[Congressional Record Volume 142, Number 28 (Tuesday, March 5, 1996)]
[Senate]
[Pages S1516-S1526]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. LEAHY (for himself, Mr. Burns, Mr. Dole, Mr. Pressler, and
Mrs. Murray):
S. 1587. A bill to affirm the rights of Americans to use and sell
encryption products, to establish privacy standards for voluntary
escrowed systems, and for other purposes; to the Committee on the
Judiciary.
The Encrypted Communications Privacy Act of 1996
Mr. LEAHY. Mr. President, I am joined today by Senators Burns, Dole,
Pressler, and Murray in introducing a bill that is pro-business, pro-
jobs and pro-privacy.
The Encrypted Communications Privacy Act of 1996 would enhance the
global competitiveness of our high-technology industries, protect the
high-paying good jobs in those industries and maximize the choices in
encryption technology available for businesses and individuals to
protect the privacy, confidentiality and security of their computer,
telephone, and other wire and electronic communications.
The guiding principle for this bill can be summed up in one sentence:
Encryption is good for American business and good business for
Americans.
FBI Director Louis Freeh testified last week at a hearing on economic
espionage and quoted Secretary of State Warren Christopher as saying
that ``Our national security is inseparable from our economic
security.'' I could not agree more. Yet, American businesses are
suffering a double blow from our current encryption policies. First,
American firms lose billions of dollars each year due to the theft of
proprietary economic information, which could be better protected if
strong encryption were more widely used. Second, government export
restrictions tie the hands of American high-technology businesses by
barring the export of strong encryption technology. The size of these
combined losses makes encryption one of the critical issues facing
American businesses today.
Moreover, the increasing use of and dependency on networked computers
by Americans to obtain critical medical services, to conduct research,
to be entertained, to go shopping and to communicate with friends and
business associates, raises special concerns about the privacy and
confidentiality of their computer transmissions. I have long been
concerned about these issues, and have worked over the past decade to
create a legal structure to foster privacy and security for our wire
and electronic communications. Encryption technology provides an
effective way to ensure that only the people we choose can read our
communications.
A leading encryption expert, Matt Blaze, told me in a recent letter
that our current regulations governing the use and export of encryption
are having a ``deleterious effect on our country's ability to develop a
reliable and trustworthy information infrastructure.'' It is time for
Congress to take steps to put our national encryption policy on the
right course.
The Encrypted Communications Privacy Act would accomplish three
goals:
First, the bill encourages the use of encryption by legislatively
confirming that Americans have the freedom to use and sell here in the
United States any encryption technology that they feel is most
appropriate to meet their privacy and security needs. The bill bars any
government-mandated use of any particular encryption system, such as a
key escrow encryption system.
Second, for those Americans who choose to use a key escrow encryption
method, the bill establishes privacy standards for key holders and
stringent procedures for how law enforcement can obtain access to
decoding keys and decryption assistance. These standards would subject
key holders to criminal and civil liability if they released the keys
or divulged the identity and information about the user of the
encryption system, without legal authorization. Commenting on these
provisions, Bruce Schneir, who has literally written the textbook on
encryption, said in a recent letter to me that the bill ``recognizes
the special obligations of keyholders to be vigilant in safeguarding
the information entrusted to them, without imposing hurtles on the use
of cryptography.''
[[Page S1517]]
Finally, the bill loosens export restrictions on encryption products.
Under the bill, it would be lawful for American companies to export
high-technology products with encryption capabilities when comparable
encryption capabilities are available from foreign suppliers, and
generally available encryption software, including mass market products
and encryption that is in the public domain. According to Mr. Schneir,
the bill ``removes the strangle-hold that has encumbered the
development of mass-market security solutions'' which are so vital to
the development of our information infrastructure.
Senator Murray took a leading role in the last Congress on reforming
our export restrictions on encryption, and I commend her for continuing
to give this important issue her committed attention again in this
Congress.
Current export restrictions allow the export of primarily weak
encryption software programs. So weak, in fact, that a January 1996
report by an ad hoc group of world-renowned cryptographers and computer
scientists estimated that it would take a pedestrian hacker a matter of
hours to break and a foreign intelligence agency a matter of
nanoseconds to break. No wonder that foreign buyers of encryption
products are increasingly looking elsewhere for strong security. This
hurts the competitiveness of our high-technology industry.
A recent report by the Computer Systems Policy Project, which is a
group of major American computer companies estimated that U.S.
companies stand to lose between $30 and $60 billion in revenues and
over 200,000 of high-technology jobs by the year 2000 because U.S.
companies are handicapped in the global market by outdated export
restrictions.
Even the Commerce Department reported in January that U.S. export
controls may have a ``negative effect on U.S. competitiveness'' and
``may discourage'' the use of strong encryption domestically since
manufacturers want to make only one product for export and for use
here.
Although American companies account for almost 75 percent of the
global market for prepackaged software, the rest of the world is
competing strongly in the market for encryption software. Shortsighted
government policy is holding back American business. Almost 2 years
ago, I chaired a hearing of the Judiciary Subcommittee on Technology
and the Law on the administration's Clipper Chip key escrow encryption
program. I heard testimony about 340 foreign encryption products that
were available worldwide, 155 of them employing encryption in a
strength that American firms were prohibited from exporting.
In 2 short years, those numbers have increased. According to a survey
of cryptographic products conducted by Trusted Information System, as
of December 1995, 497 foreign products from 28 countries were available
with encryption security. Almost 200 of these foreign products used
strong encryption that American companies are barred from selling
abroad. This study draws the obvious conclusion that ``As a result,
U.S. Government restrictions may be succeeding only in crippling a
vital American industry's exporting ability.''
At the Clipper Chip hearing I chaired in 1994, I heard a number of
reports about American companies losing business opportunities due to
U.S. export restrictions. One data security company reported that
despite its superior system, it had been unable to respond to requests
from NATO and foreign telecommunications companies because it cannot
export the encryption they demanded. This cost this single American
company millions in foregone business. Another major computer company
lost two sales in Western Europe in a single year totaling about $80
million because the file and data encryption in the integrated system
they offered was not exportable.
Our current export restrictions on encryption technology are fencing
off the global marketplace and hurting the competitiveness of this part
of our high-technology industries. While national and domestic security
concerns must weigh heavily, we need to do a better job of balancing
these concerns with American business' need for encryption and the
economic opportunities for our high-technology industries that
encryption technology provides.
American businesses are not only suffering lost sales because of our
current export restrictions, but are also suffering staggering losses
due to economic espionage. FBI Director Freeh testified that the White
House Office of Science and Technology Policy puts the amount of that
loss at $100 billion per year. At a hearing last week on economic
espionage, we heard from one witness who had to close down his software
company, with a loss of 25 jobs, after China bribed an employee to
steal the source code for the company's software.
We have bills pending before Congress to enact new criminal laws to
punish people who steal trade secrets or other proprietary information
and who break into computers to steal sensitive information. But new
criminal laws are not the whole answer. Criminal laws often only come
into play too late, after the theft has occurred or the injury
inflicted.
We must encourage American firms to take preventive measures to
protect their vital economic information. That is where encryption
comes in. Just as we have security systems to lock up our offices and
file drawers, we need strong encryption systems to protect the security
and confidentiality of business information.
The Computer Systems Policy Project estimates that, without strong
encryption, financial losses by the year 2000 from breaches of computer
security systems to be from $40 to $80 billion. Unfortunately, some of
these losses are already occurring. One U.S.-based manufacturer is
quoted in the Project's report, saying:
We had a multi-year, multi-billion dollar contract stolen
off our P.C. (while bidding in a foreign country). Had it
been encrypted, [the foreign competitor] could not have used
it in the bidding time frame.
