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105th Congress                                            Rept. 105-108
                        HOUSE OF REPRESENTATIVES

 1st Session                                                     Part 4
_______________________________________________________________________


 
     SECURITY AND FREEDOM THROUGH ENCRYPTION (``SAFE'') ACT OF 1997

                                _______
                                

               September 16, 1997.--Ordered to be printed

                                _______
                                

    Mr. Goss, from the Permanent Select Committee on Intelligence, 
                        submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                        [To accompany H.R. 695]

      [Including cost estimate of the Congressional Budget Office]

  The Permanent Select Committee on Intelligence, to whom was 
referred the bill (H.R. 695) to amend title 18, United States 
Code, to affirm the rights of United States persons to use and 
sell encryption and to relax export controls on encryption, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.
  The amendment is as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) Short Title.--This Act may be cited as the ``Security and Freedom 
Through Encryption (`SAFE') Act of 1997''.
  (b) Table of Contents.--The table of contents is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Statement of policy.

                  TITLE I--DOMESTIC USES OF ENCRYPTION

Sec. 101. Definitions.
Sec. 102. Lawful use of encryption.
Sec. 103. Voluntary private sector participation in key management 
infrastructure.
Sec. 104. Unlawful use of encryption.

                    TITLE II--GOVERNMENT PROCUREMENT

Sec. 201. Federal purchases of encryption products.
Sec. 202. Encryption products purchased with Federal funds.
Sec. 203. Networks established with Federal funds.
Sec. 204. Product labels.
Sec. 205. No private mandate.
Sec. 206. Implementation.

                    TITLE III--EXPORTS OF ENCRYPTION

Sec. 301. Exports of encryption.
Sec. 302. License exception for certain encryption products.
Sec. 303. License exception for telecommunications products.
Sec. 304. Review for certain institutions.
Sec. 305. Encryption industry and information security board.

                    TITLE IV--LIABILITY LIMITATIONS

Sec. 401. Compliance with court order.
Sec. 402. Compliance defense.
Sec. 403. Reasonable care defense.
Sec. 404. Good faith defense.
Sec. 405. Sovereign immunity.
Sec. 406. Civil action, generally.

                   TITLE V--INTERNATIONAL AGREEMENTS

Sec. 501. Sense of congress.
Sec. 502. Failure to negotiate.
Sec. 503. Report to congress.

                   TITLE VI--MISCELLANEOUS PROVISIONS

Sec. 601. Effect on law enforcement activities.
Sec. 602. Interpretation.
Sec. 603. Severability.

SEC. 2. STATEMENT OF POLICY.

  It is the policy of the United States to protect public computer 
networks through the use of strong encryption technology, to promote 
and improve the export of encryption products developed and 
manufactured in the United States, and to preserve public safety and 
national security.

                  TITLE I--DOMESTIC USES OF ENCRYPTION

SEC. 101. DEFINITIONS.

  For purposes of this Act:
          (1) Attorney for the government.--The term ``attorney for the 
        Government'' has the meaning given such term in Rule 54(c) of 
        the Federal Rules of Criminal Procedure, and also includes any 
        duly authorized attorney of a State who is authorized to 
        prosecute criminal offenses within such State.
          (2) Certificate authority.--The term ``certificate 
        authority'' means a person trusted by one or more persons to 
        create and assign public key certificates.
          (3) Communications.--The term ``communications'' means any 
        wire communications or electronic communications as those terms 
        are defined in paragraphs (1) and (12) of section 2510 of title 
        18, United States Code.
          (4) Court of competent jurisdiction.--The term ``court of 
        competent jurisdiction'' means any court of the United States 
        organized under Article III of the Constitution of the United 
        States, the court organized under the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), or a court 
        of general criminal jurisdiction of a State authorized pursuant 
        to the laws of such State to enter orders authorizing searches 
        and seizures.
          (5) Data network service provider.--The term ``data network 
        service provider'' means a person offering any service to the 
        general public that provides the users thereof with the ability 
        to transmit or receive data, including communications.
          (6) Decryption.--The term ``decryption'' means the 
        retransformation or unscrambling of encrypted data, including 
        communications, to its readable plaintext version. To 
        ``decrypt'' data, including communications, is to perform 
        decryption.
          (7) Decryption information.--The term ``decryption 
        information'' means information or technology that enables one 
        to readily retransform or unscramble encrypted data from its 
        unreadable and incomprehensible format to its readable 
        plaintext version.
          (8) Electronic storage.--The term ``electronic storage'' has 
        the meaning given that term in section 2510(17) of title 18, 
        United States Code.
          (9) Encryption.--The term ``encryption'' means the 
        transformation or scrambling of data, including communications, 
        from plaintext to an unreadable or incomprehensible format, 
        regardless of the technique utilized for such transformation or 
        scrambling and irrespective of the medium in which such data, 
        including communications, occur or can be found, for the 
        purposes of protecting the content of such data, including 
        communications. To ``encrypt'' data, including communications, 
        is to perform encryption.
          (10) Encryption product.--The term ``encryption product'' 
        means any software, technology, or mechanism, that can be used 
        to encrypt or decrypt, or has the capability of encrypting or 
        decrypting any data, including communications.
          (11) Foreign availability.--The term ``foreign availability'' 
        has the meaning applied to foreign availability of encryption 
        products subject to controls under the Export Administration 
        Regulations, as in effect on September 1, 1997.
          (12) Government.--The term ``Government'' means the 
        Government of the United States and any agency or 
        instrumentality thereof, or the government of any State.
          (13) Investigative or law enforcement officer.--The term 
        ``investigative or law enforcement officer'' has the meaning 
        given that term in section 2510(7) of title 18, United States 
        Code.
          (14) Key recovery agent.--The term ``key recovery agent'' 
        means a person trusted by another person or persons to hold and 
        maintain sufficient decryption information to allow for the 
        immediate decryption of the encrypted data or communications of 
        another person or persons for whom that information is held, 
        and who holds and maintains that information as a business or 
        governmental practice, whether or not for profit. The term 
        ``key recovery agent'' includes any person who holds his or her 
        decryption information.
          (15) National security.--The term ``national security'' means 
        the national defense, foreign relations, or economic interests 
        of the United States.
          (16) Plaintext.--The term ``plaintext'' means the readable or 
        comprehensible format of data, including communications, prior 
        to its being encrypted or after it has been decrypted.
          (17) Plainvoice.--The term ``plainvoice'' means communication 
        specific plaintext.
          (18) Secretary.--The term ``Secretary'' means the Secretary 
        of Commerce, unless otherwise specifically identified.
          (19) State.--The term ``State'' has the meaning given that 
        term in section 2510(3) of title 18, United States Code.
          (20) Telecommunications carrier.--The term 
        ``telecommunications carrier'' has the meaning given that term 
        in section 102(8) of the Communications Assistance for Law 
        Enforcement Act (47 U.S.C. 1001(8)).
          (21) Telecommunications system.--The term 
        ``telecommunications system'' means any equipment, technology, 
        or related software used in the movement, switching, 
        interchange, transmission, reception, or internal signaling of 
        data, including communications over wire, fiber optic, radio 
        frequency, or other medium.
          (22) United states person.--The term ``United States person'' 
        means--
                  (A) any citizen of the United States;
                  (B) any other person organized under the laws of any 
                State; and
                  (C) any person organized under the laws of any 
                foreign country who is owned or controlled by 
                individuals or persons described in subparagraphs (A) 
                and (B).

SEC. 102. LAWFUL USE OF ENCRYPTION.

  Except as otherwise provided by this Act or otherwise provided by 
law, it shall be lawful for any person within any State and for any 
United States person to use any encryption product, regardless of 
encryption algorithm selected, encryption key length chosen, or 
implementation technique or medium used.

SEC. 103. VOLUNTARY PRIVATE SECTOR PARTICIPATION IN KEY MANAGEMENT 
                    INFRASTRUCTURE.

  (a) Use is Voluntary.--The use of certificate authorities or key 
recovery agents is voluntary.
  (b) Regulations.--The Secretary shall promulgate regulations 
establishing standards for creating key management infrastructures. 
Such regulations should--
          (1) allow for the voluntary participation by private persons 
        and non-Federal entities; and
          (2) promote the development of certificate authorities and 
        key recovery agents.
  (c) Registration of Certificate Authorities and Key Recovery 
Agents.--Certificate authorities and key recovery agents meeting the 
standards established by the Secretary may be registered by the 
Secretary if they so choose, and may identify themselves as meeting the 
standards of the Secretary.

SEC. 104. UNLAWFUL USE OF ENCRYPTION.

  (a) In General.--Part I of title 18, United States Code, is amended 
by inserting after chapter 121 the following new chapter:

        ``CHAPTER 122--ENCRYPTED DATA, INCLUDING COMMUNICATIONS

``Sec.
``2801. Unlawful use of encryption in furtherance of a criminal act.
``2802. Privacy protection.
``2803. Unlawful sale of encryption.
``2804. Encryption products manufactured and intended for use in the 
United States.
``2805. Injunctive relief and proceedings.
``2806. Court order access to plaintext.
``2807. Notification procedures.
``2808. Lawful use of plaintext or decryption information.
``2809. Identification of decryption information.
``2810. Unlawful export of certain encryption products.
``2811. Definitions.

``Sec. 2801. Unlawful use of encryption in furtherance of a criminal 
                    act

  ``(a) Prohibited Acts.--Whoever knowingly uses encryption in 
furtherance of the commission of a criminal offense for which the 
person may be prosecuted in a district court of the United States 
shall--
          ``(1) in the case of a first offense under this section, be 
        imprisoned for not more than 5 years, or fined under this 
        title, or both; and
          ``(2) in the case of a second or subsequent offense under 
        this section, be imprisoned for not more than 10 years, or 
        fined under this title, or both.
  ``(b) Consecutive Sentence.--Notwithstanding any other provision of 
law, the court shall not place on probation any person convicted of a 
violation of this section, nor shall the term of imprisonment imposed 
under this section run concurrently with any other term of imprisonment 
imposed for the underlying criminal offense.
  ``(c) Probable Cause Not Constituted By Use of Encryption.--The use 
of encryption alone shall not constitute probable cause to believe that 
a crime is being or has been committed.

``Sec. 2802. Privacy protection

  ``(a) In General.--It shall be unlawful for any person to 
intentionally--
          ``(1) obtain or use decryption information without lawful 
        authority for the purpose of decrypting data, including 
        communications;
          ``(2) exceed lawful authority in decrypting data, including 
        communications;
          ``(3) break the encryption code of another person without 
        lawful authority for the purpose of violating the privacy or 
        security of that person or depriving that person of any 
        property rights;
          ``(4) impersonate another person for the purpose of obtaining 
        decryption information of that person without lawful authority;
          ``(5) facilitate or assist in the encryption of data, 
        including communications, knowing that such data, including 
        communications, are to be used in furtherance of a crime; or
          ``(6) disclose decryption information in violation of a 
        provision of this chapter.
  ``(b) Criminal Penalty.--Whoever violates this section shall be 
imprisoned for not more than 10 years, or fined under this title, or 
both.

``Sec. 2803. Unlawful sale of encryption

  ``Whoever, after January 31, 2000, sells in interstate or foreign 
commerce any encryption product that does not include features or 
functions permitting duly authorized persons immediate access to 
plaintext or immediate decryption capabilities shall be imprisoned for 
not more than 5 years, fined under this title, or both.

