The Clinton administration official most directly involved in what encryption software can be exported and what must stay at home said Friday that a series of radical House amendments to crypto-reform legislation departs from what he called a "balanced approach" to the issue.
The statement from Commerce undersecretary William Reinsch, who heads the department's Export Administration Bureau, underlines a behind-the-scenes White House battle over how the government ought to handle encryption. Not much is known about the private wrangling. What has become public, though, is this:
After months of issuing mostly ignored warnings about the criminal tidal wave that would be loosed if US crypto policy is liberalized, FBI director Louis Freeh last week found an enthusiastic reception in a Senate Judiciary subcommittee for his suggestion that the United States needs a national key recovery system. One senator, California's Dianne Feinstein, went even further: No crypto-enabled software should be manufactured in the United States, the Democrat posited, unless it allowed rapid law-enforcement access to encrypted data.
Reinsch spoke out against Freeh last week, telling reporters that the FBI chief's comments did not represent the administration's thinking. But within a couple of days, media reports surfaced that Freeh's proposal really embodied a new administration push for more restrictive crypto legislation. Where did that gambit leave Reinsch, one of the White House's leading voices on encryption?
Well, it's clear that he's no buddy of the Safety and Freedom through Encryption Act, the liberalization bill by Representative Bob Goodlatte (R-Virginia). For one thing, the bill's provision to lift limits on what code can be exported is anathema. For another, the bill bans key recovery, and Reinsch supports that.
Nevertheless, the undersecretary went out of his way to criticize a series of amendments by the House Intelligence Committee that run directly against the intent of Goodlatte's HR695.
The bill would penalize those who manufacture, sell, use, distribute, or import encryption that does not include "features or functions that provide an immediate access to plaintext capability," the bill says. A clause in the bill exempts current encryption products without key recovery already on the market, saying they would be grandfathered in if they are in your possession before 31 January 2000. It would be unlawful to distribute that technology after that date, and violators could face up to 10 years in prison.
The amended 43-page bill is so all-encompassing that some have joked that even a cereal-box decoder ring, or the Bible-cracking best seller The Bible Code would be illegal because they do not give law enforcement a "trap door" to access encrypted information.
"The action of the House Select Committee on Intelligence recognizes that there are public safety and national security concerns that are not addressed by HR695 as introduced," Reinsch said. He added that although he was prepared to work with Congress and industry to find a compromise, "neither the committee action nor HR695 as introduced meets this test."
Despite Reinsch's statement, it's far from certain the crypto hard-liners see any need for negotiation.
"We are offering proposals to ensure that do not plow full steam ahead into the 21st century's information age having seriously weakened our ability to protect national security," House Intelligence Committee Chairman Porter Goss (R-Florida) said in a statement after the bill was amended. Goss and Norm Dicks (D-Washington) introduced the legislation, which passed by voice vote in a closed session.
"Clearly they've gone through and thought about how to get into the business of prosecuting people for the use of strong encryption," said Alan Davidson, staff counsel of the Center for Democracy and Technology. "All programs built into everyday software would have to have a key recovery feature."
The five committees with jurisdiction over the Goodlatte bill - Commerce, Judiciary, National Security, Intelligence, and International Affairs - say they will work with the administration, Goodlatte, and industry to craft a compromise. The Commerce Committee on Thursday was granted a two-week extension on its vote. The bill will then go to the Rules Committee, and then the House floor.
And where is the administration's info-age vice president in all this?
"We are referring all questions about encryption to the Commerce Department," Al Gore spokeswoman Heidi Kukis said.