New technologies present enormous opportunities for Americans, but we
must strive to safeguard our privacy if these technologies are to
prosper in this information age. Otherwise, in the service of law
enforcement and intelligence needs, we will dampen any enthusiasm
Americans may have for taking advantage of the new technologies.
I look forward to working with my colleagues on this important
matter, and ask unanimous consent that the bill, a summary of the bill,
and three letters of support from Matt Blaze, Bruce Schneir, and
Business Software Alliance, be included in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1587
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 1996''.
SEC. 2. PURPOSE.
It is the purpose of this Act--
(1) to ensure that Americans are able to have the maximum
possible choice in encryption methods to protect the
security, confidentiality, and privacy of their lawful wire
or electronic communications; and
(2) to establish privacy standards for key holders who are
voluntarily entrusted with the means to decrypt such
communications, and procedures by which investigative or law
enforcement officers may obtain assistance in decrypting such
communications.
SEC. 3. FINDINGS.
The 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 citizens' 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 conducting their 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 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,
[[Page S1518]]
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 lawfully to use whatever
particular encryption techniques, technologies, programs, or
products developed in the marketplace they desire in order to
interact electronically worldwide in a secure, private, and
confidential manner;
(10) American companies should be free to compete and to
sell encryption technology, programs, and products;
(11) there is a need to develop a national encryption
policy that advances the development of the national and
global information infrastructure, and preserves Americans'
right to privacy and the Nation's public safety and national
security;
(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 or electronic communications;
(13) the Congress and the American people have recognized
the need to balance the right to privacy and the protection
of the public safety and national security;
(14) the Congress has permitted lawful electronic
surveillance by investigative or law enforcement officers
only upon compliance with stringent statutory 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 are voluntarily
entrusted with the means to decrypt wire or electronic
communications, including such communications in electronic
storage.
SEC. 4. FREEDOM TO USE ENCRYPTION.
(a) Lawful Use of Encryption.--It shall be lawful for any
person within any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory
or possession of the United States, and by United States
persons in a foreign country to use any encryption,
regardless of encryption algorithm selected, encryption key
length chosen, or implementation technique or medium used
except as provided in this Act and the amendments made by
this Act or in any other law.
(b) 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 escrow function; or
(3) limit or affect the ability of any person who chooses
to use encryption with a key escrow function not to use a key
holder.
SEC. 5. ENCRYPTED WIRE AND ELECTRONIC COMMUNICATIONS.
(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 COMMUNICATIONS
``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.
``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 same meanings given such terms in section
2510 of this title;
``(2) the term `encryption' means the scrambling of wire or
electronic communications using mathematical formulas or
algorithms in order to preserve the confidentiality,
integrity or authenticity and prevent unauthorized recipients
from accessing or altering such communications;
``(3) the term `key holder' means a person located within
the United States (which may, but is not required to, be a
Federal agency) who is voluntarily entrusted by another
independent person with the means to decrypt that person's
wire or electronic communications for the purpose of
subsequent decryption of such communications;
``(4) the term `decryption key' means the variable
information used in a mathematical formula, code, or
algorithm, or any component thereof, used to decrypt wire or
electronic communications that have been encrypted; and
``(5) the term `decryption assistance' means providing
access, to the extent possible, to the plain text of
encrypted wire or electronic communications.
``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 its possession or control or
provide decryption assistance--
``(1) with the lawful consent of the person whose key is
being held or managed by the key holder;
``(2) as may be necessarily incident to the holding or
management of the key by the key holder; or
``(3) to investigative or law enforcement officers
authorized by law to intercept wire or electronic
communications under chapter 119, to obtain access to stored
wire and electronic communications and transactional records
under chapter 121, or to conduct electronic surveillance, as
defined in section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801), upon compliance
with subsection (c) of this section.
``(c) Requirements for Release of Decryption Key or
Provision of Decryption Assistance to Investigative or Law
Enforcement Officer.--
``(1) Contents of wire and electronic communications.--A
key holder is authorized to release a decryption key or
provide decryption assistance to an investigative or law
enforcement officer authorized by law to conduct electronic
surveillance under chapter 119, only if--
``(A) the key holder is given--
``(i) a court order signed by a judge of competent
jurisdiction directing such release or assistance; or
``(ii) a certification in writing by a person specified in
section 2518(7) or the Attorney General stating that--
``(I) no warrant or court order is required by law;
``(II) all requirements under section 2518(7) have been
met; and
``(III) the specified release or assistance is required;
``(B) the order or certification under paragraph (A)--
``(i) specifies the decryption key or decryption assistance
which is being sought; and
``(ii) identifies the termination date of the period for
which release or assistance has been authorized; and
``(C) in compliance with an order or certification under
subparagraph (A), the key holder shall provide only such key
release or decryption assistance as is necessary for access
to communications covered by subparagraph (B).
``(2) Stored wire and electronic communications.--(A) A key
holder is authorized to release a decryption key or provide
decryption assistance to an investigative or law enforcement
officer authorized by law to obtain access to stored wire and
electronic communications and transactional records under
chapter 121, only if the key holder is directed to give such
assistance pursuant to the same lawful process (court
warrant, order, subpoena, or certification) used to obtain
access to the stored wire and electronic communications and
transactional records.
``(B) The notification required under section 2703(b)
shall, in the event that encrypted wire or electronic
communications were obtained from electronic storage, include
notice of the fact that a key to such communications was or
was not released or decryption assistance was or was not
provided by a key holder.
``(C) In compliance with the lawful process under
subparagraph (A), the key holder shall provide only such key
release or decryption assistance as is necessary for access
to the communications covered by such lawful process.
``(3) Use of key.--(A) An investigative or law enforcement
officer to whom a key has been released under this subsection
may use the key only in the manner and for the purpose and
duration that is expressly provided for in the court order or
other provision of law authorizing such release and use, not
to exceed the duration of the electronic surveillance for
which the key was released.
``(B) On or before completion of the authorized release
period, the investigative or law enforcement officer to whom
a key has been released shall destroy and not retain the
released key.
``(C) The inventory required to be served pursuant to
section 2518(8)(d) on persons named in the order or the
application under section 2518(7)(b), and such other parties
to intercepted communications as the judge may determine, in
the interest of justice, shall, in the event that encrypted
wire or electronic communications were intercepted, include
notice of the fact that during the period of the order or
extensions thereof a key to, or decryption assistance for,
any encrypted wire or electronic communications of the person
or party intercepted was or was not provided by a key holder.
``(4) Nondisclosure of release.--No key holder, officer,
employee, or agent thereof shall disclose the key release or
provision of decryption assistance pursuant to subsection
(b), except as may otherwise be required by legal process and
then only after prior notification to the Attorney General or
to the principal prosecuting attorney of a State or any
political subdivision of a State, as may be appropriate.
``(d) Records or Other Information Held by Key Holders.--A
key holder, shall not disclose a record or other information
(not including the key) pertaining to any person whose key is
being held or managed by the key holder, except--
``(1) with the lawful consent of the person whose key is
being held or managed by the key holder; or
``(2) to an investigative or law enforcement officer
pursuant to a subpoena authorized
[[Page S1519]]
under Federal or State law, court order, or lawful process.
An investigative or law enforcement officer receiving a
record or information under paragraph (2) is not required to
provide notice to the person to whom the record or
information pertains. 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) of this section 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 under
this subparagraph; or
``(B) a fine under this title or imprisonment for not more
than 2 years, or both, for any 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 subsections (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 whichever is 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 not be commenced later than 2 years after the date upon
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 court warrant
or order, grand jury or trial subpoena, or 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 to obtain access to
decryption keys or decryption assistance.