``Sec. 2804. Encryption products manufactured and intended for use in 
                    the United States

  ``(a) Public Network Service Providers.--After January 31, 2000, 
public network service providers offering encryption products or 
encryption services shall ensure that such products or services enable 
the immediate decryption or access to plaintext of the data, including 
communications, encrypted by such products or services on the public 
network upon receipt of a court order or warrant, pursuant to section 
2806.
  ``(b) Manufacturers, Distributors, and Importers.--After January 31, 
2000, it shall be unlawful for any person to manufacture for 
distribution, distribute, or import encryption products intended for 
sale or use in the United States, unless that product--
          ``(1) includes features or functions that provide an 
        immediate access to plaintext capability, through any means, 
        mechanism, or technological method that--
                  ``(A) permits immediate decryption of the encrypted 
                data, including communications, upon the receipt of 
                decryption information by an authorized party in 
                possession of a facially valid order issued by a court 
                of competent jurisdiction; and
                  ``(B) allows the decryption of encrypted data, 
                including communications, without the knowledge or 
                cooperation of the person being investigated, subject 
                to the requirements set forth in section 2806;
          ``(2) can be used only on systems or networks that include 
        features or functions that provide an immediate access to 
        plaintext capability, through any means, mechanism, or 
        technological method that--
                  ``(A) permits immediate decryption of the encrypted 
                data, including communications, upon the receipt of 
                decryption information by an authorized party in 
                possession of a facially valid order issued by a court 
                of competent jurisdiction; and
                  ``(B) allows the decryption of encrypted data, 
                including communications, without the knowledge or 
                cooperation of the person being investigated, subject 
                to the requirements set forth in section 2806; or
          ``(3) otherwise meets the technical requirements and 
        functional criteria promulgated by the Attorney General under 
        subsection (c).
  ``(c) Attorney General Criteria.--
          ``(1) Publication of requirements.--Within 180 days after the 
        date of the enactment of this chapter, the Attorney General 
        shall publish in the Federal Register technical requirements 
        and functional criteria for complying with the decryption 
        requirements set forth in this section.
          ``(2) Procedures for advisory opinions.--Within 180 days 
        after the date of the enactment of this chapter, the Attorney 
        General shall promulgate procedures by which data network 
        service providers and encryption product manufacturers, 
        sellers, re-sellers, distributors, and importers may obtain 
        advisory opinions as to whether an encryption product intended 
        for sale or use in the United States after January 31, 2000, 
        meets the requirements of this section and the technical 
        requirements and functional criteria promulgated pursuant to 
        paragraph (1).
          ``(3) Particular methodology not required.--Nothing in this 
        chapter or any other provision of law shall be construed as 
        requiring the implementation of any particular decryption 
        methodology in order to satisfy the requirements of subsections 
        (a) and (b), or the technical requirements and functional 
        criteria required by the Attorney General under paragraph (1).
  ``(d) Use of Prior Products Lawful.--After January 31, 2000, it shall 
not be unlawful to use any encryption product purchased or in use prior 
to such date.

``Sec. 2805. Injunctive relief and proceedings

  ``(a) Injunction.--Whenever it appears to the Secretary or the 
Attorney General that any person is engaged in, or is about to engage 
in, any act that constitutes, or would constitute, a violation of 
section 2804, the Attorney General may initiate a civil action in a 
district court of the United States to enjoin such violation. Upon the 
filing of the complaint seeking injunctive relief by the Attorney 
General, the court shall automatically issue a temporary restraining 
order against the party being sued.
  ``(b) Burden of Proof.--In a suit brought by the Attorney General 
under subsection (a), the burden shall be upon the Government to 
establish by a preponderance of the evidence that the encryption 
product involved does not comport with the requirements set forth by 
the Attorney General pursuant to section 2804 providing for immediate 
access to plaintext by Federal, State, or local authorities.
  ``(c) Closing of Proceedings.--(1) Upon motion of the party against 
whom injunction is being sought--
          ``(A) any or all of the proceedings under this section shall 
        be closed to the public; and
          ``(B) public disclosure of the proceedings shall be treated 
        as contempt of court.
  ``(2) Upon a written finding by the court that public disclosure of 
information relevant to the prosecution of the injunction or relevant 
to a determination of thefactual or legal issues raised in the case 
would cause irreparable or financial harm to the party against whom the 
suit is brought, or would otherwise disclose proprietary information of 
any party to the case, all proceedings shall be closed to members of 
the public, except the parties to the suit, and all transcripts, 
motions, and orders shall be placed under seal to protect their 
disclosure to the general public.
  ``(d) Advisory Opinion as Defense.--It is an absolute defense to a 
suit under this subsection that the party against whom suit is brought 
obtained an advisory opinion from the Attorney General pursuant to 
section 2804(c) and that the product at issue in the suit comports in 
every aspect with the requirements announced in such advisory opinion.
  ``(e) Basis for Permanent Injunction.--The court shall issue a 
permanent injunction against the distribution of, and any future 
manufacture of, the encryption product at issue in the suit filed under 
subsection (a) if the court finds by a preponderance of the evidence 
that the product does not meet the requirements set forth by the 
Attorney General pursuant to section 2804 providing for immediate 
access to plaintext by Federal, State, or local authorities.
  ``(f) Appeals.--Either party may appeal, to the appellate court with 
jurisdiction of the case, any adverse ruling by the district court 
entered pursuant to this section. For the purposes of appeal, the 
parties shall be governed by the Federal Rules of Appellate Procedure, 
except that the Government shall file its notice of appeal not later 
than 30 days after the entry of the final order on the docket of the 
district court. The appeal of such matter shall be considered on an 
expedited basis and resolved as soon as practicable.

``Sec. 2806. Court order access to plaintext

  ``(a) Court Order.--(1) A court of competent jurisdiction shall issue 
an order, ex parte, granting an investigative or law enforcement 
officer immediate access to the plaintext of encrypted data, including 
communications, or requiring any person in possession of decryption 
information to provide such information to a duly authorized 
investigative or law enforcement officer--
          ``(A) upon the application by an attorney for the Government 
        that--
                  ``(i) is made under oath or affirmation by the 
                attorney for the Government; and
                  ``(ii) provides a factual basis establishing the 
                relevance that the plaintext or decryption information 
                being sought has to a law enforcement or foreign 
                counterintelligence investigation then being conducted 
                pursuant to lawful authorities; and
          ``(B) if the court finds, in writing, that the plaintext or 
        decryption information being sought is relevant to an ongoing 
        lawful law enforcement or foreign counterintelligence 
        investigation and the investigative or law enforcement officer 
        is entitled to such plaintext or decryption information.
  ``(2) The order issued by the court under this section shall be 
placed under seal, except that a copy may be made available to the 
investigative or law enforcement officer authorized to obtain access to 
the plaintext of the encrypted information, or authorized to obtain the 
decryption information sought in the application. Such order shall also 
be made available to the person responsible for providing the plaintext 
or the decryption information, pursuant to such order, to the 
investigative or law enforcement officer.
  ``(3) Disclosure of an application made, or order issued, under this 
section, is not authorized, except as may otherwise be specifically 
permitted by this section or another order of the court.
  ``(b) Other Orders.--An attorney for the Government may make 
application to a district court of the United States for an order under 
subsection (a), upon a request from a foreign country pursuant to a 
Mutual Legal Assistance Treaty with such country that is in effect at 
the time of the request from such country.
  ``(c) Record of Access Required.--(1) There shall be created an 
electronic record, or similar type record, of each instance in which an 
investigative or law enforcement officer, pursuant to an order under 
this section, gains access to the plaintext of otherwise encrypted 
information, or is provided decryption information, without the 
knowledge or consent of the owner of the data, including 
communications, who is the user of the encryption product involved.
  ``(2) The court issuing the order under this section shall require 
that the electronic or similar type of record described in paragraph 
(1) is maintained in a place and a manner that is not within the 
custody or control of an investigative or law enforcement officer 
gaining the access or provided the decryption information. The record 
shall be tendered to the court, upon notice from the court.
  ``(3) The court receiving such electronic or similar type of record 
described in paragraph (1) shall make the original and a certified copy 
of the record available to the attorney for the Government making 
application under this section, and to the attorney for, or directly 
to, the owner of the data, including communications, who is the user of 
the encryption product.
  ``(d) Authority To Intercept Communications Not Increased.--Nothing 
in this chapter shall be construed to enlarge or modify the 
circumstances or procedures under which a Government entity is entitled 
to intercept or obtain oral, wire, or electronic communications or 
information.
  ``(e) Construction.--This chapter shall be strictly construed to 
apply only to a Government entity's ability to decrypt data, including 
communications, for which it has previously obtained lawful authority 
to intercept or obtain pursuant to other lawful authorities that would 
otherwise remain encrypted.

``Sec. 2807. Notification procedures

  ``(a) In General.--Within a reasonable time, but not later than 90 
days after the filing of an application for an order under section 2806 
which is granted, the court shall cause to be served, on the persons 
named in the order or the application, and such other parties whose 
decryption information or whose plaintext has been provided to an 
investigative or law enforcement officer pursuant to this chapter as 
the court may determine that is in the interest of justice, an 
inventory which shall include notice of--
          ``(1) the fact of the entry of the order or the application;
          ``(2) the date of the entry of the application and issuance 
        of the order; and
          ``(3) the fact that the person's decryption information or 
        plaintext data, including communications, have been provided or 
        accessed by an investigative or law enforcement officer.
The court, upon the filing of a motion, may make available to that 
person or that person's counsel, for inspection, such portions of the 
plaintext, applications, and orders as the court determines to be in 
the interest of justice. On an ex parte showing of good cause to a 
court of competent jurisdiction, the serving of the inventory required 
by this subsection may be postponed.
  ``(b) Admission Into Evidence.--The contents of any encrypted 
information that has been obtained pursuant to this chapter or evidence 
derived therefrom shall not be received in evidence or otherwise 
disclosed in any trial, hearing, or other proceeding in a Federal or 
State court unless each party, not less than 10 days before the trial, 
hearing, or proceeding, has been furnished with a copy of the order, 
and accompanying application, under which the decryption or access to 
plaintext was authorized or approved. This 10-day period may be waived 
by the court if the court finds that it was not possible to furnish the 
party with the information described in the preceding sentence within 
10 days before the trial, hearing, or proceeding and that the party 
will not be prejudiced by the delay in receiving such information.
  ``(c) Contempt.--Any violation of the provisions of this section may 
be punished by the court as a contempt thereof.
  ``(d) Motion To Suppress.--Any aggrieved person in any trial, 
hearing, or proceeding in or before any court, department, officer, 
agency, regulatory body, or other authority of the United States or a 
State may move to suppress the contents of any decrypted data, 
including communications, obtained pursuant to this chapter, or 
evidence derived therefrom, on the grounds that--
          ``(1) the plaintext was unlawfully decrypted or accessed;
          ``(2) the order of authorization or approval under which it 
        was decrypted or accessed is insufficient on its face; or
          ``(3) the decryption was not made in conformity with the 
        order of authorization or approval.
Such motion shall be made before the trial, hearing, or proceeding 
unless there was no opportunity to make such motion, or the person was 
not aware of the grounds of the motion. If the motion is granted, the 
plaintext of the decrypted data, including communications, or evidence 
derived therefrom, shall be treated as having been obtained in 
violation of this chapter. The court, upon the filing of such motion by 
the aggrieved person, may make available to the aggrieved person or 
that person's counsel for inspection such portions of the decrypted 
plaintext, or evidence derived therefrom, as the court determines to be 
in the interests of justice.
  ``(e) Appeal by United States.--In addition to any other right to 
appeal, the United States shall have the right to appeal from an order 
granting a motion to suppress made under subsection (d), or the denial 
of an application for an order under section 2806, if the United States 
attorney certifies to the court or other official granting such motion 
or denying such application that the appeal is not taken for purposes 
of delay. Such appeal shall be taken within 30 days after the date the 
order was entered on the docket and shall be diligently prosecuted.
  ``(f) Civil Action for Violation.--Except as otherwise provided in 
this chapter, any person described in subsection (g) may in a civil 
action recover from the United States Government the actual damages 
suffered by the person as a result of a violation described in that 
subsection, reasonable attorney's fees, and other litigation costs 
reasonably incurred in prosecuting such claim.
  ``(g) Covered Persons.--Subsection (f) applies to any person whose 
decryption information--
          ``(1) is knowingly obtained without lawful authority by an 
        investigative or law enforcement officer;
          ``(2) is obtained by an investigative or law enforcement 
        officer with lawful authority and is knowingly used or 
        disclosed by such officer unlawfully; or
          ``(3) is obtained by an investigative or law enforcement 
        officer with lawful authority and whose decryption information 
        is unlawfully used to disclose the plaintext of the data, 
        including communications.
  ``(h) Limitation.--A civil action under subsection (f) shall be 
commenced not later than 2 years after the date on which the unlawful 
action took place, or 2 years after the date on which the claimant 
first discovers the violation, whichever is later.
  ``(i) Exclusive Remedies.--The remedies and sanctions described in 
this chapter with respect to the decryption of data, including 
communications, are the only judicial remedies and sanctions for 
violations of this chapter involving such decryptions, other than 
violations based on the deprivation of any rights, privileges, or 
immunities secured by the Constitution.
  ``(j) Technical Assistance by Providers.--A provider of encryption 
technology or network service that has received an order issued by a 
court pursuant to this chapter shall provide to the investigative or 
law enforcement officer concerned such technical assistance as is 
necessary to execute the order. Such provider may, however, move the 
court to modify or quash the order on the ground that its assistance 
with respect to the decryption or access to plaintext cannot be 
performed in a timely or reasonable fashion. The court, upon notice to 
the Government, shall decide such motion expeditiously.
  ``(k) Reports to Congress.--In May of each year, the Attorney 
General, or an Assistant Attorney General specifically designated by 
the Attorney General, shall report in writing to Congress on the number 
of applications made and orders entered authorizing Federal, State, and 
local law enforcement access to decryption information for the purposes 
of reading the plaintext of otherwise encrypted data, including 
communications, pursuant to this chapter. Such reports shall be 
submitted to the Committees on the Judiciary of the House of 
Representatives and of the Senate, and to the Permanent Select 
Committee on Intelligence for the House of Representatives and the 
Select Committee on Intelligence for the Senate.

