THE CUTTING EDGE : DIGITAL NATION : Congress Feuds Over Encryption

The United States government once classified digital encryption software in export control regulations along with devices like nuclear weapons triggers. Exporting encryption software was, until recently, a grave offense of national security that could bring a serious federal prison sentence.

The feds have relaxed those controls, but there are still officials in the federal government who regard encryption software as a dangerous and ominous technology. And the current fight in Congress over how to treat encryption software is bitter and polarized.

Encryption was once the exclusive domain of diplomatic and military communications, but personal computers and innovations in encryption changed all that. Now, encryption capabilities can be installed in PCs quite easily.

And encryption software is widely available on the Internet, often for free. In fact, most Internet surfers already use a form of encryption when they access “secure” sites on the Web because encryption is built into the Netscape Navigator and Microsoft Internet Explorer browsers as well as most Web server software.

Computer experts view encryption software as the only viable means of providing security, privacy and reliable e-commerce. The stakes are immense--e-commerce, for example, will undoubtedly catapult to a new level of economic significance once we can depend on digital signatures, which rely on encryption.

But unbreakable digital encryption scares the daylights out of law enforcement officials, particularly FBI Director Louis J. Freeh.

Freeh made his reputation in the 1980s in New York City as chief of the FBI’s organized crime unit, then deputy and associate U.S. attorney. He was the task force leader in the 1980s investigation of the “pizza connection,” a billion-dollar drug ring connecting the Sicilian Mafia to drug sales. The ring was cracked chiefly through the use of telephone wiretaps. Consequently, Freeh is a big believer in the importance of wiretaps in criminal investigations.

Encryption makes wiretaps increasingly difficult. That’s why Freeh has taken the lead in opposing the relaxation of government controls on encryption software, and he’s become the most visible public spokesman for that cause.

The FBI’s position is that it encourages encryption software for safeguarding U.S. data, but it also wants a “back door” written into such software so that law enforcement can get access to the data after securing a court order or a warrant. But the information technology industry opposes the back door requirement because it opens a security hole, thus weakening the software’s commercial value. Executives point out that unbreakable encryption software is already available around the world and that a federal restriction would hobble U.S. software in the international market.

That dispute has landed in Congress in the form of a bill known as SAFE, the Security and Freedom through Encryption Act (HR 850), co-sponsored by Reps. Bob Goodlatte (R-Va.), Zoe Lofgren (D-San Jose) and about 250 other members of the House. This is an industry-backed bill, pushed by major lobbying groups.

The SAFE bill, in its original form, would relax most encryption export controls and allow U.S. citizens to use any encryption product they want. It does have a provision about criminal activity, making it a crime to use encryption to knowingly conceal crimes.

The SAFE bill sailed through the House committees that deal with commerce, but it hit a buzz saw this summer in the House Armed Services Committee and the House Permanent Select Committee on Intelligence.

After a closed-door hearing in the latter panel, SAFE emerged “gutted,” according to the Center for Democracy and Technology in Washington. While a newer version of the bill still relaxes export controls, it gives power to the president to “control exports of encryption products, and to deny an export on national security grounds.” This new version, amended in committee in July, also allows the federal government to “encourage” the use of encryption products that include “recoverable means”--in other words, back doors.

Helping lead the law enforcement case for control over the products is Rep. Julian C. Dixon of Los Angeles, the highest-ranking Democrat on the House intelligence panel.

The Justice Department’s case was complicated by revelations during the last month, however. On July 27, an Austrian journal called Telepolis published a letter (https://jya.com/reno-ban.htm) from Atty. Gen. Janet Reno to a German government official in which Reno asked for cooperation in banning encryption products from the Internet.

Then in August, the Washington Post revealed a Justice Department plan for a Cyberspace Electronic Security Act, which, if passed, would allow federal agents with a warrant to secretly break into homes or businesses to acquire encryption keys or implant surveillance devices into computers. This proposal was greeted with outraged condemnations from civil liberties groups.

Leading the attack against the Justice Department was Rep. Bob Barr (R-Ga.), who wrote a letter to Reno in which he said, “In an environment of increasing congressional skepticism toward law enforcement surveillance requests, a suggestion as patently absurd as this one will seriously damage your credibility, and diminish your chances of working with Congress to fine-tune widely supported encryption legislation, such as the S.A.F.E. Act.”

Thus we have some odd alignments shaping up: Democrat Julian Dixon appears to be on the side of the FBI and federal intelligence agencies while mostly liberal civil liberties organizations are watching conservative Bob Barr champion their cause.

The various versions of the SAFE Act in the House will have to be reconciled after Congress returns from recess on Sept. 8.