``(b) Requirements.--The Director of the Administrative
Office of the United States Courts shall include as part of
the report transmitted to the 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 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 of information
in furtherance of a felony which may be prosecuted in a court
of the United States, to an investigative or law enforcement
officer 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 of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, and any territory or possession
of the United States, 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, subject
to paragraphs (2), (3), and (4), the Secretary of Commerce
shall have exclusive authority to control exports of all
computer hardware, 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 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
(IEEPA) (but only to the extent that the authority of the
IEEPA is not exercised to extend controls imposed under the
Export Administration Act of 1979), for the export or
reexport of--
``(A) any software, including software with encryption
capabilities, that is--
``(i) generally available, as is, and designed for
installation by the purchaser; or
``(ii) in the public domain or publicly available 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
of Commerce 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 requisite United States
authorization.
``(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 from a foreign supplier without effective
restrictions outside the United States.
``(5) Definitions.--As used in this subsection--
``(A) the term `generally available' means, in the case of
software (including software with encryption capabilities),
software that is widely offered for sale, license, or
transfer including, but not limited to, over-the-counter
retail sales, mail order transactions, phone order
transactions, electronic distribution, or sale on approval;
``(B) 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 company 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;
``(C) the term `is designed for installation by the
purchaser' means, in the case of software (including software
with encryption capabilities)--
``(i) the software company 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 company may also provide telephone
help-line services for software installation, electronic
transmission, or basic operations; and
``(ii) that the software program is designed for
installation by the purchaser without further substantial
support by the supplier;
``(D) 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
``(E) 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) Technical 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 communications.........2801''.....
SEC. 6. 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, or 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; or
(3) access an electronic communication system used
exclusively by a foreign power or agent of a foreign power as
defined by the Foreign Intelligence Surveillance Act of 1978.
____
Encrypted Communications Privacy Act of 1996--Summary
Sec. 1. Short Title. The Act many be cited as the
``Encrypted Communications Privacy Act of 1996.''
Sec. 2. Purpose. The Act would ensure that Americans have
the maximum possible choice in encryption methods to protect
the
[[Page S1520]]
security, confidentiality and privacy of their lawful wire
and electronic communications. For those Americans who choose
an encryption method in which another person, called a ``key
holder,'' is voluntarily entrusted with the decryption key,
the Act would establish privacy standards for the key holder,
and procedures for law enforcement officers to follow to
obtain assistance from the key holder in decrypting encrypted
communications.
Sec. 3. Findings. The Act enumerates fifteen congressional
findings, including that a secure, private and trusted
national and global information infrastructure is essential
to promote citizens' privacy and meet the needs of both
American citizens and businesses, that encryption technology
widely available worldwide can help meet those needs, that
Americans should be free to use, and American businesses free
to compete and sell, encryption technology, programs and
products, and that there is a need to develop a national
encryption policy to advance the global information
infrastructure and preserve Americans' right to privacy and
the Nation's public safety and national security.
Sec. 4. Freedom to Use Encryption
(a) Lawful Use of Encryption. The Act legislatively
confirms current practice in the United States that any
person in this country may lawfully use any encryption
method, regardless of encryption algorithm, key length or
implementation selected. The Act thereby prohibits any
government-mandated use of any particular encryption system,
such as a key escrow encryption system.
The Act further makes lawful the use of any encryption
method by United States persons in a foreign country. This
provision is consistent with, though broader than, the
Department of State's new personal use exemption published in
the Federal Register on February 16, 1996, that permits the
export of cryptographic products by U.S. citizens and
permanent residents who have the need to temporarily export
the cryptographic products when leaving the U.S. for brief
periods of time. For example, under this new exemption, U.S.
citizens traveling abroad will be able to take their laptop
computers containing copies of Lotus Notes software, many
versions of which contain an encryption program otherwise not
exportable.
(b) General Constructions. Nothing in the Act is to be
construed to require the use of encryption, a key escrow
encryption system, or a key holder if a person chooses to use
a key escrow encryption system.
Sec. 5. Encrypted wire and electronic communications. This
section of the Act adds a new chapter 122, entitled
``Encrypted Wire and Electronic Communications,'' to title 18
of the United States Code to establish privacy standards for
key holders and to set forth procedures that law enforcement
officers must follow to obtain decryption assistance from key
holders.
(a) In General. New chapter 122 has five sections.
Sec. 2801. Definitions. Generally, the terms used in the
new chapter have the same meanings as in the federal wiretap
statute in 18 U.S.C. Sec. 2510. Definitions are provided for
``encryption'', ``key holder'', ``decryption key'', and
``decryption assistance''. A ``key holder'' may, but is not
required to be, a Federal agency.
This chapter applies only to wire or electronic
communications and communications in electronic storage, as
defined in 18 U.S.C. Sec. 2510, and not to stored electronic
data. For example, encrypted electronic mail messages,
encrypted telephone conversations, encrypted facsimile
transmissions, encrypted computer transmissions and encrypted
file transfers over the Internet would be covered, but not
encrypted data merely stored on computers.
Sec. 2802. Prohibited acts by key holders
(a) Unauthorized release of key.--Key holders will be
subject to both criminal and civil liability for the
unauthorized release of decryption keys or providing
unauthorized decryption assistance.
(b) Authorized release of key.--Key holders are authorized
to release decryption keys or provide decryption assistance
with the consent of the key owner, as may be necessary for
the holding or management of the key, or to investigative or
law enforcement officers upon compliance with the procedures
set forth in subsection (c).
(c) Requirements for release of decryption key to
investigative or law enforcement officer.--To obtain access
to a decryption key or decryption assistance from a key
holder, an investigative or law enforcement officer must
present to the key holder the same form of lawful process
used to obtain access to the encrypted content. For example,
to obtain the decryption key to, or decryption assistance
for, an encrypted telephone conversation that is the subject
of a court-ordered wiretap under 18 U.S.C. Sec. 2518, a law
enforcement agent must present a court order to the key
holder to obtain the decoding key. Likewise, to obtain the
decryption key to, or decryption assistance for, an encrypted
stored wire or electronic communication, a law enforcement
officer must present a court warrant, order, subpoena or
certification, depending upon what process was used to
obtain access to the stored communication.
Key holders may only provide the minimal key release or
decryption assistance needed to access the particular
communications specified by court order or other legal
process. Released keys or other decryption assistance may
only be used in the manner and for the purpose and duration
expressly provided by court order or other legal process.
A key holder who fails to provide the decryption key or
decryption assistance called for in the court order, subpoena
or other lawful process may be penalized under current
contempt or obstruction laws.
(d) Records or other information held by key holders.--Key
holders are prohibited from disclosing records or other
information (not including decryption keys) pertaining to key
owners, except with the owner's consent or to an
investigative or law enforcement officer, pursuant to a
subpoena, court order or other lawful process.
(e) Criminal penalties.--Key holders who violate this
section for a tortious, malicious or an illegal purpose, or
for direct or indirect commercial advantage or private
commercial gain, will be subject to a fine and up to 1 year
imprisonment for a first offense, and fine and up to 2 years'
imprisonment for a second offense. Other reckless and
intentional violations would subject the key holder to a fine
of up to $5,000 and up to 6 months' imprisonment.
(f) Civil damages.--Persons aggrieved by key holder
violations may sue for injunctive relief, and actual damages
or statutory damages of $5,000, whichever is greater.
(g) Defense.--A complete defense is provided if the
defendant acted in good faith reliance upon a court order,
warrant, grand jury or trial subpoena or statutory
authorization.
Sec. 2803. Reporting requirements. The Attorney General is
required to include in her report to the Administrative
Office of the U.S. Courts under 18 U.S.C. Sec. 2519(2), the
number of orders and extensions served on key holders to
obtain access to decryption keys or decryption assistance.
The Director of the Administrative Office of the U.S. Courts
is required to include this information, and the offenses for
which the orders were obtained, in the report to Congress
under 18 U.S.C. Sec. 2519(3).
Sec. 2804. Unlawful use of encryption to obstruct justice.