``Sec. 2808. Lawful use of plaintext or decryption information

  ``(a) Authorized Use of Decryption Information.--
          ``(1) Criminal investigations.--An investigative or law 
        enforcement officer to whom plaintext or decryption information 
        is provided may use such plaintext or decryption information 
        for the purposes of conducting a lawful criminal investigation 
        or foreign counterintelligence investigation, and for the 
        purposes of preparing for and prosecuting any criminal 
        violation of law.
          ``(2) Civil redress.--Any plaintext or decryption information 
        provided under this chapter to an investigative or law 
        enforcement officer may not be disclosed, except by court 
        order, to any other person for use in a civil proceeding that 
        is unrelated to a criminal investigation and prosecution for 
        which the plaintext or decryption information is authorized 
        under paragraph (1). Such order shall only issue upon a showing 
        by the party seeking disclosure that there is no alternative 
        means of obtaining the plaintext, or decryption information, 
        being sought and the court also finds that the interests of 
        justice would not be served by nondisclosure.
  ``(b) Limitation.--An investigative or law enforcement officer may 
not use decryption information obtained under this chapter to determine 
the plaintext of any data, including communications, unless it has 
obtained lawful authority to obtain such data, including 
communications, under other lawful authorities.
  ``(c) Return of Decryption Information.--An attorney for the 
Government shall, upon the issuance of an order of a court of competent 
jurisdiction--
          ``(1)(A) return any decryption information to the person 
        responsible for providing it to an investigative or law 
        enforcement officer pursuant to this chapter; or
          ``(B) destroy such decryption information, if the court finds 
        that the interests of justice or public safety require that 
        such decryption information should not be returned to the 
        provider; and
          ``(2) within 10 days after execution of the court's order to 
        destroy the decryption information--
                  ``(A) certify to the court that the decryption 
                information has either been returned or destroyed 
                consistent with the court's order; and
                  ``(B) notify the provider of the decryption 
                information of the destruction of such information.
  ``(d) Other Disclosure of Decryption Information.--Except as 
otherwise provided in section 2806, a key recovery agent may not 
disclose decryption information stored with the key recovery agent by a 
person unless the disclosure is--
          ``(1) to the person, or an authorized agent thereof;
          ``(2) with the consent of the person, including pursuant to a 
        contract entered into with the person;
          ``(3) pursuant to a court order upon a showing of compelling 
        need for the information that cannot be accommodated by any 
        other means if--
                  ``(A) the person who supplied the information is 
                given reasonable notice, by the person seeking the 
                disclosure, of the court proceeding relevant to the 
                issuance of the court order; and
                  ``(B) the person who supplied the information is 
                afforded the opportunity to appear in the court 
                proceeding and contest the claim of the person seeking 
                the disclosure;
          ``(4) pursuant to a determination by a court of competent 
        jurisdiction that another person is lawfully entitled to hold 
        such decryption information, including determinations arising 
        from legal proceedings associated with the incapacity, death, 
        or dissolution of any person; or
          ``(5) otherwise permitted by a provision of this chapter or 
        otherwise permitted by law.

``Sec. 2809. Identification of decryption information

  ``(a) Identification.--To avoid inadvertent disclosure, any person 
who provides decryption information to an investigative or law 
enforcement officer pursuant to this chapter shall specifically 
identify that part of the material provided that discloses decryption 
information as such.
  ``(b) Responsibility of Investigative or Law Enforcement Officer.--
The investigative or law enforcement officer receiving any decryption 
information under this chapter shall maintain such information in 
facilities and in a method so as to reasonably assure that inadvertent 
disclosure does not occur.

``Sec. 2810. Unlawful export of certain encryption products

  ``Whoever, after January 31, 2000, knowingly exports an encryption 
product that does not include features or functions providing duly 
authorized persons immediate access to plaintext or immediate 
decryption capabilities, as required under law, shall be imprisoned for 
not more than 5 years, fined under this title, or both.

``Sec. 2811. Definitions

  ``The definitions set forth in section 101 of the Security and 
Freedom through Encryption (`SAFE') Act of 1997 shall apply to this 
chapter.''.
  (b) Conforming Amendment.--The table of chapters for part I of title 
18, United States Code, is amended by inserting after the item relating 
to chapter 121 the following new item:

``122. Encrypted data, including communications.............    2801''.

                    TITLE II--GOVERNMENT PROCUREMENT

SEC. 201. FEDERAL PURCHASES OF ENCRYPTION PRODUCTS.

  After January 1, 1999, any encryption product or service purchased or 
otherwise procured by the United States Government to provide the 
security service of data confidentiality for a Federal computer system 
shall include a technique enabling immediate decryption by an 
authorized party without the knowledge or cooperation of the person 
using such encryption products or services.

SEC. 202. ENCRYPTION PRODUCTS PURCHASED WITH FEDERAL FUNDS.

  After January 1, 1999, any encryption product or service purchased 
directly with Federal funds to provide the security service of data 
confidentiality shall include a technique enabling immediate decryption 
by an authorized party without the knowledge or cooperation of the 
person using such encryption product or service unless the Secretary, 
with the concurrence of the Attorney General, determines implementing 
this requirement would not promote the purposes of this Act.

SEC. 203. NETWORKS ESTABLISHED WITH FEDERAL FUNDS.

  After January 1, 1999, any communications network established with 
the use of Federal funds shall use encryption products which include 
techniques enabling immediate decryption by an authorized party without 
the knowledge or cooperation of the person using such encryption 
products or services unless the Secretary, with the concurrence of the 
Attorney General, determines implementing this requirement would not 
promote the purposes of this Act.

SEC. 204. PRODUCT LABELS.

  An encryption product may be labeled to inform users that the product 
is authorized for sale to or for use in transactions and communications 
with the United States Government under this title.

SEC. 205. NO PRIVATE MANDATE.

  The United States Government may not mandate the use of encryption 
standards for the private sector other than for use with computer 
systems, networks, or other systems of the United States Government, or 
systems or networks created using Federal funds.

SEC. 206. IMPLEMENTATION.

  (a) Exclusion.--Nothing in this title shall apply to encryption 
products and services used solely for access control, authentication, 
integrity, nonrepudiation, digital signatures, or other similar 
purposes.
  (b) Rulemaking.--The Secretary, in consultation with the Attorney 
General and other affected agencies, may through rules provide for the 
orderly implementation of this title and the effective use of secure 
public networks.

                    TITLE III--EXPORTS OF ENCRYPTION

SEC. 301. EXPORTS OF ENCRYPTION.

  (a) Coordination of Executive Branch Agencies Required.--The 
Secretary, in close coordination with the Secretary of Defense and any 
other executive branch department or agency with responsibility for 
protecting the national security, shall have the authority to control 
the export of encryption products not controlled on the United States 
Munitions List.
  (b) Decisions Not Subject to Judicial Review.--Decisions made by the 
Secretary pursuant to subsection (a) with respect to exports of 
encryption products under this title shall not be subject to judicial 
review.

SEC. 302. LICENSE EXCEPTION FOR CERTAIN ENCRYPTION PRODUCTS.

  (a) License Exception.--After January 31, 2000, encryption products, 
without regard to encryption strength, shall be eligible for export 
under a license exception if such encryption product--
          (1) is submitted to the Secretary for a 1-time product 
        review;
          (2) does not include features or functions that would 
        otherwise require licensing under applicable regulations;
          (3) is not destined for countries, end users, or end uses 
        that the Secretary, in coordination with the Secretary of 
        Defense and other executive branch departments or agencies with 
        responsibility for protecting the national security, by 
        regulation, has determined should be ineligible to receive such 
        products, and is otherwise qualified for export; and
          (4)(A) includes features or functions providing an immediate 
        access to plaintext capability, if there is lawful authority 
        for such immediate access; or
          (B) includes features or functions providing an immediate 
        decryption capability of the encrypted data, including 
        communications, upon the receipt of decryption information by 
        an authorized party, and such decryption can be accomplished 
        without unauthorized disclosure.
  (b) Enabling of Decryption Capabilities.--The features or functions 
described in subsection (a)(4) need not be enabled by the manufacturer 
before or at the time of export for purposes of this title. Such 
features or functions may be enabled by the purchaser or end user.
  (c) Responsibilities of the Secretary.--The Secretary, in close 
coordination with the Secretary of Defense and other executive branch 
departments or agencies with responsibility for protecting the national 
security, shall--
          (1) specify, by regulation, the information that must be 
        submitted for the 1-time review referred to in this section; 
        and
          (2) make all export determinations under this title within 30 
        days following the date of submission to the Secretary of--
                  (A) the completed application for a license 
                exception; and
                  (B) the encryption product intended for export that 
                is to be reviewed as required by this section.
  (d) Exercise of Other Authorities.--The Secretary, and the Secretary 
of Defense, may exercise the authorities they have under other 
provisions of law, including the Export Administration Act of 1979, as 
continued in effect under the International Emergency Economic Powers 
Act, to carry out this section.
  (e) Presumption in Favor of Exports.--There shall be a presumption in 
favor of export of encryption products under this title.
  (f) Waiver Authority.--The President may by Executive order waive any 
provision of this title, or the applicability of any such provision to 
a person or entity, if the President determines that the waiver is in 
the interests of national security or public safety and security. The 
President shall submit a report to the relevant committees of the 
Congress not later than 15 days after such determination. The report 
shall include the factual basis upon which such determination was made. 
The report may be in classified format.
  (g) Relevant Committees.--The relevant committees of the Congress 
described in subsection (f) are the Committee on International 
Relations, the Committee on the Judiciary, the Committee on National 
Security, the Permanent Select Committee on Intelligence of the House 
of Representatives, and the Committee on Foreign Relations, the 
Committee on the Judiciary, the Committee on Armed Services, and the 
Select Committee on Intelligence of the Senate.

SEC. 303. LICENSE EXCEPTION FOR TELECOMMUNICATIONS PRODUCTS.

  After a 1-time review as described in section 302, the Secretary 
shall authorize for export under a license exception voice encryption 
products that do not contain decryption or access to plainvoice 
features or functions otherwise required in section 302, if the 
Secretary, after consultation with relevant executive branch 
departments or agencies, determines that--
          (1) information recovery requirements for such exports would 
        disadvantage United States exporters; and
          (2) such exports under a license exception would not create a 
        risk to the foreign policy, non-proliferation, or national 
        security of the United States.

SEC. 304. REVIEW FOR CERTAIN INSTITUTIONS.

  The Secretary, in consultation with other executive branch 
departments or agencies, shall establish a procedure for expedited 
review of export license applications involving encryption products for 
use by qualified banks, financial institutions, subsidiaries of 
companies owned or controlled by United States persons, or other users 
specifically authorized by the Secretary.

SEC. 305. ENCRYPTION INDUSTRY AND INFORMATION SECURITY BOARD.

