[Weekly Compilation of Presidential Documents Volume 32, Number 46 (Monday, November 18, 1996)]
[Pages 2399-2401]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 13026--Administration of Export Controls on Encryption 
Products

November 15, 1996

    By the authority vested in me as President by the Constitution and 
the laws of the United States of America, including but not limited to 
the International Emergency Economic Powers Act (50 U.S.C. 1701 et 
seq.), and in order to take additional steps with respect to the 
national emergency described and declared in Executive Order 12924 of 
August 19, 1994, and continued on August 15, 1995, and on August 14, 
1996, I, William J. Clinton, President of the United States of America, 
have decided that the provisions set forth below shall apply to 
administration of the export control system maintained by the Export 
Administration Regulations, 15 CFR Part 730 et seq. (``the EAR''). 
Accordingly, it is hereby ordered as follows:
    Section 1. Treatment of Encryption Products. In order to provide for 
appropriate controls on the export and foreign dissemination of 
encryption products, export controls of encryption products that are or 
would be, on this date, designated as defense articles in Category XIII 
of the United States Munitions List and regulated by the United States 
Department of State pursuant to the Arms Export Control Act, 22 U.S.C. 
2778 et seq. (``the AECA''), but that subsequently are placed on the 
Commerce Control List in the EAR, shall be subject to the following 
conditions: (a) I have determined that the export of encryption products 
described in this section could harm national security and foreign 
policy interests even where comparable products are or appear to be 
available from sources outside the United States, and that facts and 
questions concerning the foreign availability of such encryption 
products cannot be made subject to public disclosure or judicial review 
without revealing or implicating classified information that could harm 
United States national security and foreign policy interests. 
Accordingly, sections 4(c) and 6(h)(2)-(4) of the Export Administration 
Act of 1979 (``the EAA''), 50 U.S.C. App. 2403(c) and 2405(h)(2)-(4), as 
amended and as continued in effect by Executive Order 12924 of August 
19, 1994, and by notices of August 15, 1995, and August 14, 1996, all 
other analogous provisions of the EAA relating to foreign availability, 
and the regulations in the EAR relating to such EAA provisions, shall 
not be applicable with respect to export controls on

such encryption products. Notwithstanding this, the Secretary of Commerce 
(``Secretary'') may, in his discretion, consider the foreign availability 
of comparable encryption products in determining whether to issue a license 
in a particular case

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or to remove controls on particular products, but is not required to issue 
licenses in particular cases or to remove controls on particular products 
based on such consideration;

    (b) Executive Order 12981, as amended by Executive Order 13020 of 
October 12, 1996, is further amended as follows:
    (1) A new section 6 is added to read as follows:
    ``Sec. 6. Encryption Products. In conducting the license review 
described in section 1 above, with respect to export controls of 
encryption products that are or would be, on November 15, 1996, 
designated as defense articles in Category XIII of the United States 
Munitions List and regulated by the United States Department of State 
pursuant to the Arms Export Control Act, 22 U.S.C. 2778 et seq., but 
that subsequently are placed on the Commerce Control List in the Export 
Administration Regulations, the Departments of State, Defense, Energy, 
and Justice and the Arms Control and Disarmament Agency shall have the 
opportunity to review any export license application submitted to the 
Department of Commerce. The Department of Justice shall, with respect to 
such encryption products, be a voting member of the Export 
Administration Review Board described in section 5(a)(1) of this order 
and of the Advisory Committee on Export Policy described in section 
5(a)(2) of this order. The Department of Justice shall be a full member 
of the Operating Committee of the ACEP described in section 5(a)(3) of 
this order, and of any other committees and consultation groups 
reviewing export controls with respect to such encryption products.''
    (2) Sections 6 and 7 of Executive Order 12981 of December 5, 1995, 
are renumbered as new sections 7 and 8, respectively.
    (c) Because the export of encryption software, like the export of 
other encryption products described in this section, must be controlled 
because of such software's functional capacity, rather than because of 
any possible informational value of such software, such software shall 
not be considered or treated as ``technology,'' as that term is defined 
in section 16 of the EAA (50 U.S.C. App. 2415) and in the EAR (61 Fed. 
Reg. 12714, March 25, 1996);
    (d) With respect to encryption products described in this section, 
the Secretary shall take such actions, including the promulgation of 
rules, regulations, and amendments thereto, as may be necessary to 
control the export of assistance (including training) to foreign persons 
in the same manner and to the same extent as the export of such 
assistance is controlled under the AECA, as amended by section 151 of 
Public Law 104-164;
    (e) Appropriate controls on the export and foreign dissemination of 
encryption products described in this section may include, but are not 
limited to, measures that promote the use of strong encryption products 
and the development of a key recovery management infrastructure; and
    (f) Regulation of encryption products described in this section 
shall be subject to such further conditions as the President may direct.
    Sec. 2. Effective Date. The provisions described in section 1 shall 
take effect as soon as any encryption products described in section 1 
are placed on the Commerce Control List in the EAR.
    Sec. 3. Judicial Review. This order is intended only to improve the 
internal management of the executive branch and to ensure the 
implementation of appropriate controls on the export and foreign 
dissemination of encryption products. It is not intended to, and does 
not, create any rights to administrative or judicial review, or any 
other right or benefit or trust responsibility, substantive or 
procedural, enforceable by a party against the United States, its 
agencies or instrumentalities, its officers or employees, or any other 
person.
                                            William J. Clinton
The White House,
November 15, 1996.

[Filed with the Office of the Federal Register, 8:45 a.m., November 18, 
1996]

Note: This Executive order will be published in the Federal Register on 
November 19.

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