Persons who willfully use encryption in an effort and for the
purpose of obstructing, impeding, or prevent the
communication of information in furtherance of a federal
felony crime to a law enforcement officer, would be subject
to a fine and up to 5 years' imprisonment for a first
offense, and up to 10 years' imprisonment for a second or
subsequent offense.
Sec. 2805. Freedom to sell encryption products
(a) In general.--The Act, legislatively confirms that it is
lawful to sell any encryption, regardless of encryption
algorithm, key length or implementation used, domestically in
the United States or its territories.
(b) Control of exports by Secretary of Commerce.--
Notwithstanding any other law, the Act vests the Secretary of
Commerce with control of exports of hardware, software and
technology for information security, including encryption for
both communications and other stored data, except when the
hardware, software or technology is specifically designed or
modified for military use.
No export license may be required for encryption software
and hardware with encryption capabilities that is generally
available, including mass market products (i.e., those
generally available, sold ``as is'', and designed for
installation by the purchaser) or encryption in the public
domain and generally accessible. For example, no licenses
would be required for encryption products commercially
available without restriction and sold ``as is'', such as
Netscape's commercially available World Wide Web Browser,
which cannot be exported. Similarly, no license would be
required to export software and corresponding hardware placed
in the public domain and generally accessible, such as Phil
Zimmerman's Pretty Good Privacy program, which has been
distributed to the public free of charge via the Internet.
In addition, the Secretary of Commerce must authorize the
export of encryption software to commercial users in any
country to which exports of such software has been approved
for use by foreign financial institutions, except when there
is substantial evidence that the software will be diverted or
modified for military or terrorists' end-use or re-exported
without requisite U.S. authorization. Finally, the Secretary
of Commerce must authorize the export of computer hardware
with encryption capabilities if the Secretary determines that
a product with comparable security is commercially available
from foreign suppliers without effective restrictions outside
the United States.
Significantly, the government is authorized to continue
controls on countries that pose terrorism concerns, such as
Libya, Syria and Iran, or other embargoes countries, such as
Cuba and North Korea, pursuant to the Trading With the Enemy
Act or the International Emergency Economic Powers Act.
(b) Technical Amendment. The Act adds new chapter 122 and
the new title in the table of chapters in title 18 of the
United States Code.
Sec. 6. Intelligence activities. The Act does not authorize
the conduct of intelligence activities, nor affect the
conduct by Federal government officers or employees in
intercepting (1) encrypted or other official communications
of Federal executive branch or Federal contractors for
communications security purposes; (2) radio communications
between or among foreign powers or agents, as defined by the
Foreign Intelligence Surveillance Act (FISA); or (3)
electronic communication systems used exclusively by foreign
powers or agents, as defined by FISA.
____
[[Page S1521]]
Murray Hill, NJ,
March 1, 1996.
Hon. Patrick Leahy,
U.S. Senate.
Dear Senator Leahy: Thank you for introducing the Encrypted
Communications Privacy Act of 1996. As a member of the
computer security and cryptology research community, I have
observed firsthand the deleterious effect that the current
regulations governing the use and export of cryptography are
having on our country's ability to develop a reliable and
trustworthy information infrastructure. Your bill takes an
important first step toward creating regulations that reflect
the modern realities of this increasingly critical
technology.
Unlike previous government encryption initiatives such as
the technically-flawed and unworkable ``Clipper'' chip, your
bill re-affirms the role of the marketplace in providing
ordinary citizens and businesses with a full range of choices
for securing their private information. In particular by
freeing mass-market cryptographic software and hardware from
the burdensome export controls that govern the international
arms trade, the bill will help the American software industry
compete, for the first time, in the international market for
high-quality security products.
Law enforcement need not fear the widespread availability
of encryption; indeed, they should welcome and promote it.
Encryption thwarts electronic predators by preventing
unauthorized access to private data and computer systems, and
the use of strong cryptography to protect computer networks
is becoming as natural and necessary as the use of locks and
burglar alarms to protect our homes and businesses. While
criminals, too, might occasionally derive some advantage from
the use of cryptography, the benefits of widely-available
encryption technology overwhelmingly favor the honest user.
By recognizing that those who hold decryption keys on behalf
of others are in a special position of trust, your bill is
respectful of the privacy of law-abiding citizens without
introducing impediments to the government's ability to
investigate and prevent crime.
I have also examined the new provision designed to
discourage the use of cryptography by criminals in the
furtherance of a felony, and hope to see your carefully-
worded language reinforced by a narrow interpretation in the
courts, consistent with your intent.
Again, thank you for your continued leadership in this
area, and I look forward to doing whatever I can to help you
bring encryption regulations in line with the fast-changing
reality of this emerging technology.
Sincerely,
Matt Blaze.
____
March 1, 1996.
Hon. Patrick Leahy,
U.S. Senate.
Dear Senator Leahy. I would like to thank you for
introducing the Encrypted Communications Privacy Act. As a
member of the computer and information security research
community, I am keenly aware of the vital role of
cryptography in fostering the development of our information
infrastructure.
As the author of the book, ``Applied Cryptography'', I have
unusual insights into the absurdity of cryptography export
restrictions. It is not without irony that one may export my
book in paper format, but not electronically. Presumably no
rational person believes that the current restrictions
actually prevent the spread of cryptography. I believe you
recognize this, as evidenced from the strong stance taken in
your bill.
As the bill recognizes, we can no longer afford to hold on
to the obsolete notion that cryptography is the sole province
of government communications; the growth of modern networks
has irrevocably pushed it into the mainstream. I applaud your
leadership towards codifying these principles in a balanced
and responsible way. In particular, the bill:
Removes the regulatory strangle-hold that has encumbered
the development of mass-market security solutions; Recognizes
the futility of applying regulations intended to control the
international arms trade to even the most mundane and
commonly available software; Encourages public confidence in
encryption by allowing the marketplace to provide a full
range of choices for privacy and security needs; Recognizes
the special obligations of keyholders to be vigilant in
safeguarding the information entrusted to them, without
imposing hurtles on the use of cryptography; Allows the
United States to continue its leadership role as a
technological innovator; Acknowledges the pivotal role of
cryptography in electronic commerce.
I continue to have concerns that the new criminal
obstruction provision will discourage law abiding citizens
from using cryptography. I hope that legislative history and
further discussion will demonstrate the narrow intent of this
crime.
Overall, your bill takes very necessary strides towards
ensuring that the protections we take for granted in
traditional media keep pace with technology, and I commend
your efforts.
Sincerely,
Bruce Schneier.
____
Business Software Alliance,
Washington, DC, March 4, 1996,
Hon. Patrick J. Leahy,
Russell Senate Office Building,
Washington, DC.
Dear Senator Leahy: As President of the Business Software
Alliance (BSA), I am writing to express our strong support
for the Encryption Communications Privacy Act of 1996 which I
understand you will introduce tomorrow. BSA represents the
leading publishers of software for personal computers and the
client server environment including Adobe, Autodesk, Bentley,
Lotus Development, Microsoft, Novell, Sybase, Symantec and
the Santa Cruz Operation.
We have had an opportunity to review the legislation and
find it a significant step toward placing the U.S. software
industry on a level playing field with our foreign
competitors. Currently, we are only allowed to export weak
(40-bit) encryption. Your legislation would allow us to
export generally available software which offers security at
prevailing world levels. While many would prefer export
restrictions being lifted in their entirety, this legislation
at least would place us on an equal footing with our foreign
competitors which is critical to the continued success of the
U.S. software industry in the global market place.
As you well know, today, America's software industry is the
envy of the world. U.S. software companies hold an estimated
75% worldwide market share for mass market software with
exports accounting for more than one-half of revenues for our
companies. According to a 1993 study by Economists Inc., the
American mass market software industry was the fastest
growing industry in the U.S. between 1982 and 1992 and had
become larger than all but five manufacturing industries.
