater of--
                    ``(A) the sum of the actual damages suffered by the 
                plaintiff and any profits made by the violator as a 
                result of the violation; or
                    ``(B) statutory damages in the amount of $5,000.
            ``(4) Limitation.--A civil action under this subsection 
        shall be commenced not later than 2 years after the date on 
        which the plaintiff first knew or should have known of the 
        violation.
    ``(g) Defense.--It shall be a complete defense against any civil or 
criminal action brought under this chapter that the defendant acted in 
good faith reliance upon a warrant, subpoena, or court order or other 
statutory authorization.
``Sec. 2803. Reporting requirements
    ``(a) In General.--In reporting to the Administrative Office of the 
United States Courts as required under section 2519(2) of this title, 
the Attorney General, an Assistant Attorney General specially 
designated by the Attorney General, the principal prosecuting attorney 
of a State, or the principal prosecuting attorney of any political 
subdivision of a State shall report on the number of orders and 
extensions served on key holders under this chapter to obtain access to 
decryption keys or decryption assistance and the offenses for which the 
orders and extensions were obtained.
    ``(b) Requirements.--The Director of the Administrative Office of 
the United States Courts shall include in the report transmitted to 
Congress under section 2519(3) of this title the number of orders and 
extensions served on key holders to obtain access to decryption keys or 
decryption assistance and the offenses for which the orders and 
extensions were obtained.
``Sec. 2804. Unlawful use of encryption to obstruct justice
    ``Whoever willfully endeavors by means of encryption to obstruct, 
impede, or prevent the communication to an investigative or law 
enforcement officer of information in furtherance of a felony that may 
be prosecuted in a court of the United States shall--
            ``(1) in the case of a first conviction, be sentenced to 
        imprisonment for not more than 5 years, fined under this title, 
        or both; or
            ``(2) in the case of a second or subsequent conviction, be 
        sentenced to imprisonment for not more than 10 years, fined 
        under this title, or both.
``Sec. 2805. Freedom to sell encryption products
    ``(a) In General.--It shall be lawful for any person within any 
State to sell in interstate commerce any encryption, regardless of 
encryption algorithm selected, encryption key length chosen, or 
implementation technique or medium used.
    ``(b) Control of Exports by Secretary of Commerce.--
            ``(1) General rule.--Notwithstanding any other law and 
        subject to paragraphs (2), (3), and (4), the Secretary of 
        Commerce shall have exclusive authority to control exports of 
        all computer hardware, computer software, and technology for 
        information security (including encryption), except computer 
        hardware, software, and technology that is specifically 
        designed or modified for military use, including command, 
        control, and intelligence applications.
            ``(2) Items subject to license exception.--Except as 
        otherwise provided under the Trading With The Enemy Act (50 
        U.S.C. App. 1 et seq.) or the International Emergency Economic 
        Powers Act (50 U.S.C. 1701 et seq.) (but only to the extent 
        that the authority of the International Emergency Economic 
        Powers Act is not exercised to extend controls imposed under 
        the Export Administration Act of 1979), a license exception 
        shall be made available for the export or reexport of--
                    ``(A) any computer software, including computer 
                software with encryption capabilities, that is--
                            ``(i) generally available, as is, and 
                        designed for installation by the user or 
                        purchaser; or
                            ``(ii) in the public domain (including 
                        computer software available through the 
                        Internet or another interactive computer 
                        service) or publicly available because the 
                        computer software is generally accessible to 
                        the interested public in any form;
                    ``(B) any computing device or computer hardware 
                that otherwise would be restricted solely on the basis 
                that it incorporates or employs in any form computer 
                software (including computer software with encryption 
                capabilities) that is described in subparagraph (A);
                    ``(C) any computer software or computer hardware 
                that is otherwise restricted solely on the basis that 
                it incorporates or employs in any form interface 
                mechanisms for interaction with other hardware and 
                software, including encryption hardware and software; 
                or
                    ``(D) any encryption technology related or 
                ancillary to a device, software, or hardware described 
                in subparagraph (A), (B), or (C).
            ``(3) Computer software, computer hardware, and technology 
        with encryption capabilities.--(A) Except as provided in 
        subparagraph (B), the Secretary of Commerce shall authorize the 
        export or reexport of computer software, computer hardware, and 
        technology with encryption capabilities under a license 
        exception if--
                    ``(i) a product offering comparable security is 
                commercially available from a foreign supplier without 
                effective restrictions;
                    ``(ii) a product offering comparable security is 
                generally available in a foreign country; or
                    ``(iii) the sole basis for otherwise withholding 
                the license exception is the employment in the 
                software, hardware, or technology of encryption from a 
                foreign source.
            ``(B) The Secretary of Commerce shall prohibit the export 
        or reexport of computer software, computer hardware, and 
        technology described in subparagraph (A) to a foreign country 
        if the Secretary determines that there is substantial evidence 
        that such software, hardware, or technology will be--
                    ``(i) diverted to a military end-use or an end-use 
                supporting international terrorism;
                    ``(ii) modified for military or terrorist end-use; 
                or
                    ``(iii) reexported without requisite United States 
                authorization.
            ``(4) Definitions.--As used in this subsection--
                    ``(A) the term `as is' means, in the case of 
                computer software (including computer software with 
                encryption capabilities), a computer software program 
                that is not designed, developed, or tailored by the 
                computer software company for specific purchasers, 
                except that such purchasers may supply certain 
                installation parameters needed by the computer software 
