After nearly four hours of wrangling, the House Commerce Committee today passed a market-friendly encryption bill, voting down an amendment 35-16 that would have imposed strict domestic controls on encryption.
"Throughout this debate in the past few weeks, the members have been swinging towards privacy," Representative Edward Markey (D-Massachusetts) told reporters after the vote. "I think that's going to happen in every single public debate that's held."
The Security and Freedom through Encryption Act, sponsored by Representative Bob Goodlatte (R-Virginia), passed in a 40-11 vote with an amendment that strengthens penalties for using encryption in a crime from five years to 10. The amendment, sponsored by Markey and Representative Rick White (R-Washington), also establishes a "national encryption technology center" in which companies would work with law enforcement on encryption technologies, although where funding for the center would come from or who would participate is undefined.
But the committee and the House remain deeply divided over just how much access law enforcement should have to digital communications. Despite two weeks of 'round-the-clock staff work and lobbyists haunting members and aides, panel members could not find a compromise between law enforcement and privacy concerns. In fact, many could not understand why technology can't sort the whole mess out.
"If these cryptographers are so smart, why don't they invent some decryption devices for law enforcement?" asked Representative Mike Oxley (R-Ohio), a former FBI agent and chief sponsor of the pro-law-enforcement amendment that failed.
Arguments for the need for law enforcement to access encrypted data surfaced again and again, as members pointed out that drug cartels use strong encryption to secure their data.
"Computers and the Internet have become fertile ground for terrorists, drug cartels, and child pornographers," said Representative Greg Ganske (R-Iowa).
But the committee majority appeared to be swayed by the argument that the wide availability of strong encryption on the global market made Oxley's proposal - to prevent all Americans from using encryption without immediate access to plaintext by law enforcement - illogical.
"This is the Prohibition of the electronic age," said Representative Anna Eshoo (D-California). "People drank anyway. Liquor was out there, and it was easy to make."
Markey said the Oxley proposal's requirement for easy access to encrypted data could become the "Achilles' heel of electronic commerce."
The bill's next test: the House Rules Committee, which will decide in what form, if any, the bill will reach the House floor. Two weeks ago, the House Intelligence and National Security committees passed a series of amendments, one similar to Oxley's, that would undercut the intent of Goodlatte's original legislation.
Rules Committee chair Gerald Solomon (R-New York) sent a letter to Commerce Committee members warning them that he will block any variation on the Goodlatte bill that does not carry the strong key recovery provision Oxley tried to get passed.
Goodlatte told reporters after the Commerce panel session that he is going to work immediately to try to get the bill over the next hurdle.
"We are certainly going to be working with the leadership and the Rules Committee to make sure everybody who has an opinion about this gets heard and that we design a bill that will have strong bipartisan support," he said.
Goodlatte still faces a long road. The bill has 252 House co-sponsors - a solid majority should it reach the floor. But it would still have to be reconciled with radically different Senate legislation and gain President Clinton's signature before it becomes law.