This translates into jobs here in the U.S.
The continued growth and success of our industry is
directly threatened by existing U.S. government export
controls. For that reason, our companies have consistently
made this one of its top policy issues. As importantly, the
availability of easy to use, affordable encryption will be
essential to the successful development of the Global
Information Infrastructure (GII). As more and more
transactions are being done on-line, consumers are
increasingly demanding software with strong encryption
capabilities. In two studies, 90% of the respondents believe
information security is important. In one study 37% of the
respondents said that they would consider purchasing foreign
software with otherwise less desirable features if that
software offered data security not available in a U.S.
program. Additionally, a recent study shows there are nearly
500 foreign encryption products from 28 countries currently
available. U.S. export restrictions simply put U.S. industry
at a competitive disadvantage. Your bill would address this
issue by allowing U.S. industry to export generally available
software with strong security features.
As you may know, the Administration has attempted to
address this issue with a ``64-bit key escrow encryption
proposal.'' Under that proposal, in order to be allowed to
export software with strong security features, U.S. industry
would be required to build a back door into the program with
a spare key held by a U.S. government certified agent. After
careful and serious deliberation by our members, we concluded
that the Administration's approach is fatally flawed and
cannot be the basis for progress in this area. We simply have
not found a market for such a product. Any resolution must be
market driven. Your bill takes a very different approach. It
reaffirms Americans right to chose the encryption they use,
either with key escrow or without. For those who chose
voluntarily to use key holders, your legislation provides
standards so that their privacy is not violated. Your
legislation allows the market to work. We wholeheartedly
endorse this market driven approach.
The digital information age and the Global Information
Infrastructure present opportunities and challenges to
computer users concerned about privacy at home and in their
businesses, as well as for the U.S. government. From that
point of view, we are all in a similar position. Information
security policies for the electronic world are fundamental to
the success of the GII and we are pleased to support your
legislation which is pro-market, pro-competition, pro-privacy
and pro-progress.
We look forward to working with you toward the enactment of
this legislation.
Sincerely,
Robert W. Holleyman II,
President.
Mrs. MURRAY. Mr. President, I am pleased to join Senator Leahy today
as an original cosponsor of the Encrypted Communications Privacy Act.
Senator Leahy is truly a leader on this issue, and I've had the
pleasure of working on encryption policy with him over the past 3
years. I'm excited to once again join him in this effort to make sense
out of our national export control policies, and to promote export
opportunities for American software and hardware producers.
As many of my colleagues know, with help from Congresswoman Cantwell
in the 103d Congress, I was able to persuade the administration to
study the extent to which U.S. companies are stymied by our country's
current encryption and export control policies.
The Department of Commerce released that report last month. And let
[[Page S1522]]
me just say that there are some findings in this report that we should
be aware of, and concerned about. For instance, the report acknowledges
there are tremendous international growth opportunities for software
exporters in the next 5 to 10 years. Unfortunately, the report also
finds that most U.S. companies don't pursue international sales because
our export control laws are too cost prohibitive.
Mr. President, there are legitimate national security concerns
underpinning the Export Administration Act. However, these outdated
laws are no longer relevant to the post-cold-war world we now lived in.
Today's national security controls should target those items that
really need to be controlled in order to maintain national security.
Simply, they should make better sense; it doesn't make sense to tell a
U.S. software producer they can't export a product that is already
widely available on the world market.
Senator Leahy's bill seeks a balanced approach to implementing
viable, safe, and secure encryption technology on both domestically
sold products and exported products. It protects our privacy concerns,
and it lays out the appropriate procedures law enforcement officials
should use when obtaining encrypted materials. And, most important, it
protects industry ingenuity and prohibits mandatory key escrow.
Mr. President, I introduced the Commercial Export Administration Act
in the 103d Congress. I am pleased Senator Leahy is incorporating my
language into his bill. My language reduces regulatory redtape and
makes it easier to export generally available mass-marketed commercial
software. Washington State is home to some of the most innovative
software producers in the world, and they are eager to export their
goods. Unfortunately, our export controls keep Washington State's
companies from penetrating the world market. Senator Leahy's bill,
however will fix this problem.
We are hearing a lot on the Presidential campaign trail about the
damage that comes from trade--how trade hurts our economy and our
workers. That's nonsense. My Washington State friends and neighbors
know full-well that trade is essential to our State's success. One out
of every five jobs in Washington State is trade related; and these are
highly skilled, family wage jobs that pay 15 percent higher than the
national average. Moreover, Washington State's small- and mid-sized
high-technology companies provided over 98,000 jobs in 1995.
Mr. President, I mention this because our bill will increase exports
and enable our high-technology companies to grow further. Higher growth
means more jobs--plain and simple. A recent study revealed that in 1995
U.S. exporters lost $60 billion in international sales, and it
estimates the industry will lose 200,000 potential jobs by the year
2000. Given the increase in international competition, we can no longer
afford to persist in holding U.S. companies back from potential world
sales.
This legislation makes good sense. First and foremost, it ensures
every American's right to use any appropriate encryption available on
the market. It also sets out necessary guidelines that should accompany
any policy regarding the use of key escrow. And finally, it paves the
way for new, streamlined export policies.
Mr. President, this legislation is badly needed, and I urge my
colleagues to join Senator Leahy and me in supporting it.
______
By Mr. STEVENS:
S. 1588. A bill to authorize the Secretary of Transportation to issue
a certificate of documentation and coastwise trade endorsement for the
vessel Kalypso; to the Committee on Commerce, Science, and
Transportation.
JONES ACT WAIVER LEGISLATION
Mr. STEVENS. Mr. President, today I am introducing a bill to
provide a certificate of documentation for the vessel Kalypso.
The Kalypso (vessel number 566349) is a 36-foot recreational vessel
owned by Ronald Kent of Anchorage, AK. It was built in Largo, FL, in
1974. The vessel was apparently at one time owned by a non-U.S.
citizen, and it is therefore ineligible for documentation under the
Jones Act. Mr. Kent intends to use the vessel for charter fishing and
sightseeing in Prince William Sound, AK.
I ask unanimous consent that this bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1588
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That
notwithstanding sections 12106, 12107, and 12108 of title 46,
United States Code, and section 27 of the Merchant Marine
Act, 1920 (46 App. U.S.C. 883), as applicable on the date of
enactment of this Act, the Secretary of Transportation may
issue a certificate of documentation with appropriate
endorsements for employment in the coastwise trade for the
vessel Kalypso (vessel number 566349).
______
By Mr. GORTON (for himself and Mr. Lieberman):
S. 1589. A bill to provide for a rotating schedule for regional
primaries for Presidential elections, and for other purposes; to the
Committee on Rules and Administration.
the presidential primary act of 1996
Mr. GORTON. Mr. President, reacting to a proposal which I am about to
introduce in bill form, a columnist and cartoonist on the Seattle Post
Intelligencer wrote, in yesterday's edition of that newspaper:
My English friend, Carolyn, having recently arrived in the
United States from London, asked me to explain how Americans
decide who will be their President.
We were at a social occasion just before I headed up to New
Hampshire to witness the process firsthand. The longer I
rambled on, detailing the haphazard series of primaries and
caucuses, the influence of media expectations and money, the
nearly endless campaigns that begin almost as soon as the
winner of the previous round has been inaugurated, the more I
thought how bizarre it must sound to a person from another
country. . .
To the extent that the word ``system'' implies rationality
and forethought, we really do not have a system for choosing
nominees for president of the United States.
