A Republican opponent of a House bill that would loosen controls on the use and export of encryption is circulating an amendment that would effectively cripple the legislation.
The amendment, by Representative Benjamin Gilman (R-New York), who chairs the International Relations Committee, would make it unlawful to "manufacture, distribute, sell, or import any product within the United States that can be used to encrypt communications or information if the product does not permit the real-time decryption of such encrypted communications or information."
This means that if law-enforcement officials could not crack an encrypted file within 24 hours - the time that FBI director Louis Freeh and other law enforcement officials say is reasonable for accessing information related to a crime - that strength of encryption would be illegal. The amendment set a civil penalty of US$100,000 for such violations.
Currently, the most complex programs that can be cracked so quickly use 40-bit algorithms. The relative ease of breaking such code makes it nearly worthless on the marketplace, the high-tech industry has warned. Stronger encryption - 56-bit and 128-bit algorithms are being employed in many products now - is widely viewed as a cornerstone to the development of electronic commerce. Stronger code can safeguard data such as credit-card numbers as it travels over networks.
Gilman had the amendment in hand earlier this week when his panel marked up the Security and Freedom through Encryption Act by Representative Bob Goodlatte (R-Virginia). The bill has been condemned by the government's chief law-enforcement and national-security officials because it would prevent domestic controls on encryption while relaxing export controls. The FBI and National Security Agency want a domestic key-recovery system to wiretap digital communications.
Gilman was unsuccessful in trying to insert another provision during the mark-up - one to give the president the power to deny crypto export licenses on national-security grounds.
"The second amendment was a staff proposal that basically was dependent on what happened to the first amendment," said Jerry Lipson, spokesman for the House International Relations Committee. "There was no sentiment that this one should be introduced when the first one failed."
A staffer for a congressman who supports the Goodlatte bill said that the new amendment was a "scare tactic" meant to show committee members that law enforcement won't stand for a relaxed approach to encryption policy. Indeed, FBI director Freeh met one-on-one with 10 International Relations panel members for hour-long sessions in the days before the mark-up, the staffer said. Nine of the 10 voted for the bill anyway.
Some staffers and observers suggest that the Gilman amendment could be introduced when the bill goes to the Select Committee on Intelligence. Although the legislation has 214 co-sponsors in the House, none are members of that panel. And the bill still must reach two other committees before it goes to a full House vote: Commerce and National Security. The deadline for all committees to address the bill is 5 September.
"They don't draft amendments like this for the heck of it," said Alan Davidson, staff counsel for the Center for Democracy and Technology. "It's a glimpse at what could be a very frightening future."