  (a) Encryption Industry and Information Security Board Established.--
There is hereby established an Encryption Industry and Information 
Security Board. The Board shall undertake an advisory role for the 
President.
  (b) Purposes.--The purposes of the Board are--
          (1) to provide a forum to foster communication and 
        coordination between industry and the Federal Government on 
        matters relating to the use of encryption products;
          (2) to promote the export of encryption products manufactured 
        in the United States;
          (3) to encourage research and development of products that 
        will foster electronic commerce;
          (4) to recommend policies enhancing the security of public 
        networks;
          (5) to promote the protection of intellectual property and 
        privacy rights of individuals using public networks;
          (6) to enable the United States to effectively and 
        continually understand the benefits and risks to its national 
        security, law enforcement, and public safety interests by 
        virtue of the proliferation of strong encryption on the global 
        market;
          (7) to evaluate and make recommendations regarding the 
        further development and use of encryption;
          (8) to advance the development of international standards 
        regarding interoperability and global use of encryption 
        products; and
          (9) to evaluate the foreign availability of encryption 
        products and their threat to United States industry.
  (c) Membership.--(1) The Board shall be composed of 13 members, as 
follows:
          (A) The Secretary, or the Secretary's designee, who shall 
        chair the Board.
          (B) The Attorney General, or the Director of the Federal 
        Bureau of Investigation, or a respective designee.
          (C) The Secretary of Defense, or the Secretary's designee.
          (D) the Director of Central Intelligence, or his or her 
        designee.
          (E) The Special Assistant to the President for National 
        Security Affairs, or his or her designee.
          (F) Two private sector individuals, appointed by the 
        President, who have expertise in consumer and privacy interests 
        relating to or affected by information security technology.
          (G) Six representatives from the private sector who have 
        expertise in the development, operation, marketing, law, or 
        public policy relating to information security or technology.
  (2) The six private sector representatives described in paragraph 
(1)(G) shall be appointed as follows:
          (A) Two by the Speaker of the House of Representatives.
          (B) One by the Minority Leader of the House of 
        Representatives.
          (C) Two by the Majority Leader of the Senate.
          (D) One by the Minority Leader of the Senate.
  (e) Meetings.--The Board shall meet at such times and in such places 
as the Secretary may prescribe, but not less frequently than every four 
months. The Federal Advisory Committee Act (5 U.S.C. App.) does not 
apply to the Board or to meetings held by the Board under this section.
  (f) Findings and Recommendations.--The chair of the Board shall 
convey the findings and recommendations of the Board to the President 
and to the Congress within 30 days after each meeting of the Board. The 
recommendations of the Board are not binding upon the President.
  (g) Foreign Availability.--The consideration of foreign availability 
by the Board shall include computer software that is distributed over 
the Internet or advertised for sale, license, or transfer, including 
over-the-counter retail sales, mail order transactions, telephone order 
transactions, electronic distribution, or sale on approval.

                    TITLE IV--LIABILITY LIMITATIONS

SEC. 401. COMPLIANCE WITH COURT ORDER.

  (a) No Liability for Compliance.--Subject to subsection (b), no civil 
or criminal liability under this Act, or under any other provision of 
law, shall attach to any person for disclosing or providing--
          (1) the plaintext of encrypted data, including 
        communications;
          (2) the decryption information of such encrypted data, 
        including communications; or
          (3) technical assistance for access to the plaintext of, or 
        decryption information for, encrypted data, including 
        communications.
  (b) Exception.--Subsection (a) shall not apply to a person who 
provides plaintext or decryption information to another and is not 
authorized by court order to disclose such plaintext or decryption 
information.

SEC. 402. COMPLIANCE DEFENSE.

  Compliance with the provisions of sections 2806, 2807, 2808, or 2809 
of title 18, United States Code, as added by section 104(a) of this 
Act, or any regulations authorized thereunder, shall provide a complete 
defense for any civil action for damages based upon activities covered 
by this Act, other than an action founded on contract.

SEC. 403. REASONABLE CARE DEFENSE.

  The participation by person in the key management infrastructure 
established by regulation for United States Government information 
security operations under section 103 shall be treated as evidence of 
reasonable care or due diligence in any proceeding where the 
reasonableness of one's actions is an element of the claim at issue.

SEC. 404. GOOD FAITH DEFENSE.

  An objectively reasonable reliance on the legal authority provided by 
this Act and the amendments made by this Act, requiring or authorizing 
access to the plaintext of otherwise encrypted data, including 
communications, or to the decryption information that will allow the 
immediate decryption of data, including communications, that is 
otherwise encrypted, shall be a complete defense to any criminal or 
civil action that may be brought under the laws of the United States or 
any State.

SEC. 405. SOVEREIGN IMMUNITY.

  Except as otherwise specifically provided otherwise, nothing in this 
Act or the amendments made by this Act, or any regulations promulgated 
thereunder, modifies or amends the sovereign immunity of the United 
States.

SEC. 406. CIVIL ACTION, GENERALLY.

  A civil action may be brought against any person who, regardless of 
that person's participation in the key management infrastructure to be 
established by regulations promulgated by the Secretary pursuant to 
section 103, violates or acts in a manner that is inconsistent with or 
violates the provisions or intent of this Act or the amendments made by 
this Act.

                   TITLE V--INTERNATIONAL AGREEMENTS

SEC. 501. SENSE OF CONGRESS.

  It is the sense of Congress that--
          (1) the President should conduct negotiations with foreign 
        governments for the purposes of mutual recognition of any key 
        management infrastructures, and their component parts, that 
        exist or are developed; and
          (2) such mutual recognition agreements will safeguard the 
        privacy of the citizens of the United States, prevent economic 
        espionage, and enhance the information security needs of the 
        United States.

SEC. 502. FAILURE TO NEGOTIATE.

  The President may consider a government's refusal to negotiate mutual 
recognition agreements described in section 501 when considering the 
participation of the United States in any cooperation or assistance 
program with that country.

SEC. 503. REPORT TO CONGRESS.

  (a) Report to Congress.--The President shall report annually to the 
Congress on the status of the international effort outlined by section 
501.
  (b) First Report.--The first report required under subsection (a) 
shall be submitted in unclassified form no later than December 15, 
1998.

                   TITLE VI--MISCELLANEOUS PROVISIONS

SEC. 601. EFFECT ON LAW ENFORCEMENT ACTIVITIES.

  (a) Collection of Information by Attorney General.--The Attorney 
General shall compile, and maintain in classified form, data on the 
instances in which encryption has interfered with, impeded, or 
obstructed the ability of the Department of Justice to enforce the 
criminal laws of the United States.
  (b) Availability of Information to the Congress.--The information 
compiled under subsection (a), including an unclassified summary 
thereof, shall be made available, upon request, to any Member of 
Congress.

SEC. 602. INTERPRETATION.

  Nothing contained in this Act or the amendments made by this Act 
shall be deemed to--
          (1) preempt or otherwise affect the application of the Arms 
        Export Control Act (22 U.S.C. 2751 et seq.), the Export 
        Administration Act of 1979 (50 U.S.C. App. 2401 et seq.), or 
        the International Emergency Economic Powers Act (50 U.S.C. 1701 
        et seq.) or any regulations promulgated thereunder;
          (2) affect foreign intelligence activities of the United 
        States; or
          (3) negate or diminish any intellectual property protections 
        under the laws of the United States or of any State.

SEC. 603. SEVERABILITY.

  If any provision of this Act or the amendments made by this Act, or 
the application thereof, to any person or circumstances is held invalid 
by a court of the United States, the remainder of this Act or such 
amendments, and the application thereof, to other persons or 
circumstances shall not be affected thereby.

                                Purpose

    Americans expect their phone calls, electronic mail, 
personal documents, and electronic commercial activities to be 
secure and private. The rapid expansion of communication and 
computer technology has created vulnerabilities that leave many 
personal communications and commercial transactions potentially 
exposed to fraud and misuse. The development and use of strong 
encryption is essential to a thriving electronic communications 
capability, and necessary to help safeguard privacy and protect 
ourselves from crime. H.R. 695 promotes the development and 
distribution of strong encryption technologies that are 
intended to provide a heightened level of security and freedom 
to engage in electronic commerce.
    Chief among the government's obligations to its people is 
the duty to protect them from threats of harm to their persons 
or property. Similarly, in order to establish and maintain a 
government that serves the common good and provides for the 
common defense, which the Framers acknowledged was essential to 
a free society, national security interests must be carefully 
weighed against the people's inalienable rights of life, 
liberty, and property. With this interest in maintaining the 
balance between individual rights and our nation's security, 
the Permanent Select Committee on Intelligence sought and 
obtained referral of the bill, H.R. 695. The Committee's 
consideration of H.R. 695 brought to light that the bill as 
introduced and reported by the Committee on the Judiciary, 
though certainly well-intentioned, left our intelligence and 
intelligence-related capabilities at considerable risk. 
Likewise, enacted without amendment, it might jeopardize the 
nation's (including our state and local law enforcement 
agencies) ability to investigate, apprehend, and prosecute 
criminals of the most serious stripe.
    The Committee received evidence that strong encryption has 
already been used to facilitate drug trafficking, protect child 
pornographers, shield terrorist plots and communications, and 
hide evidence of credit card fraud, among other notable crimes. 
Furthermore, the Committee is of the view that such a law 
enforcement and national security risk should not be left to 
the forces of the marketplace. Doing so abdicates the 
responsibility of the government to protect its people from 
enemies, both foreign and domestic.
    Thus, the amendment in the nature of a substitute to H.R. 
695, reported favorably by the Committee, seeks simply to 
ensure that the critical national security and law enforcement 
concerns at issue in this debate over the nature and direction 
of encryption policy for the United States will be seriously 
addressed.

                                Summary

                           section-by-section

Section 1.--Short title

    This section provides the title of the bill as the 
``Security and Freedom through Encryption (``SAFE'') Act of 
1997.''

Section 2.--Statement of policy

    This section sets forth the policy of the United States 
with respect to encryption technology.

                  TITLE I--DOMESTIC USES OF ENCRYPTION

Section 101.--Definitions

    This section establishes the definitions of specific terms 
used throughout the bill.

Section 102.--Lawful use of encryption

    This section makes clear that, except as otherwise 
provided, it is lawful to use encryption products, regardless 
of algorithm length selected, encryption key length chosen, or 
implementation technique or medium used.

Section 103.--Voluntary private sector participation in key management 
        infrastructure

    Subsection (a) clarifies that the use of certificate 
authorities or key recovery agents is completely voluntary.
    Subsection (b) provides the Secretary of Commerce with 
regulatory authority to establish standards for creating 
voluntary key management infrastructures. The Committee 
believes that the development of key management infrastructures 
is important to the interoperability that is necessary for the 
further development of safe and secure electronic commerce. Any 
regulations promulgated should allow the voluntary 
participation of private persons and non-federal entities. 
These regulations should also encourage the development of 
certificate authorities and key recovery agents.
    Subsection (c) will permit key recovery agents or 
certificate authorities to register themselves with the 
Commerce Department. In addition, such entities will be 
allowed, if they choose, to identify themselves as meeting the 
standards established by the Secretary.