This bill also reflects a cartoon that this same individual had in
the newspaper about 3 or 4 weeks ago. In that cartoon, several of the
Founding Fathers, Benjamin Franklin, Thomas Jefferson, and Alexander
Hamilton are ``Brainstorming at the Constitutional Convention.'' Ben
Franklin turns to his colleagues in jest and rattles off an idea for a
Presidential election system, with the following statement:
``The President shall be chosen from among those persons
who can hone complex ideas into simplistic sound bites,
defame the character of their opponents, hide their own
blemishes from an intrusive swarming press corps and''--get
this!--``win the most votes from a tiny number of citizens in
a remote corner of New England!"
While this was simply a newspaper cartoon figure, it nonetheless
comes all too close to describing the way in which we pick nominees for
President of the United States at the present time.
A relatively small handful of voters in two or three States are wooed
for more than a year while the rest of the country is ignored, and the
influence of their votes, or even their sound bites on radio and on
television, has a disproportionate impact on the way in which we
nominate our Presidents. At the same time, it means that the candidates
must have very narrow platforms, appealing to this not highly
representative group of American citizens.
It also has the paradox, or had the paradox this year, of requiring
major candidates to ignore States that somehow or another are deemed to
be less influential. We saw an example this year when most of the
candidates skipped primaries and caucuses in Louisiana and Delaware for
fear of upsetting States that, for an extended period of time, had gone
earlier than they did.
This is absolutely ridiculous, and we need a new and better system.
We need a system that empowers and enfranchises all of the citizens of
the United States equally; that treats the nominating process in both
parties as being vitally important to the future of democratic
institutions in the United States; that does so fairly; that causes the
campaigns to speak about major national and regional issues on a much
broader focus than they have at the present time. So, this is the time,
it seems to me, when all of this is green in our memories, that we
should begin the process toward a new system.
As a consequence, the bill that I am introducing today, together with
my distinguished friend and colleague, the junior Senator from
Connecticut [Mr. Lieberman], creates a simple system of regional
primaries. There will be four
[[Page S1523]]
regions, each including either 12 or 13 States, all required to hold
primaries respectively on the first Tuesday in March--incidentally,
today--the first Tuesday in April, and in May, and then in June, with
the regions rotating first position, second position, third position,
fourth position over four cycles, or 16 years. So the people in each
region would go first once every four Presidential elections and last
every fourth Presidential election.
The delegates would be bound for at least two ballots on the vote for
the candidate to carry their State, or their congressional district,
and leave the rules as to how the votes are divided to be determined by
each individual State.
So the people of each State will have an equal opportunity to
participate in and to influence the nomination in that process. Instead
of 4 or 5 percent of the people of the United States having a
disproportionate impact on the outcome, all of the people of the United
States will have an equal opportunity, and, equally significant, the
candidates for President will have had the campaign in all corners of
the United States and in every State to be affected.
I believe, Mr. President, it will probably give a slightly greater
advantage to those candidates who are not independently wealthy or do
not have huge campaign chests because, with 12 or 13 primaries going on
at the same time, they could attempt to establish a niche in one or two
or three of those States and become well known, win one or two, and be
major candidates by the time the second round comes around.
Not at all incidentally, Mr. President, it would place the nomination
process a little bit closer to the national convention, and that
perhaps would slightly shorten the entire process.
I think, in summary, Mr. President, that we should do everything we
possibly can to improve the nomination system for President and see to
it that all of our people have equal opportunity to participate.
Mr. President, I ask unanimous consent that a copy of the bill be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1589
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 ``Presidential Primary Act of
1996''.
SEC. 2. DEFINITION.
For purposes of this Act--
(1) the term ``election year'' means a year during which a
Presidential election is to be held;
(2) the term ``national committee'' means the organization
which, by virtue of the bylaws of a political party, is
responsible for the day-to-day operation of such political
party at the national level, as determined by the Federal
Election Commission;
(3) the term ``political party'' means an association,
committee, or organization which--
(A) nominates a candidate for election to any Federal
office whose name appears on the election ballot as the
candidate of such association, committee, or organization;
and
(B) won electoral votes in the preceding Presidential
election;
(4) the term ``primary'' means a primary election held for
the selection of delegates to a national Presidential
nominating convention of a political party, but does not
include a caucus, convention, or other indirect means of
selection; and
(5) the term ``State committee'' means the organization
which, by virtue of the bylaws of a political party, is
responsible for the day-to-day operation of such political
party at the State level, as determined by the Federal
Election Commission.
SEC. 3. SCHEDULE.
(a) Schedule.--
(1) First election cycle.--In the first election year after
the date of enactment of this Act, each State shall hold a
primary in accordance with this Act, according to the
following schedule:
(A) Region i.--Each State in Region I shall hold its
primary on the first Tuesday in March.
(B) Region ii.--Each State in Region II shall hold its
primary on the first Tuesday in April.
(C) Region iii.--Each State in Region III shall hold its
primary on the first Tuesday in May.
(D) Region iv.--Each State in Region IV shall hold its
primary on the first Tuesday in June.
(2) Subsequent election cycles.--
(A) General rule.--Except as provided in subparagraph (B),
in the second and each subsequent election year after the
date of enactment of this Act, each State in each region
shall hold its primary on the first Tuesday of the month
following the month in which it held its primary in the
preceding election year.
(B) Limitation.--If the States in a region were required to
hold their primaries not earlier than the first Tuesday in
June of the preceding year, such States shall hold their
primaries on the first Tuesday in March of the succeeding
election year.
(b) Regions.--For purposes of subsection (a):
(1) Region i.--Region I shall be comprised of the
following:
(A) Connecticut.
(B) Delaware.
(C) District of Columbia.
(D) Maine.
(E) Maryland.
(F) Massachusetts.
(G) New Hampshire.
(H) New Jersey.
(I) New York.
(J) Pennsylvania.
(K) Rhode Island.
(L) Vermont.
(M) West Virginia.
(2) Region ii.--Region II shall be comprised of the
following:
(A) Alabama.
(B) Arkansas.
(C) Florida.
(D) Georgia.
(E) Kentucky.
(F) Louisiana.
(G) Mississippi.
(H) North Carolina.
(I) Oklahoma.
(J) South Carolina.
(K) Tennessee.
(L) Texas.
(M) Virginia.
(3) Region iii.--Region III shall be comprised of the
following:
(A) Illinois.
(B) Indiana.
(C) Iowa.
(D) Kansas.
(E) Michigan.
(F) Minnesota.
(G) Missouri.
(H) Nebraska.
(I) North Dakota.
(J) Ohio.
(K) South Dakota.
(L) Wisconsin.
(4) Region iv.--Region IV shall be comprised of the
following:
(A) Alaska.
(B) Arizona.
(C) California.
(D) Colorado.
(E) Hawaii.
(F) Idaho.
(G) Montana.
(H) Nevada.
(I) New Mexico.
(J) Oregon.
(K) Utah.
(L) Washington.
(M) Wyoming.
(5) Territories.--The national committees shall jointly
determine the region of each territory of the United States.
SEC. 4. QUALIFICATION FOR BALLOT.
(a) Certification by Federal Election Commission.--The
Federal Election Commission shall certify to the States in
the relevant region the names of all seriously considered
candidates of each party--
(1) for the first primary in the election year, not later
than 6 weeks before such primary; and
(2) in the subsequent primaries in the election year, not
later than 1 week after the preceding primary in that
election year.
(b) State Primary Ballots.--Each State shall include on its
primary ballot--
(1) the names certified by the Federal Election Commission;
and
(2) any other names determined by the appropriate State
committee.
SEC. 5. VOTING AT NATIONAL PARTY CONVENTIONS BY STATE
DELEGATES.
(a) In General.--Each State committee shall establish a
procedure for the apportionment of delegates to the national
Presidential nominating convention of each political party
based on 1 of the following models:
(1) Winner-take-all.--A binding, winner-take-all system in
which the results of the primary bind each member of the
State delegation or Congressional district delegation (or
combination thereof) to the national convention to cast his
or her vote for the primary winner in the State.
