WASHINGTON-Congressional offices and one senator are planning to fight a Justice Department proposal that would allow law enforcement to enter people’s homes and disable encryption products without the owners’ knowledge.
Encryption is technology used to scramble computer data. The computer industry has been trying to get export controls on encryption technology relaxed, but the FBI and National Security Agency have resisted.
The DOJ proposal-first exposed in the Washington Post -comes at the same time that more than 250 members of the House of Representatives have sponsored legislation to relax export controls. The bill, known as the Security and Freedom through Encryption, or SAFE, Act has been passed by five different House committees and is expected to be considered by the full House sometime this fall.
While all five committees passed the bill, some of them approved it with substantial amendments. Some of these amendments essentially created new bills. These versions are expected to be considered by the full House as well.
Rep. Bob Goodlatte (R-Va.), the chief sponsor of the SAFE Act, is opposed to the DOJ proposal, but is not expected to debate the issue with DOJ. Rather, he is focusing on passing the legislation, said David Lehman, his chief of staff.
Another SAFE Act co-sponsor, Rep. Bob Barr (R-Ga.), thinks the DOJ proposal is “patently absurd.” Barr sent a letter to Attorney General Janet Reno urging her to kill the proposal.
“This proposal suffers from serious constitutional flaws. It blatantly violates the Fourth Amendment … [It gives] Americans who choose to use or own computers much lower Fourth Amendment protections than those who don’t. It makes no sense to pass a law that establishes a de facto presumption of guilt for anyone who keeps a computer in their home or business,” Barr said.
The DOJ proposal would not only impact American companies wanting to export encryption technology, but would give law enforcement the ability to subpoena third parties for the keys needed to decode those encrypted files.
The proposed legislation, to be called the Cyberspace Electronic Security Act, has not been cleared by the Office of Management and Budget and is being circulated within the Clinton administration, said DOJ spokeswoman Gretchen Michael.
The proposal also could be headed for trouble in the Senate. Sen. Conrad Burns (R-Mont.), chairman of the Senate communications subcommittee, is opposed to the bill, said Ben O’Connell, Burns’ deputy press secretary.
“We are going to be fairly adamantly opposed to this proposal. We really feel it is opening up an enormous loophole that will allow the federal government to seep into every crevice of someone’s private life,” O’Connell said.
The debate over encryption products has been waging since 1996, when the Clinton administration moved encryption export control policy from the jurisdiction of the State Department to the Commerce Department. This move resulted in an export control policy that said U.S. computer companies could not export encryption products with bit strengths greater than 56 bits with restrictions and 40 bits without restrictions. These bit strengths are considered weak by the computer industry, which has developed products with bit strengths of at least 128 bits.
There are not any restrictions on domestic encryption, but the FBI consistently has tried to insert controls similar to the export controls on domestic products. This proposal appears to be the latest attempt.