Section 104.--Unlawful use of encryption

    This section amends Title 18, United States Code, by new 
sections 2801 through 2811 within a new chapter 122, which 
bears the heading, ``Chapter 122-Encrypted Data, Including 
Communications.''
    New section 2801 of title 18, United States Code, would 
make it a criminal offense to use encryption in furtherance of 
the commission of a federal crime. The penalties attached to 
such crimes would be in addition to any sentence imposed for 
the underlying offense. For first time offenders, the potential 
penalties are not more than 5 years in prison, a fine under 
Title 18, United States Code,\1\ or both. For repeat offenders 
of this provision, the jail time is potentially no more than an 
additional 10 years. This section would apply equally to any 
investigative or law enforcement officer who is found to have 
violated these provisions.
---------------------------------------------------------------------------
    \1\ Title 18, United States Code, Section 3571 establishes the fine 
schedule for all Title 18 criminal violations. For an individual 
convicted of a felony, the fine would, generally, be $250,000. For an 
organization convicted of a felony, the fine would, generally, be 
$500,000. Some specific criminal provisions may specify higher fine 
amounts. Any criminal provision authorizing a lower fine amount is 
nullified by enactment of subsection (e) of section 3571 of Title 18, 
United States Code.
---------------------------------------------------------------------------
    New section 2801 creates several new crimes. First, it 
makes it illegal to intentionally obtain or use decryption 
information without lawful authority in order to decrypt data, 
including information. Next, it makes it a criminal offense to 
exceed lawful authority in decrypting data, including 
communications. This new section would make the breaking of the 
encryption code of another without lawful authority and with 
the purpose of violating that person's privacy or security, or 
for the purpose of depriving that person of his or her property 
a criminal violation of law. Likewise, it would be illegal to 
impersonate another for the purpose of obtaining that person's 
decryption information without lawful authority. Importantly, 
it also makes it unlawful to facilitate or assist in the 
encryption of data, including communications, that are to be 
used in furtherance of a crime. Finally, it makes it illegal to 
otherwise disclose decryption information in violation of the 
provisions of new chapter 122 of Title 18, United States Code. 
Each of these criminal violations is subject to a potential 
penalty of not more than 10 years in prison, a fine under Title 
18, United States Code, or both. This section would apply 
equally to any investigative or law enforcement officer who is 
found to have violated these provisions.
    New section 2803 will make it unlawful after January 31, 
2000, to sell in interstate or foreign commerce any encryption 
product that does not provide duly authorized persons an 
immediate access to plaintext capability, or immediate 
decryption capability. Under this new chapter of Title 18, 
United States Code, such duly authorized persons only include 
those presenting an order from a court of competent 
jurisdiction requiring that such access or provision of 
decryption information be made. This section would apply 
equally to any investigative or law enforcement officer who is 
found to have violated these provisions.
    New section 2804 establishes manufacturing and service 
requirements on encryption products intended for distribution 
and use after January 31, 2000. Subsection (a) requires all 
public network service providers to offer encryption products 
or services that ensure an immediate decryption capability or 
an immediate access to plaintext capability.
    Subsection (b) requires any person who manufactures for 
distribution, distributes, or imports encryption products 
intended for sale or use in the United States to include in 
such products features or functions that provide an immediate 
access to plaintext capability. These features or functions 
must permit the immediate decryption of data, including 
communications, without the knowledge or cooperation of the 
person being investigated, but only upon the presentation of a 
facially valid order issued by a court of competent 
jurisdiction. Alternatively, encryption products may be 
manufactured for distribution, distributed, or imported even if 
they do not meet the requirements set forth above, so long as 
they can be used only on systems or networks that include 
features or functions that otherwise provide the immediate 
access to plaintext capability previously discussed. Finally, 
persons are free to manufacture encryption products that do not 
comport with any of the requirements set forth here, so long as 
they otherwise meet the technical requirements and functional 
criteria established by the Attorney General, pursuant to 
subsection (c).
    Subsection (c) provides the Attorney General with 
regulatory authority to promulgate technical requirements and 
functional criteria for encryption products that will allow for 
an immediate access to plaintext capability, or otherwise 
enable the immediate decryption of the otherwise encrypted 
data, including communications. This subsection provides 
industry with an opportunity to seek an advisory opinion from 
the Attorney General as to a particular product intended for 
manufacturer or distribution. Such advisory opinions serve an 
important function in that they will provide the industry with 
clear guidance on products intended for sale. This procedure 
will hopefully alleviate the need for lawsuits to enjoin the 
distribution or manufacture of encryption products. This 
subsection specifically provides that the Attorney General 
cannot require a particular methodology to be used in meeting 
her technical requirements or functional criteria.
    Subsection (d) authorizes the use, even after January 31, 
2000, of encryption products purchased or in use prior to that 
date. This alleviates any ex post facto problem. The Committee 
also recognizes that industry will need to develop new product 
lines to comply with the provisions of this amendment. Thus, in 
order to allow those manufacturers an opportunity to recoup 
some of their research and development investment this 
provision allows them to continue to sell their current product 
line for the next two-plus years.
    New section 2805 sets forth procedures whereby the onus is 
on the government to prohibit the manufacture or distribution 
of an encryption product, after January 31, 2000, that she or 
the Secretary of Commerce believes does not meet the technical 
requirements or functional criteria established by the Attorney 
General. The Committee believes that it is appropriate for the 
Attorney General to bear the burden, in a court of law, before 
an independent arbiter of the facts, of keeping a particular 
encryption product out of the market place. The provision 
allows for the closure of such proceedings to protect the 
proprietary interest in any information that might be disclosed 
through a public proceeding. Furthermore, the provision will 
provide those who obtained an advisory opinion with an absolute 
defense to the lawsuit as long as the product at issue comports 
in every aspect with the requirements announced in the Attorney 
General's advisory opinion.
    New section 2806 sets forth the standards and procedures 
for the issuance of a court order granting an investigative or 
law enforcement officer access to the plaintext of otherwise 
encrypted data, including communications, or compelling the 
provision of decryption information to an investigative or law 
enforcement officer. The application for such order must be 
made by an attorney for the government. That application must 
establish facts supporting the finding that the plaintext or 
decryption information is relevant to an on-going and 
legitimate law enforcement or foreign counterintelligence 
investigation. The application and any order issued thereon may 
be made ex parte and placed under seal. Disclosure of the 
application or order is not authorized by anyone, except as 
otherwise permitted by this section, or another order of the 
court. This section also comports with any obligation the 
United States may have to any foreign government under any 
effective Mutual Legal Assistance Treaties
    This section also requires that the court granting access 
to plaintext or the disclosure of decryption information, shall 
also ensure that a verifiable audit trail of any access to 
plaintext or decryption information be maintained. This record 
shall not be maintained in a place or in a manner under the 
custody or control of the investigative or law enforcement 
officer gaining the access under this section. The record will 
then be tendered to the court upon an order of the court.
    Subsection (d) clarifies that nothing in this new chapter 
shall be read to expand or modify any other constitutional or 
statutory requirement under which a government entity is 
entitled to intercept or obtain oral, wire, or electronic 
communications, or information.
    Subsection (e) mandates a strict construction of this new 
chapter so that it is read only to apply to a government 
entity's ability to decrypt or otherwise gain access to the 
plaintext of data, including communications, for which it 
previously obtained lawful authority to intercept or obtain.
    New section 2807 provides the users of encryption products 
with a statutory right to be notified when their decryption 
information is provided to law enforcement, or when law 
enforcement is granted access to the plaintext of their data, 
including communications. This section does provide for a 
delayed notification to the user so as not to jeopardize the 
integrity of the on-going criminal investigation or foreign 
counter-intelligence investigation. Basically, the user must be 
notified within 90 days after the filing of an application for 
the decryption information, or for access to the plaintext, 
unless the judge finds good cause warranting the delay. 
Specifically, however, none of the decrypted contents of the 
encrypted information that has been obtained, nor any evidence 
derived therefrom may be used in any proceeding unless the user 
has been furnished with a copy of the order, application, and 
the data, including communications. The user may move to 
suppress the use of any of the plaintext or evidence derived 
therefrom in any proceeding on the grounds that the plaintext 
or the decryption information was unlawfully obtained. This 
section also provides aggrieved persons with a civil cause of 
action for any violations of this new chapter.
    New section 2808 limits the lawful uses of any plaintext or 
decryption information may be put. It may be used for the 
purposes of conducting a lawful criminal or foreign 
counterintelligence investigation, and for the purposes of 
preparing for and prosecuting any criminal violation of law. It 
may not be disclosed to any party to a civil suit that does not 
arise from the criminal investigation or prosecution, unless a 
court finds that there is no alternative means of obtaining the 
plaintext, or decryption information and that the interests of 
justice would not be served by nondisclosure. This section 
further clarifies that decryption information may not be used 
to determine the plaintext unless the officer possesses other 
lawful authority to the plaintext.
    This section also outlines the procedures for returning or 
destroying any decryption information upon the conclusion of 
the investigation, trial, or proceeding.
    This section also places limitations upon any person acting 
as a key recovery agent. It specifies to whom and under what 
circumstances decryption information may be provided to another 
person by a key recovery agent.
    New section 2809 requires those who are providing 
decryption information to an investigative or law enforcement 
officer to so identify that information in order to avoid any 
inadvertent disclosure. The officer is responsible for 
maintaining the decryption information in such a manner so as 
to reasonably assure against inadvertent disclosure.
    New section 2810 makes it a crime to knowingly export an 
encryption product after January 31, 2000 that does not include 
an immediate access to plaintext capability, or that does not 
provide an immediate decryption capability. This criminal 
provision carries a potential prison term of not more than 5 
years.
    New section 2811 incorporates the definitions set forth at 
section 101 of this Act as the definitions to be utilized for 
new chapter 122 of Title 18, United States Code.

                    TITLE II--GOVERNMENT PROCUREMENT

Section 201.--Federal purchases of encryption products

    This section requires the United States Government, after 
January 1, 1999, to purchase only those encryption products 
enabling the immediate decryption by an authorized party, 
without the knowledge or cooperation of the person using the 
encryption product. This requirement only applies to those 
products or services obtained for providing security service 
for a federal computer system.

Section 202.--Encryption products purchased with Federal funds

    This section requires that any encryption product or 
service purchased directly with federal funds after January 1, 
1999, shall enable the immediate decryption by an authorized 
party, without the knowledge or cooperation of the person using 
the encryption product. The Committee does not intend that this 
provision applies to any product purchased by institutions 
receiving federal grants or other funding, if such institution 
does not require interoperability with the United States 
government, such as universities or public libraries.

Section 203.--Networks established with Federal funds

    This section requires that any communications network that 
is established directly with federal funds after January 1, 
1999, must use encryption products that include techniques 
enabling the immediate decryption of data, including 
communications, without the knowledge or cooperation of the 
person using the encryption product or service. It is not 
intended that private communications networks that might 
benefit from federal grants satisfy this requirement. Rather, 
the Committee intends that this provision apply solely to those 
communication networks established for the purpose of 
communication with the United States government, either on a 
contractual basis, or as an element of the government.

Section 204.--Product labels

    This section allows for the labeling of encryption products 
so that purchasers and users are aware that the product is 
authorized for sale to, or for use in transactions with, the 
United States government.

Section 205.--No private mandate

    This section articulates the policy that the United States 
government shall not require the use of particular encryption 
standards for the private sector.

Section 206.--Implementation

    This section specifically states that encryption products 
used solely for access control, authentication, integrity, 
nonrepudiation, or digital signatures are not covered by the 
provisions of this title. Moreover, this section grants the 
Secretary of Commerce regulatory authority to effectuate the 
provisions of this title.

                    TITLE III--EXPORTS OF ENCRYPTION

Section 301.--Exports of encryption

    Subsection (a) establishes that the Secretary of Commerce, 
acting in close coordination with the Secretary of Defense, and 
other executive branch agencies with responsibility for 
protecting the national security, has the authority to exercise 
control over the export of encryption products.
    Subsection (b) clarifies that export control decisions made 
by the Secretary are not subject to judicial review.

Section 302.--License exception for certain encryption products

    Subsection (a) sets criteria for export license exceptions 
of encryption products after January 31, 2000. Specifically, 
products eligible for exemptions must: be submitted to the 
Secretary of Commerce for a 1-time product review; not include 
features that would require licensing under other applicable 
regulations; not be destined for countries that are determined 
ineligible on national security grounds. In addition, the 
product must include a means of obtaining immediate access to 
plaintext capability if there is lawful authority for such 
access.
    Subsection (b) clarifies that the immediate access to 
plaintext capability need not be enabled by the manufacturer 
before or at the time of export.
    Subsection (c) requires the Secretary, in close 
coordination with the Secretary of Defense and other relevant 
executive branch agency heads, to promulgate regulations for 
the 1-time review process; and sets a time limit of 30 days for 
that review process. This subsection establishes that the 30-
day time clock starts when the Secretary has received a 
completed application for license exception and the encryption 
product intended for export.
    Subsection (d) clarifies that the Secretary of Commerce and 
the Secretary of Defense still maintain any authorities they 
currently possess under any other provisions of law, including 
the Export Administration Act of 1979, as continued in effect 
under the International Emergency Economic Powers Act.
    Subsection (e) establishes a presumption in favor of 
exporting products submitted to the Secretary under this 
section. The burden will be on the Secretary of Commerce to 
deny export.
    Subsection (f) provides the President with the authority to 
waive any portion of this title for national security purposes. 
Requires the President to report to the relevant committees of 
Congress within 15 days after this authority is used.
    Subsection (g) lists the committees in the House and Senate 
that would receive a report under the previous subsection.

Section 303.--License exception for telecommunications products

    This section provides a specific exemption for certain 
voice encryption products. Products will be eligible for this 
exemption if, after a 1-time review, the Secretary of Commerce 
determines that the inclusion of information recovery 
capability would disadvantage U.S. exporters; and the export of 
the voice encryption product would not pose a risk to foreign 
policy, nonproliferation, or national security.

Section 304.--Review for certain institutions

    This section requires the Secretary of Commerce to 
establish an expedited export license exception review process 
for encryption products to be used by qualified banks, 
financial institutions, U.S. businesses, and other users 
specifically authorized by the Secretary.