(2) Proportionate preference.--A binding proportionate
representation system in which the results of the State
primary are used to allocate members of the State delegation
or Congressional district delegation (or combination thereof)
to the national convention to Presidential candidates based
on the proportion of the vote for some or all of the
candidates received in the primary in the State.
(b) Selection of Delegates.--
(1) Submission of names.--Not later than the date on which
a candidate is certified on the ballot for a State, such
candidate shall submit to the State committee, in priority
order, a list of names of individuals proposed by the
candidate to serve as delegates for such candidate.
(2) Selection.--Delegates apportioned to represent a
candidate pursuant to the procedure established under
subsection (a) shall be selected according to the list
submitted by the candidate pursuant to paragraph (1).
[[Page S1524]]
(c) Voting at the National Conventions.--Each delegate to a
national convention who is required to vote for the winner of
the State primary under the system established under
subsection (a) shall so vote for at least 2 ballots at the
national convention, unless released by the winner of the
State primary to which such delegate's vote is pledged.
SEC. 6. EFFECTIVE DATE.
This Act shall apply to the primaries in the year 2000 and
in each election year thereafter.
______
By Mrs. MURRAY (for herself, Mr. Leahy, Mr. Baucus, Mr. Bumpers,
and Mrs. Feinstein):
S. 1590. A bill to repeal the emergency salvage timber sale program,
and for other purposes; to the Committee on Energy and Natural
Resources.
the public participation in timber salvage act of 1996
Mrs. MURRAY. Mr. President, I rise today to introduce legislation to
correct serious problems with a law passed by this Congress at the
beginning of last year. This law was intended to bypass environmental
safeguards to speed up tree harvesting in national forests.
Mr. President, this law, commonly known as the salvage rider, has not
worked. Instead, it has reopened old wounds in the Pacific Northwest,
and sparked major controversy throughout the region. It has once again
cast political uncertainty over working families, and blatantly cut
regular people out of decisions over their own forests.
In short, what was billed as a commonsense approach to removing dead
trees has turned out to be another case of legislative overkill on the
environment.
Mr. President, it doesn't have to be this way. My bill will defuse a
tense situation, provide certainty for workers, and restore a role for
the public in forest management. Let me explain how.
The salvage rider has three problems: It allows large, old-growth
timber sales previously declared illegal to be harvested without regard
to fish and wildlife concerns; it could relegate the Northwest forest
plan to the trash heap; and it cuts the public completely out of any
final decision to harvest trees in national forests.
First, my bill resolves the old-growth issue by suspending timber
sales commonly referred to as section 318 sales, and requiring the
Forest Service to provide substitute timber volume or buy these sales
back from the purchaser. In either case, the purchaser is held
harmless, and so are the sensitive old-growth areas.
Second, my bill expedites implementation of the Northwest forest plan
by making sure resources are available to complete recommended
watershed analyses. The primary goal of this provision is to protect
the scientific validity of option 9, so that timber sales can move
ahead and private land owners can proceed with their habitat
conservation plans.
This is a very important point: The State of Washington and every
major timber land owner in the region are working on comprehensive
habitat conservation plans. Every single one of these groups assume
full implementation of option 9 as the basis of fish and wildlife
protection in their own plans. If option 9 goes belly up, all of these
habitat plans are worthless.
Third, my bill establishes a permanent, reasonable salvage program.
The key work is permanent. I propose moving away from ad hoc forest
planning by Congress, switching gears with every swing of the political
pendulum. Instead, we should put a long-term program in place,
something everyone can plan around, year in and year out.
Let me be very clear: This is not about salvage logging; this is
about public input and accountability. Salvage logging is appropriate--
and sometimes necessary--is done right. My bill sets up a program that
allows the agencies to target salvage logging on an expedited basis
when needed, under the full scrutiny of the public eye. If the agencies
can defend their proposals, then they will go forward unimpeded.
Mr. President, I remember what it was like last spring. There was a
new feeling in Congress; the people had called for change, so the
leadership was running through bills left and right in the heat of the
moment. A lot of things passed that might not have stood up under
closer scrutiny, and this was one of them.
The irony here is thick: The salvage rider gave the Federal
Government more power, and less accountability. As a result, the public
has no say in how their own national forests are managed. I don't think
the people wanted that kind of change.
People say this issue is too controversial to resolve, and that over
the years it has become too polarized. To watch the debate, you might
think that's true. Any person's idea is immediately rejected by someone
else. And that may be the case with my bill. But if we keep rejecting
everything, we will be left with nothing, except more chaos.
With all the controversy, people ask me, ``why bother?'' I'll tell
you why: Because I care deeply about the Northwest. I care deeply about
what government is saying to people about tough issues; more often than
not, we're telling people that someone, somewhere, has to lose. That's
not what I'm about. Most of all, I care deeply about the kind of legacy
we're leaving for our children in this world.
We simply cannot continue the way of divide and conquer.
There are several ideas out there about how to proceed on this issue,
from doing nothing at all, to repealing the salvage rider outright. My
bill cuts a middle path. It says to workers: Salvage logging is
something we should always be able to do. It says to conservationists:
You will have an opportunity to hold the administration to its word. It
says to large landowners: Your habitat planning efforts will pay off.
In my view, people ought to be willing to settle for this as a
responsible approach.
Mr. President, I intend to pursue this matter on the continuing
resolution when it comes before the full Senate. It is my understanding
that the CR will contain limited language on this issue, but I do not
believe it will solve the problem. I look forward to working with my
colleagues.
Mr. President, I would also like to explain further some of the
concepts contained in this bill.
replacement volume for section 2001(k) Sales, Section 102(b)
The Secretary and contract holder/sale purchaser should immediately
begin negotiations to locate alternative volume agreeable to both
parties. Because these purchasers have owned these contracts for half a
decade, the Secretary should make every effort to find and plan
environmentally sound timber sales or modifications of the existing
sale. The Secretary should direct agency personnel to make substitute
volume a priority.
New sales or modifications of existing sales must comply with all
applicable law, forest and regional plans, and standards and
guidelines. Specifically, they must comply with the Northwest forest
plan and, when developed, the plan--or plans--implementing the Interior
Columbia Basin ecosystem management project. Furthermore, they must
comply with Forest Service and BLM standards and guidelines, including
PACFISH, INFISH, and Eastside screens.
bidding rights, section 102(c)(2)
This bill contains provisions allowing for purchasers holding timber
sale contracts for sales that do not comply with environmental or
natural resource laws to exchange the value of those contracts for
bidding credits. Such a concept has operated for mineral rights in at
least two other natural resource laws--see Public Law 97-466, 96 Stat.
2540; and Public Law 96-401, 94 Stat. 1702.
This bill authorizes monetary credits based on the negotiated value
of the purchaser's timber sale contract. The bidding credits extend to
the purchaser and his or her successors and assigns to use in whole or
part payment for future timber sales on Forest Service sales where the
credits originated therefrom or on Bureau of Land Management sales,
where the credits originated therefrom.
salvage sales initiated under the rider, section 103(a)
Sales initiated under section 2001 (b) or (d) are all those begun
since passage of the Emergency Timber Salvage Act, on July 27, 1995.
Title III of this bill applies to sales where its provisions are
timely. For example, if a sale has been advertised, this law does not
require the agency to host an interdisciplinary team meeting with
public participation. All sales that have not been awarded are subject
to appeal under the provision of title III.
[[Page S1525]]
appeal of awarded salvage sales, section 103(b)
In section 103(b), I address sales that have been awarded to timber
sale purchasers under the salvage and Northwest forest plan provisions
of the rescissions bill. I give the public an opportunity to appeal
immediately and thereby suspend sales that are causing environmental
damage. The administration insists that it is complying with all
environmental laws, and I want to give the public an opportunity to
prove that is the case.
