[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 850 Introduced in House (IH)]







106th CONGRESS
  1st Session
                                H. R. 850

 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 25, 1999

  Mr. Goodlatte (for himself, Ms. Lofgren, Mr. Armey, Mr. DeLay, Mr. 
 Watts of Oklahoma, Mr. Davis of Virginia, Mr. Cox, Ms. Pryce of Ohio, 
Mr. Blunt, Mr. Gephardt, Mr. Bonior, Mr. Frost, Ms. DeLauro, Mr. Lewis 
of Georgia, Mr. Gejdenson, Mr. Sensenbrenner, Mr. Gekas, Mr. Coble, Mr. 
   Smith of Texas, Mr. Gallegly, Mr. Bryant, Mr. Chabot, Mr. Barr of 
 Georgia, Mr. Hutchinson, Mr. Pease, Mr. Cannon, Mr. Rogan, Mrs. Bono, 
 Mr. Bachus, Mr. Conyers, Mr. Frank of Massachusetts, Mr. Boucher, Mr. 
Nadler, Ms. Jackson-Lee of Texas, Ms. Waters, Mr. Meehan, Mr. Delahunt, 
 Mr. Wexler, Mr. Ackerman, Mr. Andrews, Mr. Archer, Mr. Ballenger, Mr. 
 Barcia, Mr. Barrett of Nebraska, Mr. Barrett of Wisconsin, Mr. Barton 
of Texas, Mr. Bilbray, Mr. Blumenauer, Mr. Boehner, Mr. Brady of Texas, 
     Mr. Brady of Pennsylvania, Ms. Brown of Florida, Mr. Brown of 
  California, Mr. Burr of North Carolina, Mr. Burton of Indiana, Mr. 
  Camp, Mr. Campbell, Mrs. Capps, Mr. Chambliss, Mrs. Chenoweth, Mrs. 
  Christian-Christensen, Mrs. Clayton, Mr. Clement, Mr. Clyburn, Mr. 
     Collins, Mr. Cook, Mr. Cooksey, Mrs. Cubin, Mr. Cummings, Mr. 
 Cunningham, Mr. Davis of Illinois, Mr. Deal of Georgia, Mr. DeFazio, 
 Mr. Deutsch, Mr. Dickey, Mr. Dooley of California, Mr. Doolittle, Mr. 
Doyle, Mr. Dreier, Mr. Duncan, Ms. Dunn, Mr. Ehlers, Mrs. Emerson, Mr. 
English, Ms. Eshoo, Mr. Ewing, Mr. Farr of California, Mr. Filner, Mr. 
 Ford, Mr. Fossella, Mr. Franks of New Jersey, Mr. Gillmor, Mr. Goode, 
 Mr. Goodling, Mr. Gordon, Mr. Green of Texas, Mr. Gutknecht, Mr. Hall 
of Texas, Mr. Hastings of Washington, Mr. Herger, Mr. Hill of Montana, 
 Mr. Hobson, Mr. Hoekstra, Mr. Holden, Ms. Hooley of Oregon, Mr. Horn, 
  Mr. Houghton, Mr. Inslee, Mr. Istook, Mr. Jackson of Illinois, Mr. 
    Jefferson, Ms. Eddie Bernice Johnson of Texas, Mrs. Johnson of 
Connecticut, Mr. Kanjorski, Mr. Kasich, Mrs. Kelly, Ms. Kikpatrick, Mr. 
   Kind, Mr. Kingston, Mr. Knollenberg, Mr. Kolbe, Mr. Lampson, Mr. 
 Largent, Mr. Latham, Ms. Lee, Mr. Lewis of Kentucky, Mr. Linder, Mr. 
Lucas of Oklahoma, Mr. Luther, Ms. McCarthy of Missouri, Mr. McDermott, 
 Mr. McGovern, Mr. McIntosh, Mr. Maloney of Connecticut, Mr. Manzullo, 
    Mr. Markey, Mr. Martinez, Mr. Matsui, Mrs. Meek of Florida, Mr. 
    Metcalf, Mr. Mica, Ms. Millender-McDonald, Mr. George Miller of 
  California, Mr. Moakley, Mr. Moran of Virginia, Mrs. Morella, Mrs. 
Myrick, Mrs. Napolitano, Mr. Neal of Massachusetts, Mr. Nethercutt, Mr. 
 Norwood, Mr. Nussle, Mr. Olver, Mr. Packard, Mr. Pallone, Mr. Pastor, 
 Mr. Peterson of Minnesota, Mr. Pickering, Mr. Pombo, Mr. Pomeroy, Mr. 
  Price of North Carolina, Mr. Quinn, Mr. Radanovich, Mr. Rahall, Mr. 
 Rangel, Mr. Reynolds, Ms. Rivers, Mr. Rohrabacher, Ms. Ros-Lehtinen, 
   Mr. Rush, Mr. Salmon, Ms. Sanchez, Mr. Sanders, Mr. Sanford, Mr. 
 Scarborough, Mr. Schaffer, Mr. Sessions, Mr. Shays, Mr. Sherman, Mr. 
Shimkus, Mr. Smith of Washington, Mr. Smith of New Jersey, Mr. Souder, 
  Ms. Stabenow, Mr. Stark, Mr. Sununu, Mr. Tanner, Mrs. Tauscher, Mr. 
   Tauzin, Mr. Taylor of North Carolina, Mr. Thomas, Mr. Thompson of 
Mississippi, Mr. Thune, Mr. Tiahrt, Mr. Tierney, Mr. Upton, Mr. Vento, 
   Mr. Walsh, Mr. Wamp, Mr. Watkins, Mr. Weller, Mr. Whitfield, Mr. 
 Wicker, Ms. Woolsey, and Mr. Wu) introduced the following bill; which 
was referred to the Committee on the Judiciary, and in addition to the 
 Committee on International 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 123 the following new chapter:

        ``CHAPTER 125--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', and `judge of competent jurisdiction' have the 
        meanings given those terms in section 2510 of this title;
            ``(2) the term `decrypt' means to retransform or unscramble 
        encrypted data, including communications, to its readable form;
            ``(3) the terms `encrypt', `encrypted', and `encryption' 
        mean the scrambling of wire communications, electronic 
        communications, or electronically stored 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 
        communications or information;
            ``(4) the term `key' means the variable information used in 
        a mathematical formula, code, or algorithm, or any component 
        thereof, used to decrypt wire communications, electronic 
        communications, or electronically stored information, that has 
        been encrypted; and
            ``(5) the term `key recovery information' means information 
        that would enable obtaining the key of a user of encryption;
            ``(6) the term `plaintext access capability' means any 
        method or mechanism which would provide information in readable 
        form prior to its being encrypted or after it has been 
        decrypted;
            ``(7) 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) General Prohibition.--Neither the Federal Government nor a 
State may require that, or condition any approval on a requirement 
that, a key, access to a key, key recovery information, or any other 
plaintext access capability be--
            ``(1) built into computer hardware or software for any 
        purpose;
            ``(2) given to any other person, including a Federal 
        Government agency or an entity in the private sector that may 
        be certified or approved by the Federal Government or a State 
        to receive it; or
            ``(3) retained by the owner or user of an encryption key or 
        any other person, other than for encryption products for use by 
        the Federal Government or a State.
    ``(b) Prohibition on Linkage of Different Uses of Encryption.--
Neither the Federal Government nor a State may--
            ``(1) require the use of encryption products, standards, or 
        services used for confidentiality purposes, as a condition of 
        the use of such products, standards, or services for 
        authenticity or integrity purposes; or
            ``(2) require the use of encryption products, standards, or 
        services used for authenticity or integrity purposes, as a 
        condition of the use of such products, standards, or services 
        for confidentiality purposes.
    ``(c) Exception for Access for Law Enforcement Purposes.--
Subsection (a) shall not affect the authority of any investigative or 
law enforcement officer, or any member of the intelligence community as 
defined in section 3 of the National Security Act of 1947 (50 U.S.C. 
401a), acting under any law in effect on the effective date of this 
chapter, to gain access to encrypted communications or information.
``Sec. 2805. Unlawful use of encryption in furtherance of a criminal 
              act
    ``(a) Encryption of Incriminating Communications or Information 
Unlawful.--Any person who, in the commission of a felony under a 
criminal statute of the United States, knowingly and willfully encrypts 
incriminating communications or information relating to that felony 
with the intent to conceal such communications or information for the 
purpose of avoiding detection by law enforcement agencies or 
prosecution--
            ``(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) Use of Encryption Not a Basis for Probable Cause.--The use of 
encryption by any person shall not be the sole basis for establishing 
probable cause with respect to a criminal offense or a search 
warrant.''.
    (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 123 the following new item:

``125. 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) Certain Consumer Products, Computers, and Related 
Equipment.--
            ``(1) General rule.--Subject to paragraphs (2) and (3), the 
        Secretary shall have exclusive authority to control exports of 
        all computer hardware, software, computing devices, customer 
        premises equipment, communications network equipment, 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.--After a one-time, 15-
        day technical review by the Secretary, no export 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 computer hardware or software or 
                computing device, including computer hardware or 
                software or computing devices with encryption 
                capabilities--
                            ``(i) that is generally available;
                            ``(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
                            ``(iii) that is used in a commercial, off-
                        the-shelf, consumer product or any component or 
                        subassembly designed for use in such a consumer 
                        product available within the United States or 
                        abroad which--
                                    ``(I) includes encryption 
                                capabilities which are inaccessible to 
                                the end user; and
                                    ``(II) is not designed for military 
                                or intelligence end use;
                    ``(B) any computing device solely because it 
                incorporates or employs in any form--
                            ``(i) computer hardware or software 
                        (including computer hardware or software with 
                        encryption capabilities) that is exempted from 
                        any requirement for a license under 
                        subparagraph (A); or
                            ``(ii) computer hardware or software that 
                        is no more technically complex in its 
                        encryption capabilities than computer hardware 
                        or software that is exempted from any 
                        requirement for a license under subparagraph 
                        (A) but is not designed for installation by the 
                        purchaser;
                    ``(C) any computer hardware or software or 
                computing device solely on the basis that it 
                incorporates or employs in any form interface 
                mechanisms for interaction with other computer hardware 
                or software or computing devices, including computer 
                hardware and software and computing devices with 
                encryption capabilities;
                    ``(D) any computing or telecommunication device 
                which incorporates or employs in any form computer 
                hardware or software encryption capabilities which--
                            ``(i) are not directly available to the end 
                        user; or
                            ``(ii) limit the encryption to be point-to-
                        point from the user to a central communications 
                        point or link and does not enable end-to-end 
                        user encryption;
                    ``(E) technical assistance and technical data used 
                for the installation or maintenance of computer 
                hardware or software or computing devices with 
                encryption capabilities covered under this subsection; 
                or
                    ``(F) any encryption hardware or software or 
                computing device not used for confidentiality purposes, 
                such as authentication, integrity, electronic 
                signatures, nonrepudiation, or copy protection.
            ``(3) Computer hardware or software or computing devices 
        with encryption capabilities.--After a one-time, 15-day 
        technical review by the Secretary, the Secretary shall 
        authorize the export or reexport of computer hardware or 
        software or computing devices with encryption capabilities for 
        nonmilitary end uses in any country--
                    ``(A) to which exports of computer hardware or 
                software or computing devices of comparable strength 
                are permitted for use by financial institutions not 
                controlled in fact by United States persons, unless 
                there is substantial evidence that such computer 
                hardware or software or computing devices 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 any 
                        authorization by the United States that may be 
                        required under this Act; or
                    ``(B) if the Secretary determines that a computer 
                hardware or software or computing device offering 
                comparable security is commercially available outside 
                the United States from a foreign supplier, without 
                effective restrictions.
            ``(4) Definitions.--As used in this subsection--
                    ``(A)(i) the term `encryption' means the scrambling 
                of wire communications, electronic communications, or 
                electronically stored 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 
communications or information;
                    ``(ii) the terms `wire communication' and 
                `electronic communication' have the meanings given 
                those terms in section 2510 of title 18, United States 
                Code;
                    ``(B) the term `generally available' means, in the 
                case of computer hardware or computer software 
                (including computer hardware or computer software with 
                encryption capabilities)--
                            ``(i) computer hardware or computer 
                        software that is--
                                    ``(I) distributed through the 
                                Internet;
                                    ``(II) 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;
                                    ``(III) preloaded on computer 