Section 305.--Encryption Industry and Information Security Board

    This section establishes an Encryption Industry and 
Information Security Board (``EIISB'') to advise the President 
on future encryption policy and technological advancements that 
would serve to alter the United States policy on encryption 
products. This section also defines the purposes of the board. 
It further specifies that the Board shall be composed of 13 
members, and how those members shall be appointed. In addition 
to the Secretaries of Commerce and Defense, the Attorney 
General or the FBI Director, the Director of Central 
Intelligence, and the National Security Advisor to the 
President, or their designees will sit on the EIIS Board. The 
board shall include two individuals appointed by the President 
who should have no ties to the industry, but who can represent 
the interests of consumer groups and civil liberties advocacy 
groups. There will also be appointed six representatives from 
the private sector who together have expertise in the many 
facets of information security, including the technical and 
legal issues surrounding the use of information security 
technology. The Board will report to the President and 
Congress, and their recommendations are not binding.

                    TITLE IV--LIABILITY LIMITATIONS

Section 401.--Compliance with court order

    This section states that a person shall not be held civilly 
or criminally liable under this Act, or under any other 
provision of law, for acting in compliance with a court order 
compelling the disclosure of plaintext or decryption 
information.

Section 402.--Compliance defense

    This section provides a complete defense for any non-
contract action for damages based upon activities covered by 
the Act as long as the person complies with the provisions of 
sections 2806, 2807, 2808, or 2809 of title 18, United States 
Code, as added by section 104(a) of this Act, or any 
regulations authorized thereunder.

Section 403.--Reasonable care defense

    This provision encourages the participation in a key 
management infrastructure that meets the standards suggested by 
the Secretary of Commerce under section 103 of this Act. This 
section authorizes the use of one's participation in such key 
management infrastructure as evidence of reasonable care in a 
case where the reasonableness of one's actions is at issue.

Section 404.--Good faith defense

    This section provides anyone who relies on the legal 
authority provided under this Act as the basis for providing an 
investigative or law enforcement officer with access to the 
plaintext of otherwise encrypted data, including 
communications, or for providing such officer with decryption 
information, with a complete defense to any criminal or civil 
action arising therefrom.

Section 405.--Sovereign immunity

    This section clarifies that nothing in this Act modifies or 
amends the sovereign immunity of the United States.

Section 406.--Civil action, generally

    This section allows a civil action to be brought against 
any person who violates or acts in a way that is inconsistent 
with the provisions or intent of this Act.

                   TITLE V--INTERNATIONAL AGREEMENTS

Section 501.--Sense of Congress

    This section expresses the Sense of Congress that the 
President should negotiate with foreign governments to 
establish mutual recognition of key management infrastructures.

Section 502.--Failure to negotiate

    This section permits the President to take a country's 
refusal to negotiate into consideration when making decisions 
about U.S. participation in any cooperation or assistance 
program with that country.

Section 503.--Report to Congress

    This section requires an annual report to Congress on the 
status of the negotiations, with the first report due December 
15, 1998.

                   TITLE VI--MISCELLANEOUS PROVISIONS

Section 601.--Effect on law enforcement activities

    This section requires the Attorney General to compile, and 
maintain in classified form, information on those instances 
where encryption has posed problems in the enforcement of 
federal laws. This information will be available to any Member 
of Congress upon request.

Section 602.--Interpretation

    This section clarifies the relationship of the bill to the 
interpretation of certain laws: the bill does not preempt the 
application of other important export control acts, including: 
the Arms Export Control Act, the Export Administration Act, or 
the International Emergency Economic Powers Act; it does not 
affect foreign intelligence activities of the United States; 
nor does it diminish US or State intellectual property 
protections.

Section 603.--Severability

    This section permits any court reviewing this Act to sever 
any provision from the remainder of the Act, so as not to find 
the Act invalid in its entirety.

                  Background and Need for Legislation

    H.R. 695, as amended by the Committee on the Judiciary, has 
broad implications on the intelligence and intelligence-related 
activities of the United States. The Intelligence Committee has 
jurisdiction over legislation relating to the intelligence and 
intelligence-related capabilities of the United States, 
including the FBI's domestic counter-intelligence and counter-
terrorism functions. Thus, upon the Chairman's request, the 
Speaker referred the bill to the Committee for its 
consideration.
    Primary among the Committee's concerns was how the 
development of strong and unbreakable encryption technology 
would affect the national security of the United States. The 
Defense Department's need for information security technology 
is essential to its force protection and war fighting 
functions. Likewise, information security is critical to the 
President and his advisors. It is necessary to the Department 
of State in its development of sound foreign policy. Encryption 
technology that does not provide for access points to 
plaintext, or the re-capture of communications and data, puts 
these needs at considerable risk.
    The development of encryption technologies that does not 
take into consideration society's desire to prevent, 
investigate, and prosecute crimes, is of no sizable benefit to 
society. Such encryption technology would allow criminals to 
act with impunity, without concern that their actions might be 
subject to exposure by lawful authorities. The FBI, the agency 
primarily responsible for counter-terrorism and domestic 
counter-espionage efforts, and the investigation of child 
pornography and kidnapping, could find itself especially 
handicapped in these areas. Likewise, the Drug Enforcement 
Administration, which is responsible to the nation for counter-
narcotics operations, could be negatively affected by H.R. 695. 
Similarly, the Committee was greatly concerned that State and 
local law enforcement agencies' ability to provide their 
citizenry with a free and peaceful place to live and work would 
be seriously jeopardized.
    As considered by the Permanent Select Committee on 
Intelligence, H.R. 695 left the public's safety and our 
nation's security to the forces of the marketplace. The 
``SAFE'' Act provided no mechanism or technological capability 
for law enforcement or national security to access the 
plaintext of data, including communications. It would 
ultimately have rendered meaningless any other law, including 
the Fourth Amendment,entitling law enforcement to such 
evidence. It would have negated our intelligence collectors' abilities 
to perform their vital national security functions. The Committee found 
that, to the detriment of the national security and law enforcement 
equities of the United States, H.R. 695 encouraged the development of 
unbreakable encryption technologies, seeming based upon an absolutist's 
view of the First Amendment and one's ``right of privacy.''
    H.R. 695 did nothing to encourage the development of 
systems or software that would meet the crucial needs of 
national security or law enforcement. The bill placed the 
determination of whether a particular export of encryption 
technology affected the national security interests of the 
United States solely in the hands of the Secretary of Commerce, 
with no role whatsoever for the national security apparatus of 
the United States government. This, despite the proponents 
acknowledgment of the national security benefit that encryption 
technology can provide to the government.
    The proponents of H.R. 695 argue that the legislation 
enhances the needs of law enforcement. They contend that strong 
encryption software, widely available to the public, will 
secure our computer networks, defeat fraud, and instill trust 
in the already booming Internet. This trust, they assert, is 
necessary to release the opportunities available through 
electronic commerce.
    None of this is disputed.
    Congress has on many occasions accepted the premise that 
the use of electronic surveillance is a tool of utmost 
importance in many criminal investigations, especially those 
involving serious and violent crime, terrorism, espionage, 
organized crime, drug-trafficking, corruption, and fraud. There 
have been numerous cases where law enforcement, through the use 
of electronic surveillance, has not only solved and 
successfully prosecuted serious crimes and dangerous criminals, 
but has also been able to prevent serious and life-threatening 
criminal acts. For example, terrorists in New York were 
plotting to bomb the United Nations building, the Lincoln and 
Holland tunnels, and 26 Federal Plaza as well as conduct 
assassinations of political figures. Court-authorized 
electronic surveillance enabled the FBI to disrupt the plot as 
explosives were being mixed. Ultimately, the evidence obtained 
was used to convict the conspirators. In another example, 
electronic surveillance was used to prevent and then convict 
two men who intended to kidnap, molest and then kill a male 
child.
    The supporters of the bill insist that the problem for law 
enforcement is a narrow problem, only affecting approximately 
1,100 wiretaps per year, while encryption provides great 
security benefits to the electronic marketplace.\2\ The 
Committee is concerned that the problems posed by H.R. 695 are 
not as narrow as the bill's supporters claim. The problem that 
some see as ``narrow'' is in fact the entirety of the problem. 
Were the 1,100 or so wiretaps conducted by federal, state, and 
local law enforcement agencies across the country in the last 
year protected with unbreakable encryption, the scores of drug 
traffickers, child pornographers, kidnappers, Mafiosi, 
terrorists, and spies that were identified, investigated, and 
prosecuted, through the use of those wiretaps, would still be 
at large.
---------------------------------------------------------------------------
    \2\ Mr. Jerry Berman, Executive Director of the Center for 
Technology and Democracy before the House Judiciary Committee, March 
20, 1997.
---------------------------------------------------------------------------
    The Committee notes, with considerable concern, that the 
threat such encryption creates is not limited to the FBI alone.
    From a national security perspective, this is not a problem 
that will begin sometime in the future; we are already 
encountering the effects of encryption today. For example:
          Convicted spy Aldrich Ames was told by the Russian 
        intelligence service to encrypt computer file 
        information that was to be passed to them;
          An international terrorist was plotting to blow up 11 
        U.S.-owned commercial airliners in the far east. His 
        laptop computer which was seized during his arrest in 
        Manila contained encrypted files concerning this 
        terrorist plot; and
          A major international drug trafficking subject 
        recently used a telephone encryption device to 
        frustrate court-approved electronic surveillance.
    H.R. 695 did little to facilitate or promote technological 
development of access points for interception, or provide for 
an immediate decryption capability, through a court order 
process. The Committee is of the view that these requirements 
can be fashioned in a way that does not undermine a citizen's 
right against unreasonable searches and seizures or 
unnecessarily abridge his or her freedom of speech. There is 
considerable precedent in statute for a regime that balances 
privacy, law enforcement concerns, and national security.\3\
---------------------------------------------------------------------------
    \3\ Title III of the Omnibus Crime Control Act of 1968 codified the 
government's authority to require service providers to supply technical 
assistance to enable law enforcement (Federal, state, and local) to 
intercept oral, electronic, and wire communications, upon the 
presentment of a court order. That Act balanced the competing rights of 
the individual and the government under the 4th Amendment by setting 
out in the statute judicial oversight, minimization, and delayed 
notification procedures that have met the test of time. That Act 
established the constitutionality of a government mandate upon 
technology for the societal benefit of public safety and national 
security.
    The Communications Assistance to Law Enforcement Act (``CALEA''), 
building on the wiretap statutes, and considering the advancement of 
digital telecommunications capabilities, specifically required 
telecommunications common carriers to provide technical assistance and 
to develop software that will enable the government to maintain its 
capability to intercept communications, where otherwise allowable under 
the law. Furthermore, CALEA established the precedent that 
telecommunications companies that provide digital telephony to their 
customers must provide law enforcement with an access point to such 
communications so that the conversations occurring over such digital 
telecommunication devices are comprehensible.
    The Committee also considered those statutes governing pen 
registers and trap and trace devices (18 U.S.C. sec. 3121-27), the use 
of classified information in the prosecution of criminal violations of 
federal law (18 U.S.C. App. 3, sec. 1, et seq.), and considered the 
practice of law enforcement in gaining access to bank records and other 
records held by third parties. The Committee also reviewed the fine 
balancing of interests that is manifest in the Foreign Intelligence 
Surveillance Act, 50 U.S.C.
---------------------------------------------------------------------------
    The benefit that strong encryption, without access to 
plaintext capabilities, provides to the individual encryption 
user is equally provided to the person with criminal intent. 
The child pornographer will be able to operate with impunity. 
If there is no mechanism, no technological way of decrypting 
his files without his permission, there will be no way for the 
law to break his code, to access his computer files, to develop 
evidence of his criminal acts and bring him to justice. This is 
the world without a statutory requirement for access to 
plaintext capability for stored data, or communications.
    Likewise, without access to plaintext capability for our 
intelligence collectors, international terrorists communicating 
across the Internet, or through digital communications, sending 
encrypted messages to their comrades discussing their plans to 
attack United States interests, can rest assured that their 
conspiracy will not be discovered, penetrated, frustrated, nor 
prosecuted by law enforcement authorities.
    To be sure, as envisioned by the authors of the Bill of 
Rights, the Fourth Amendment stands as a bulwark against 
unreasonable government intrusion into the lives of its 
citizens. That freedom is jealously guarded by the people, 
through the power and authority of the Judicial Branch of our 
governmental structure. Certainly, the use of encryption 
technology to protect electronic data and communication 
accesses the same right to privacy as the use of a safe to 
protect paper documents.
    Nothing in our constitutional framework, however, provides 
for absolutes. There is no absolute freedom of expression. 
There is no absolute freedom from search and seizure. Nothing 
about computer technology alters this constitutional truism. 
The Bill of Rights delicately balances the competing interests 
of the people and the nation. The Constitution recognizes that 
the freedoms embodied in the Bill of Rights are joined with 
responsibilities. The people are responsible for acting within 
the bounds of the law. The government, on the other hand, is 
responsible for acting reasonably. When a citizen violates the 
law, the Constitution permits reasonable government action to 
discover and expose that criminal activity. This is the essence 
of the Fourth Amendment. The Committee notes with concern that 
encryption technology, which will have enormous benefits, can 
also threaten the underpinnings of the Constitutional balance 
struck in the text of the Fourth Amendment if the technology is 
allowed to develop unchecked and without regard to one's civic 
responsibilities.
    The privacy interests of encryption users should not be 
minimized, nor given absolute value. A balance must be 
established. It is true that access to decryption information 
could give the government an opportunity for mischief. 
Statutory safeguards against the impermissible use of 
decryption information can be employed to adequately deter such 
violations of privacy. Additionally, users of encryption should 
be notified that their decryption information has been 
accessed. But, the timing of this notification, like that 
permitted by the wiretap statute, is very important to the 
integrity of any criminal or counter-intelligence 
investigation.
    With respect to export controls over encryption products, 
including software, hardware, and technology, it is important 
to the country's security interests to permit the export only 
of those encryption products that fulfill the goals of 
promoting and securing information systems of American 
citizens, while at the same time enabling the intelligence 
community to continue to support our policy makers, deployed 
forces, and U.S. interests at home and overseas.
    Currently, the Administration regulates the export of 
encryption products and requires a license prior to export. On 
October 1, 1996, the Vice President announced for the 
Administration that it would begin allowing 56-bit DES 
encryption products, or its equivalent, under a general license 
upon the presentment of the product for a one-time review so 
long as the exporting company committed to building and 
marketing future products that were supportive of key recovery. 
On November 1, 1996, President Clinton issued Executive Order 
13026, 61 Fed. Reg. 58767 (November 19, 1996) implementing the 
policy outlined by the Vice President the month before. The 
Administration, through Ambassador Aaron, the U.S. Special 
Envoy for Encryption Policy, is also currently engaged in a 
multi-lateral effort to reach agreement in the international 
community on export standards supportive of key recovery 
products.
    Proponents of H.R. 695 argue that export barriers need to 
be removed to enhance and improve the already superior position 
of American encryption manufacturers in foreign markets. They 
contend that our software industry will in a matter of years, 
under the current regulatory regime, suffer substantial losses 
in terms of jobs and profits. They argue that there are 
encryption products already widely available in foreign 
countries and on the Internet that are competing with U.S. 
manufactured encryption products and in the near term could 
strip U.S. industry of its preeminence in this field.
    Foreign availability is an issue that is repeatedly raised 
in the encryption debate. Industry claims that encryption 
products are widely available overseas, that other countries do 
not control their export, and that American firms are suffering 
significant losses. A study of this issue found that claims of 
widespread foreign availability of encryption products were not 
entirely accurate. According to industry experts, widespread 
use of foreign encryption has not become manifest, although the 
pace of change and the market for information technology is 
rapid and a growing number of strong encryption products exist.
    Only a few countries, other than the United States, produce 
encryption products at this time. Some, like Switzerland, 
produce only specialized products for a small segment of the 
market. Others, like Japan, produce primarily hardware 
products. These countries all have export controls on 
encryption. As noted, Ambassador Aaron is engaged in regular 
discussions with them. The Committee believes that the issue of 
foreign availability is one which the Administration must 
closely monitor as we move toward a permanent policy on 
encryption.
    The Committee shares the concern that American encryption 
products could be replaced by foreign competitors. It notes, 
however, that the American grip on the market is remarkable, 
not just for its share of the market, but for its longevity. 
American technology manufacturers control no less than 75% of 
the global market, despite what many consider to be a 
``restrictive'' policy on encryption products. It is 
acknowledged on both sides of this issue that American 
encryption technology is the best in the world. There is no 
desire to undermine that position, nor diminish the U.S. 
preeminence in this regard.