However, the agencies were required by the law at the time these
sales were awarded--section 2001 of Public Law 104-19--to take
procedural short cuts. I do not believe the purchasers should be denied
their contract rights while the public challenges the agencies for
obeying the law's procedural timelines. On the other hand, I do not
want any sales that cause environmental harm to go forward. Thus, I try
to strike a balance between these competing needs by limiting appeals
to substantive complaints.
I understand that often substantive claims are raised in the context
of procedural laws, such as the National Environmental Policy Act. Some
courts have suggested that NEPA is a purely procedural statute. The
term ``procedural'' in this bill is not meant to eliminate claims
regarding environmental harm, even if they could be characterized as a
purely procedural challenge. Let me give some examples.
Where an agency had documentation in which a biologist recommended a
sale not go forward, but the agency allowed the sale to be awarded to a
purchaser, then such documentation could be the basis for an appeal and
would not be considered a procedural challenge. Another example would
be where the agency went forward with a sale prior to obtaining the
concurrence from the National Marine Fisheries Service or the U.S. Fish
and Wildlife Service regarding whether an activity will or will not
jeopardize a species under the Endangered Species Act. This should not
be characterized as a procedural challenge. A final example would be
that section 2001 of Public Law 109-14 required the agencies to, in
their discretion, file only environmental assessments, not
environmental impact statements. Because both EA's and EIS's should
disclose the effects of a sale on the environment, a challenge could
not be made simply because the agency published such information in an
EA, rather than an EIS. However, if the documentation, no matter what
its title, failed to disclose the effects on the environment, it would
be open to challenge.
Funding to Implement Title III, Section 304
In this bill, the agencies are given discretion at the forest
supervisor's and district manager's levels to combine several funds and
accounts to implement this bill. The intent is to provide adequate
funds for such activities as salvage timber sales, stewardship
programs, watershed restoration, including road decommission, and data
inventory and collection. This fund may not be used to carry out any
activities that violate the forest plans, agency standards and
guidelines, or the intent of this bill. This flexibility of funding
will allow the agency to address critical salvage situations, correct
an apparent agencywide problem with inadequate inventory of forest
resources, and address a backlog of stewardship and restoration
projects.
Pilot Program for Harvest Contracting, Section 306
The legislation authorizes a pilot program to change the way salvage
timber sales are undertaken on Forest Service and BLM lands. The Forest
Service currently sells timber by planning and preparing the sale,
offering the sale to bidders, and administering the timber harvest.
Harvest contracting or stewardship contracting is an alternative to the
current method, entailing a two-step process: A timber harvest contract
or contracts to cut and remove wood, and log sales from the collected
and sorted wood.
There are several advantages to harvest contracting, including
allowing the agencies to better implement ecosystem management,
providing an opportunity to improve tree health without a large
component of merchandise timber, eliminating below-cost timber sales,
and reducing timber theft.
Specifically, harvest contracting would improve ecosystem management
by basing contracts on the work performed and the resulting conditions
of the forest. This would eliminate incentives for purchasers to
inappropriately harvest large, lucrative trees. This pilot project
encourages harvest so smaller, less valuable trees that have
proliferated in many years of the West due to fire suppression and
historic timber practices, such as highgrading. These young, dense
stands are expensive to harvest, but many scientists believe it is
important to remove them in order to restore health to timber stands.
The primary financial benefit is that gross timber sale revenues
would be substantially higher because purchasers would not have road
construction or logging costs--they would simply buy the wood from the
log yard. Because the agencies may not be as efficient as a private
enterprise, the agencies should consider contracting the log marketing
business to a private business.
A secondary financial benefit would be the elimination of many
opportunities for timber sale fraud and theft. Under harvest
contracting, the scaling system would be eliminated and the contractor
would not benefit from cutting trees designated to be left standing
because of the fixed contract price and, in fact, might be penalized
for not performing to contract specifications. That is why the bill
contains a provision limiting the ability of the contractor who
performs the contract from also selling the harvested wood.
Finally, this pilot project should benefit timber workers in several
ways. First, salvage timber sales or thinning sales that were
previously uneconomical to harvest would be offered, providing jobs for
loggers and other resource experts. Second, timber companies would be
purchasing wood after seeing its quality and knowing the exact board
footage, rather than hypothesizing about the quantity of wood contained
in a standing timber sale and not knowing how weather or timber markets
might affect the ability to harvest or make a profit from the wood.
Third, companies would not be subject to changes or delays in ability
to harvest based on legal or political changes as they held long-term
timber sale contracts; they would simply purchase wood.
While harvest contracting appears to offer many benefits from many
different aspects, it remains untested on a large scale. This bill
requires the Forest Service and BLM to establish pilot programs. This
should provide guidance as to the feasibility, benefits, and drawbacks
of the concept.
In addition, Senator Max Baucus has introduced a bill, S. 1259, that
also establishes a demonstration program to use stewardship
contracting. The concepts contained in this bill were developed by a
group of conservationists, forest product industry representatives, and
community leaders. This should also offer guidance as how to implement
this pilot program.
Forest Timber Stand Study Title IV
The Forest Service has initiated a similar study to that required in
this bill. The Western Forest Health Initiative should be used as a
foundation for the requirements of this bill. There is no need for the
agencies to be duplicative, rather this bill's provisions should be
supplemental to the work done in the WFHI.
Collaborative Decisionmaking
Early drafts of this bill included use of collaborative
decisionmaking. The concept was dropped from the bill because it was
too difficult to described in legislative language. However, this
decisionmaking process was very effective when it was used to plan and
develop timber salvage sales after the wildfires of 1994 on the
Wenatchee National Forest. The process was developed by Steve Daniels
and Gregg Walker, of Oregon State University, as a tool to support
ecosystem-based management of forest.
Collaborative learning is a framework designed for natural resource
management situations that have the following features: Multiple
parties and issues, deeply held values and cultural difference,
scientific and technical uncertainty, and legal and jurisdictional
constraints. The key notions that define collaborative learning are:
Redefining the task away from solving a problem to one of improving a
situation; viewing the situation as a set of interrelated systems;
defining improvement as desirable and feasible change;
[[Page S1526]]
recognizing that considerable learning about science, issues and value
differences--will have to occur before implementable improvements are
possible; and promoting working through the issues and perspectives of
the situation.
Because of its success on the Wenatchee National Forest, I recommend
the agencies consider use of collaborative decisionmaking procedures to
increase valuable and productive participation by various interest
parties.
______
By Mr. D'AMATO:
S.J. Res. 50. A joint resolution to disapprove the certification of
the President under section 490(b) of the Foreign Assistance Act of
1961 regarding foreign assistance for Mexico during fiscal year 1996;
to the Committee on Foreign Relations.
CERTIFICATION DISAPPROVAL LEGISLATION
Mr. D'AMATO. Mr. President, I rise today to introduce a joint
resolution that disapproves of the administration's certification of
Mexico. I am joined by my colleagues Senator Helms, Senator McConnell,
and Senator Pressler in presenting this resolution and urge its
immediate passage.
As a result of the amount of drugs that are found to have come into
the United States through Mexico, we know that Mexico has failed to
stem the international drug trade. If this administration does not want
to recognize Mexico's failure, then it is up to Congress to do so. I
will speak on this issue in more detail tomorrow. I encourage my
colleagues to join us in this effort.
Mr. President, I ask unanimous consent that the text of the joint
resolution be printed in the Record.
There being no objection, the joint resolution was ordered to be
printed in the Record, as follows:
S.J. Res. 50
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That pursuant
to subsection (d) of section 490 of the Foreign Assistance
Act of 1961 (22 U.S.C. 2291j), Congress disapproves the
determination of the President with respect to Mexico for
fiscal year 1996 that is contained in the certification
(transmittal no. ) submitted to Congress by the President
under subsection (b) of that section on , 1996.
____________________