                program to function properly with the purchaser's 
                system and may customize the computer software program 
                by choosing among options contained in the computer 
                software program;
                    ``(B) 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;
                    ``(C) the term `computer hardware', when used in 
                conjunction with information security, includes 
                computer systems, equipment, application-specific 
                assemblies, modules, and integrated circuits;
                    ``(D) the term `generally available' means, in the 
                case of computer software (including computer software 
                with encryption capabilities), computer software that 
                is widely offered for sale, license, or transfer 
                including over-the-counter retail sales, mail order 
                transactions, telephone order transactions, electronic 
                distribution, and sale on approval;
                    ``(E) the term `interactive computer service' has 
                the meaning provided that term in section 230(e)(2) of 
                the Communications Act of 1934 (47 U.S.C. 230(e)(2));
                    ``(F) the term `Internet' has the meaning provided 
                that term in section 230(e)(1) of the Communications 
                Act of 1934 (47 U.S.C. 230(e)(1));
                    ``(G) the term `is designed for installation by the 
                purchaser' means, in the case of computer software 
                (including computer software with encryption 
                capabilities)--
                            ``(i) that the computer software company 
                        intends for the purchaser (including any 
                        licensee or transferee), who may not be the 
                        actual program user, to install the computer 
                        software program on a computing device and has 
                        supplied the necessary instructions to do so, 
                        except that the company may also provide 
                        telephone help-line services for software 
                        installation, electronic transmission, or basic 
                        operations; and
                            ``(ii) that the computer software program 
                        is designed for installation by the purchaser 
                        without further substantial support by the 
                        supplier;
                    ``(H) the term `license exception' means a general 
                authorization applicable to a type of export that does 
                not require an exporter to, as a condition of 
                exporting--
                            ``(i) submit a written application to the 
                        Secretary of Commerce; or
                            ``(ii) receive prior written authorization 
                        by the Secretary of Commerce; and
                    ``(I) the term `technology' means specific 
                information necessary for the development, production, 
                or use of a product.
``Sec. 2806. Requirements for release of decryption key or provision of 
              decryption assistance to a foreign country
    ``(a) In General.--Except as provided in subsection (b), no 
investigative or law enforcement officer or key holder may release a 
decryption key or provide decryption assistance to a foreign country.
    ``(b) Conditions for Cooperation With Foreign Country.--
            ``(1) In general.--In any case in which the United States 
        has entered into a treaty or convention with a foreign country 
        to provide mutual assistance with respect to decryption, the 
        Attorney General (or the designee of the Attorney General) may, 
        upon an official request to the United States from the foreign 
        country, apply for an order described in paragraph (2) from the 
        district court in which a key holder resides for--
                    ``(A) assistance in obtaining the release of a 
                decryption key from the key holder; or
                    ``(B) obtaining decryption assistance from the key 
                holder.
            ``(2) Contents of order.--An order described in this 
        paragraph is an order that directs the key holder involved to--
                    ``(A) release a decryption key to the Attorney 
                General (or the designee of the Attorney General) for 
                furnishing to the foreign country; or
                    ``(B) provide decryption assistance to the Attorney 
                General (or the designee of the Attorney General) for 
                furnishing to the foreign country.
            ``(3) Requirements for order.--A judge of a court described 
        in paragraph (1) may issue an order described in paragraph (2) 
        if the judge finds, on the basis on an application made by the 
        Attorney General under this subsection, that--
                    ``(A) the decryption key or decryption assistance 
                sought is necessary for the decryption of a 
                communication or information that the foreign country 
                is authorized to intercept or seize pursuant to the law 
                of the foreign country;
                    ``(B) the law of the foreign country provides for 
                adequate protection against arbitrary interference with 
                respect to privacy rights; and
                    ``(C) the decryption key or decryption assistance 
                is being sought in connection with a criminal 
                investigation for conduct that would constitute a 
                violation of a criminal law of the United States if 
                committed within the jurisdiction of the United States.
    ``(c) Definition.--As used in this section, the term `official 
request' has the meaning given that term in section 3506(c) of this 
title.''.
    (b) Clerical Amendment.--The chapter analysis for part I of title 
18, United States Code, is amended by inserting after the item relating 
to chapter 123 the following new item:

``125. Encrypted wire or electronic communications and          2801''.
                            stored electronic information.

SEC. 7. INTELLIGENCE ACTIVITIES.

    (a) Construction.--Nothing in this Act or the amendments made by 
this Act constitutes authority for the conduct of any intelligence 
activity.
    (b) Certain Conduct.--Nothing in this Act or the amendments made by 
this Act shall affect the conduct, by officers or employees of the 
United States Government in accordance with other applicable Federal 
law, under procedures approved by the Attorney General, of activities 
intended to--
            (1) intercept encrypted or other official communications of 
        United States executive branch entities or United States 
        Government contractors for communications security purposes;
            (2) intercept radio communications transmitted between or 
        among foreign powers or agents of a foreign power as defined by 
        the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
        1801 et seq.); or
            (3) access an electronic communication system used 
        exclusively by a foreign power or agent of a foreign power as 
        so defined.
                                 <all>