                               conclusion

    The encryption policy of the United States requires a 
comprehensive approach that takes into account the equities and 
prerogatives of the intelligence community; federal, state, and 
local law enforcement; industry; and the citizens of the United 
States. The Committee's amendment in the nature of a substitute 
to the bill as reported by the Committee on the Judiciary, 
which is further explained in the section-by-section analysis, 
makes an effort at balancing the important national security, 
public safety, and privacy interests that are at stake in this 
debate.

                         Committee Proceedings

    The Committee was briefed on the subject of encryption on 
May 6, 1997 by the Hon. William Reinsch, Under Secretary, 
Bureau of Export Administration, Department of Commerce; Hon. 
William Crowell, Deputy Director, National Security Agency; and 
Hon. Robert Litt, Deputy Assistant Attorney General, Criminal 
Division, United States Department of Justice.
    The Committee held a hearing on September 9, 1997 in which 
it heard testimony from: the Hon. Bob Goodlatte, United States 
Representative, 6th District of Virginia; Hon. Zoe Lofgren, 
United States Representative, 16th District of California; Hon. 
Louis J. Freeh, Director, Federal Bureau of Investigation; Hon. 
William Reinsch, Under Secretary, Bureau of Export 
Administration, Department of Commerce; and Hon. William 
Crowell, Deputy Director, National Security Agency.
    The Committee extensively reviewed additional testimony and 
written materials relating to encryption policy in general and 
H.R. 695 in particular, including: ``Terrorism in the Next 
Millennium: Enter the Cyberterrorist,'' by George R. Barth, 
National Counterintelligence Center; ``Deciphering the 
Cryptography Debate,'' by Kenneth Flamm, The Brookings 
Institution; Hon. Michelle Van Cleave, Assistant Director for 
National Security, White House Office of Science and Technology 
Policy, remarks before AFCEA Convention, June 25, 1992; Hon. 
Janet Reno, United States Attorney General, letter to Members 
of Congress, July 18, 1997; Hon. Louis J. Freeh, Director, 
Federal Bureau of Investigation, testimony before the United 
States Senate Committee on Commerce, Science and 
Transportation, March 19, 1997; Hon. Louis J. Freeh, testimony 
before the United States Senate Committee on the Judiciary, 
June 25, 1997; Hon. John Kyl, United States Senator, Arizona, 
remarks before the Heritage Foundation, July 28, 1997;
    Testimony before the United States Senate Judiciary 
Subcommittee on Technology, Terrorism and Government 
Information, September 3, 1997: Hon. Louis J. Freeh, Director, 
Federal Bureau of Investigation; Dorothy E. Denning, Georgetown 
University; Jeffery A. Herig, Special Agent, Florida Department 
of Law Enforcement; Robert R. Burke, Director of Corporate 
Services and Security, Monsanto Company, and Chairman of the 
Subcommittee for Protection of Information and Technology, 
Overseas Security Advisory Council, United States Department of 
State; Ken Lieberman, Senior Vice President for Corporate Risk 
Management, Visa USA; R. Patrick Watson, Director, Worldwide 
Corporate Security, Eastman Kodak Company;
    Testimony before the United States House of Representatives 
Commerce Subcommittee on Telecommunications, Trade, and 
Consumer Protection, September 4, 1997: Hon. Bob Goodlatte, 
United States Representative, 6th District of Virginia; Hon. 
William Reinsch, Under Secretary, Bureau of Export 
Administration, Department of Commerce; Hon. Robert Litt, 
Deputy Assistant Attorney General, Criminal Division, 
Department of Justice; Stephen T. Walker, President and CEO, 
Trusted Information Systems, Inc.; Thomas Parenty, Director of 
Data/Communications Security, Sybase, Inc.; George A. Keyworth, 
II, Ph.D., Chairman, Progress & Freedom Foundation; Jerry 
Berman, Executive Director, Center for Democracy and 
Technology;
    Hearing records of: Hearing on H.R. 3011 (104th Congress), 
before the United States House of Representatives Committee on 
the Judiciary, September 25, 1996; Hearing on H.R. 695, before 
the United States House of Representatives Judiciary 
Subcommittee on Courts and Intellectual Property, March 20, 
1997; and the redacted released transcript of the United States 
House of Representatives International Relations Committee 
Members' briefing, June 26, 1997.
    In addition, the Committee staff was briefed on the subject 
of encryption from representatives of IBM, ORACLE, Center for 
Technology and Democracy, Netscape, and Motorola.

                        Committee Consideration

    The Committee met on September 11, 1997, and in open 
session approved, by voice vote, the Goss/Dicks amendment in 
the nature of a substitute to H.R. 695, as amended and reported 
by the Committee on the Judiciary. The Committee, in open 
session, ordered H.R. 695, as amended, reported favorably by 
voice vote, a quorum being present.

                         Vote of the Committee

    During its consideration of H.R. 695, the Committee took no 
rollcall votes.

Findings and Recommendations of the Committee on Government Reform and 
                               Oversight

    With respect to clause 2(l)(3)(D) of rule XI of the Rules 
of the House of Representatives, the Committee has not received 
a report form the Committee on Government Reform and Oversight 
pertaining to the subject of the bill.

                           Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House rule XI does not apply because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

                 Congressional Budget Office Estimates

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 16, 1997.
Hon. Porter J. Goss,
Chairman, Committee on Intelligence,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 695, the Security 
and Freedom Through Encryption (SAFE) Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Rachel 
Forward (for federal costs); Alyssa Trzeszkowski (for 
revenues); Pepper Santalucia (for the state and local impact); 
and Jean Wooster (for the private-sector impact).
            Sincerely,
                                              James L. Blum
                                   (For June E. O'Neill, Director).
    Enclosure.

H.R. 695--Security and Freedom Through Encryption (SAFE) Act of 1997

    Summary: H.R. 695 would establish policies for the domestic 
use and export of encryption products that facilitate the 
creation of secure computer networks.
    Assuming appropriation of the necessary amounts, CBO 
estimates that enacting this bill would result in additional 
discretionary spending of between $4.5 million and $7.1 million 
over the 1998-2002 period by the Bureau of Export 
Administration (BXA) and the Department of Justice (DOJ). 
Spending by BXA and DOJ for activities required by H.R. 695 
would total between $9 million and $11.6 million over the next 
five years--as compared to spending by BXA of about $4.5 
million over the same period under current policies. (Spending 
related to monitor encryption products by DOJ is negligible 
under current law.)
    Enacting H.R. 695 also would affect direct spending and 
receipts beginning in fiscal year 1998 through the imposition 
of criminal fines and the resulting spending from the Crime 
Victims Fund. Therefore, pay-as-you-go procedures would apply. 
CBO estimates, however, that the amounts of direct spending or 
receipts would not be significant.
    H.R. 695 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA), but CBO cannot 
estimate the cost of complying with that mandate at this time. 
The bill also would impose a private-sector mandate on public 
network service providers and manufacturers, distributors, and 
importers of encryption products. CBO estimates that the total 
direct cost of complying with this mandate would exceed the 
statutory threshold ($100 million in 1996, adjusted annually 
for inflation) for private-sector mandates established in UMRA. 
CBO's full analysis of the cost of the intergovernmental and 
the private-sector mandates will be provided under separate 
cover.
    Description of the bill's major provisions: H.R. 695 would 
establish controls for the domestic use and export of 
encryption technologies. The bill would allow individuals in 
the United States to use any form of encryption but would 
prevent the sale of encryption products without plaintext 
recovery systems after January 31, 2000. (The term 
``plaintext'' means the readable or comprehensible format of 
information.) The bill would authorize the Department of 
Commerce to exempt encryption products with plaintext recovery 
systems from certain export licensing requirements after the 
same date. In addition, H.R. 695 would require the Secretary of 
Commerce to establish a key management system for use by the 
federal government and private-sector organizations. A key 
management system enables agencies or companies to entrust the 
code to encryption products to a third party.
    H.R. 695 would establish procedures to enable law 
enforcement officials to gain access to plaintext recovery 
systems upon presentation of a court order. The bill would 
direct the Attorney General to maintain data on the instances 
in which encryption impedes or obstructs the ability of DOJ to 
enforce criminal laws. Finally, the bill would establish 
criminal penalties and fines for the use of encryption 
technologies to further a crime, for the unlawful access of 
encrypted information, or for the unlawful sale of encryption 
technologies.

