The US national security establishment won a big victory and software-makers and privacy advocates suffered a signal defeat today when the House National Security Committee amended a widely supported bill on encryption to give the president and secretary of Defense power to rule on what code can be marketed outside the United States.
The bill, the Security and Freedom Through Encryption Act by Representative Bob Goodlatte (R-Virginia), was approved by a 45-1 vote after it was amended. But observers from industry and privacy groups said the change in the law actually represented a step backward from current US policy, which gives the Commerce Department final authority on licensing crypto exports.
Panel members said national-security briefings compelled them to support the amendment.
"I'll tell you, I attended one of those classified briefings by the National Security Agency, and I could not be more impressed with the threat to national security posed to our men and women in uniform," said Representative Patrick Kennedy (D-Rhode Island). "What this bill will end up doing is overwhelm our national security."
Representative Curt Weldon (R-Pennsylvania), who introduced the amendment along with Representative Ron Dellums (D-California), echoed those remarks.
"If you have not taken the time to get to a high-level briefing from the National Security Agency, you should do so," he told his fellow committee members. "The information posed to us will change your thoughts about encryption export."
A handful of committee members who are also members of the Intelligence Committee were treated to such a briefing this morning, as law-enforcement officials told them about the secret dangers of unfettered encryption. The National Security Committee members had a similar briefing last Friday, and the Commerce Committee, the final committee to vote on Goodlatte's bill, will be briefed this week. The Intelligence Committee is scheduled to vote on the bill in a closed session Thursday.
Although he opposes the bill in its current form, Weldon said he does not support the current US policy on encryption. But, he added, "that should not be a signal to us to go in the other direction." He said the national security briefing taught him that free encryption export could "hamper vital intelligence collection" and "risk our ability to make tactical decisions."
Supporters of Goodlatte's legislation said the FBI and National Security Agency's lobbying efforts in recent months were indeed formidable.
"You have the FBI charging off here on the Hill in their own direction," said Jon Englund, vice president of the Information Technology Association of America, a trade group which includes some of the biggest software manufacturers in America. He referred to a newly unveiled FBI proposal that would require all crypto software to include key recovery features. "This amendment is worse than the status quo. It gives the Secretary of Defense authority where he does not now have authority."
In fact, some fear that the amendment, if made law, would eliminate the flexibility the Commerce Department now enjoys in allowing banks and software-makers to export stronger encryption than some other manufacturers.
"It codifies a bad process," said Alan Davidson, staff counsel for the Center for Democracy and Technology.
The National Security Committee does not have jurisdiction over the other half of Goodlatte's bill, which would ban the creation of a universal domestic key recovery system. Some speculate that the Intelligence Committee, which does have domestic jurisdiction, plans to throw out the legislation altogether and replace it with the FBI-supported bill in its vote on Thursday.
The lone opposition to the Weldon/Dellums amendment, Representative Adam Smith, a freshman Democrat from Washington state who described himself as a "shovel against an overwhelming tide," said he feared that export controls would only move US software companies offshore. Although, perhaps in a nod to those infamous classified briefings, he added that he was "totally sold on national security."