                                hardware or computing devices that are 
                                widely available for sale to the 
                                public; or
                                    ``(IV) assembled from computer 
                                hardware or computer software 
                                components that are widely available 
                                for sale to the public;
                            ``(ii) not designed, developed, or tailored 
                        by the manufacturer for specific purchasers or 
                        users, except that any such purchaser or user 
                        may--
                                    ``(I) supply certain installation 
                                parameters needed by the computer 
                                hardware or software to function 
                                properly with the computer system of 
                                the user or purchaser; or
                                    ``(II) select from among options 
                                contained in the computer hardware or 
                                computer software; and
                            ``(iii) with respect to which the 
                        manufacturer of that computer hardware or 
                        computer software--
                                    ``(I) intended for the user or 
                                purchaser, including any licensee or 
                                transferee, to install the computer 
                                hardware or software and has supplied 
                                the necessary instructions to do so, 
                                except that the manufacturer of the 
                                computer hardware or software, or any 
                                agent of such manufacturer, may also 
                                provide telephone or electronic mail 
                                help line services for installation, 
                                electronic transmission, or basic 
                                operations; and
                                    ``(II) the computer hardware or 
                                software is designed for such 
                                installation by the user or purchaser 
                                without further substantial support by 
                                the manufacturer;
                    ``(C) 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;
                    ``(D) the term `computer hardware' includes, but is 
                not limited to, computer systems, equipment, 
                application-specific assemblies, smart cards, modules, 
                integrated circuits, and printed circuit board 
                assemblies;
                    ``(E) the term `customer premises equipment' means 
                equipment employed on the premises of a person to 
                originate, route, or terminate communications;
                    ``(F) the term `technical assistance' includes 
                instruction, skills training, working knowledge, 
                consulting services, and the transfer of technical 
                data;
                    ``(G) the term `technical data' includes 
                blueprints, plans, diagrams, models, formulas, tables, 
                engineering designs and specifications, and manuals and 
                instructions written or recorded on other media or 
                devices such as disks, tapes, or read-only memories; 
                and
                    ``(H) the term `technical review' means a review by 
                the Secretary of computer hardware or software or 
                computing devices with encryption capabilities, based 
                on information about the product's encryption 
                capabilities supplied by the manufacturer, that the 
                computer hardware or software or computing device works 
                as represented.''.
    (b) No Reinstatement of Export Controls on Previously Decontrolled 
Products.--Any encryption product not requiring an export license as of 
the date of enactment of this Act, as a result of administrative 
decision or rulemaking, shall not require an export license on or after 
such date of enactment.
    (c) Applicability of Certain Export Controls.--
            (1) In general.--Nothing in this Act shall limit the 
        authority of the President under the International Emergency 
        Economic Powers Act, the Trading with the enemy Act, or the 
        Export Administration Act of 1979, to--
                    (A) prohibit the export of encryption products to 
                countries that have been determined to repeatedly 
                provide support for acts of international terrorism; or
                    (B) impose an embargo on exports to, and imports 
                from, a specific country.
            (2) Specific denials.--The Secretary may prohibit the 
        export of specific encryption products to an individual or 
        organization in a specific foreign country identified by the 
        Secretary, if the Secretary determines that there is 
        substantial evidence that such encryption products will be used 
        for military or terrorist end-use.
            (3) Definition.--As used in this subsection and subsection 
        (b), the term ``encryption'' has the meaning given that term in 
        section 17(g)(5)(A) of the Export Administration Act of 1979, 
        as added by subsection (a) of this section.
    (d) 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.

SEC. 4. EFFECT ON LAW ENFORCEMENT ACTIVITIES.

    (a) Collection of Information by Attorney General.--The Attorney 
General shall compile, and maintain in classified form, data on the 
instances in which encryption (as defined in section 2801 of title 18, 
United States Code) has interfered with, impeded, or obstructed the 
ability of the Department of Justice to enforce the criminal laws of 
the United States.
    (b) Availability of Information to the Congress.--The information 
compiled under subsection (a), including an unclassified summary 
thereof, shall be made available, upon request, to any Member of 
Congress.
                                 <all>