Estimated cost to the Federal Government

            Spending Subject to Appropriation
    Under current policy, BXA would likely spend about $900,000 
a year, totaling $4.5 million over the 1998-2002 period, to 
monitor exports of encryption products. Assuming appropriation 
of the necessary amounts, CBO estimates that enacting H.R. 695 
would increase BXA's encryption-related costs to about $6.6 
million over the same period. That cost consists of two 
components: (1) costs to monitor encryption exports, and (2) 
costs for the new key management system. H.R. 695 would 
authorize the Department of Commerce through BXA to exempt 
encryption products with plaintext recovery systems from 
certain export licensing requirements after January 31, 2000. 
As a result, CBO estimates that the agency's cost to monitor 
encryption exports would decrease from about $900,000 in fiscal 
years 1998 and 1999 to about $650,000 in fiscal year 2000 and 
$500,000 in each year thereafter, for a five-year total of 
about $3.5 million. H.R. 695 also would require the agency to 
establish and maintain a key management system. Based on 
information from BXA, CBO estimates that establishing and 
maintaining this system would cost BXA about $500,000 in fiscal 
year 1998 and $600,000 in each year thereafter, for a five-year 
total of about $3.1 million.
    H.R. 695 would require the Department of Justice to collect 
and maintain data on the instances in which encryption impedes 
or obstructs the ability of the agency to enforce criminal 
laws. The agency is uncertain as to how much it would cost to 
track such classified information nationwide. For the purposes 
of this estimate, CBO projects that collecting and maintaining 
the data would cost DOJ between $500,000 and $1 million a year, 
assuming appropriation of the necessary amounts.
            Direct Spending and Revenues
    Enacting H.R. 695 would affect direct spending and receipts 
through the imposition of criminal fines for the use of 
encryption technologies to further a crime, for the unlawful 
access of encrypted information, and for the unlawful sale of 
encryption technologies. CBO estimates that collections from 
such fines are likely to be negligible, however, because the 
federal government would probably not pursue many cases under 
the bill. Any such collections would be deposited in the Crime 
Victims Fund and spent the following year. Because the increase 
in direct spending would be the same amount as the amount of 
fines collected with a one-year lag, the additional direct 
spending also would be negligible.
    The costs of this legislation fall within budget functions 
370 (commerce and housing credit) and 750 (administration of 
justice).
    Pay-as-you-go considerations: Section 252 of the Balanced 
Budget and Emergency Deficit Control Act of 1985 sets up pay-
as-you-go procedures for legislation affecting direct spending 
or receipts. H.R. 695 would affect direct spending and receipts 
through the imposition of criminal fines and the resulting 
spending from the Crime Victims Fund. CBO estimates, however, 
that any collections and spending resulting from such fines 
would not be significant.
    Estimated impact on State, local, and tribal governments: 
H.R. 695 contains an intergovernmental mandate as defined in 
UMRA, because state and local governments that offer Internet 
access to their citizens would meet the bill's definition of 
``network service provider.'' As such, they would be required 
to ensure that any encryption products or services they provide 
enable the immediate decryption or access to the plaintext of 
encrypted data. At the present time, CBO is unsure of how many 
states and localities offer Internet access, as well as the 
steps these governments would take to comply with the mandate. 
CBO therefore cannot estimate the cost of complying with the 
mandate at this time and cannot determine whether the threshold 
established in UMRA would be exceeded.
    Estimated impact on the private sector: H.R. 695 would 
establish controls on domestic encryption technology. 
Specifically, the bill would require sellers of encryption 
products to include features or functions that permit duly 
authorized individuals to gain immediate access to the 
encrypted material without the knowledge or cooperation of the 
user of those products. Thus, it would impose a federal 
private-sector mandate on network service providers and 
manufacturers, distributors, and importers of encryption 
products. CBO estimates that the total direct cost of complying 
with this mandate would exceed the statutory threshold ($100 
million in 1996, adjusted annually for inflation) for private-
sector mandates established in UMRA.
    Section 4 of UMRA excludes from consideration any 
provisions that are considered necessary for national security 
purposes. Such provisions are found in Title III, Exports of 
Encryption.
    CBO's full analysis of the costs of the intergovernmental 
and private-sector mandates will be provided under separate 
cover.
    Previous CBO estimate: CBO provided cost estimates for H.R. 
695 as ordered reported by the House Committee on the Judiciary 
on May 14, 1997, by the House Committee on International 
Relations on July 22, 1997, and by the House Committee on 
National Security on September 9, 1997. Assuming appropriation 
of the necessary amounts, CBO estimates that costs over the 
1998-2002 period would total between $5 million and $7 million 
for the Judiciary Committee's version, about $2.2 million for 
the International Relations Committee's version, and about $4.5 
million for the National Security Committee's version. In 
comparison, CBO estimates that enacting this version of the 
bill would cost between $9 million and $11.6 million and that 
spending under current policies would total $4.5 million.
    Estimate prepared by: Federal Costs: Rachel Forward; 
Revenues: Alyssa Trzeszkowski; Impact on State, Local, and 
Tribal Governments; Pepper Santalucia; and Impact on the 
Private Sector: Jean Wooster.
    Estimate approved by: Paul N. Van de Water, Assistant 
Director for Budget Analysis.

                        Committee Cost Estimates

    The Committee agrees with the estimate of the Congressional 
Budget Office.

 Specific Constitutional Authority for Congressional Enactment of This 
                              Legislation

    The intelligence and intelligence-related activities of the 
United States government are carried out to support the 
national security interests of the United States, to support 
and assist the armed forces of the United States, and to 
support the President in the execution of the foreign policy of 
the United States. Article 1, section 8, of the Constitution of 
the United States provides, in pertinent part, that ``Congress 
shall have power * * * to pay the debts and provide for the 
common defence and general welfare of the United States; * * 
*''; ``to raise and support Armies, * * *''; ``to provide and 
maintain a Navy; * * *'' and ``to make all laws which shall be 
necessary and proper for the carrying into execution * * * all 
other powers vested by this Constitution in the Government of 
the United States, or in any Department or Officer thereof.'' 
Therefore, pursuant to such authority, Congress is empowered to 
enact this legislation.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (new matter is printed 
in italic and existing law in which no change is proposed is 
shown in roman):

                      TITLE 18, UNITED STATES CODE

          * * * * * * *

                             PART I--CRIMES

          * * * * * * *
Chap.                                                               Sec.
1.     General provisions.........................................     1
     * * * * * * *
121.  Stored wire and electronic communications and transactional 
              records access......................................  2701
122.  Encrypted data, including communications....................  2801
     * * * * * * *

         CHAPTER 122--ENCRYPTED DATA, INCLUDING COMMUNICATIONS

Sec.
2801. Unlawful use of encryption in furtherance of a criminal act.
2802. Privacy protection.
2803. Unlawful sale of encryption.
2804. Encryption products manufactured and intended for use in the 
          United States.
2805. Injunctive relief and proceedings.
2806. Court order access to plaintext.
2807. Notification procedures.
2808. Lawful use of plaintext or decryption information.
2809. Identification of decryption information.
2810. Unlawful export of certain encryption products.
2811. Definitions.

Sec. 2801. Unlawful use of encryption in furtherance of a criminal act

  (a) Prohibited Acts.--Whoever knowingly uses encryption in 
furtherance of the commission of a criminal offense for which 
the person may be prosecuted in a district court of the United 
States shall--
          (1) in the case of a first offense under this 
        section, be imprisoned for not more than 5 years, or 
        fined under this title, or both; and
          (2) in the case of a second or subsequent offense 
        under this section, be imprisoned for not more than 10 
        years, or fined under this title, or both.
  (b) Consecutive Sentence.--Notwithstanding any other 
provision of law, the court shall not place on probation any 
person convicted of a violation of this section, nor shall the 
term of imprisonment imposed under this section run 
concurrently with any other term of imprisonment imposed for 
the underlying criminal offense.
  (c) Probable Cause Not Constituted by Use of Encryption.--The 
use of encryption alone shall not constitute probable cause to 
believe that a crime is being or has been committed.

Sec. 2802. Privacy protection

  (a) In General.--It shall be unlawful for any person to 
intentionally--
          (1) obtain or use decryption information without 
        lawful authority for the purpose of decrypting data, 
        including communications;
          (2) exceed lawful authority in decrypting data, 
        including communications;
          (3) break the encryption code of another person 
        without lawful authority for the purpose of violating 
        the privacy or security of that person or depriving 
        that person of any property rights;
          (4) impersonate another person for the purpose of 
        obtaining decryption information of that person without 
        lawful authority;
          (5) facilitate or assist in the encryption of data, 
        including communications, knowing that such data, 
        including communications, are to be used in furtherance 
        of a crime; or
          (6) disclose decryption information in violation of a 
        provision of this chapter.
  (b) Criminal Penalty.--Whoever violates this section shall be 
imprisoned for not more than 10 years, or fined under this 
title, or both.

Sec. 2803. Unlawful sale of encryption

  Whoever, after January 31, 2000, sells in interstate or 
foreign commerce any encryption product that does not include 
features or functions permitting duly authorized persons 
immediate access to plaintext or immediate decryption 
capabilities shall be imprisoned for not more than 5 years, 
fined under this title, or both.

Sec. 2804. Encryption products manufactured and intended for use in the 
                    United States

  (a) Public Network Service Providers.--After January 31, 
2000, public network service providers offering encryption 
products or encryption services shall ensure that such products 
or services enable the immediate decryption or access to 
plaintext of the data, including communications, encrypted by 
such products or services on the public network upon receipt of 
a court order or warrant, pursuant to section 2806.
  (b) Manufacturers, Distributors, and Importers.--After 
January 31, 2000, it shall be unlawful for any person to 
manufacture for distribution, distribute, or import encryption 
products intended for sale or use in the United States, unless 
that product--
          (1) includes features or functions that provide an 
        immediate access to plaintext capability, through any 
        means, mechanism, or technological method that--
                  (A) permits immediate decryption of the 
                encrypted data, including communications, upon 
                the receipt ofdecryption information by an 
authorized party in possession of a facially valid order issued by a 
court of competent jurisdiction; and
                  (B) allows the decryption of encrypted data, 
                including communications, without the knowledge 
                or cooperation of the person being 
                investigated, subject to the requirements set 
                forth in section 2806;
          (2) can be used only on systems or networks that 
        include features or functions that provide an immediate 
        access to plaintext capability, through any means, 
        mechanism, or technological method that--
                  (A) permits immediate decryption of the 
                encrypted data, including communications, upon 
                the receipt of decryption information by an 
                authorized party in possession of a facially 
                valid order issued by a court of competent 
                jurisdiction; and
                  (B) allows the decryption of encrypted data, 
                including communications, without the knowledge 
                or cooperation of the person being 
                investigated, subject to the requirements set 
                forth in section 2806; or
          (3) otherwise meets the technical requirements and 
        functional criteria promulgated by the Attorney General 
        under subsection (c).
  (c) Attorney General Criteria.--
          (1) Publication of requirements.--Within 180 days 
        after the date of the enactment of this chapter, the 
        Attorney General shall publish in the Federal Register 
        technical requirements and functional criteria for 
        complying with the decryption requirements set forth in 
        this section.
          (2) Procedures for advisory opinions.--Within 180 
        days after the date of the enactment of this chapter, 
        the Attorney General shall promulgate procedures by 
        which data network service providers and encryption 
        product manufacturers, sellers, re-sellers, 
        distributors, and importers may obtain advisory 
        opinions as to whether an encryption product intended 
        for sale or use in the United States after January 31, 
        2000, meets the requirements of this section and the 
        technical requirements and functional criteria 
        promulgated pursuant to paragraph (1).
          (3) Particular methodology not required.--Nothing in 
        this chapter or any other provision of law shall be 
        construed as requiring the implementation of any 
        particular decryption methodology in order to satisfy 
        the requirements of subsections (a) and (b), or the 
        technical requirements and functional criteria required 
        by the Attorney General under paragraph (1).
  (d) Use of Prior Products Lawful.--After January 31, 2000, it 
shall not be unlawful to use any encryption product purchased 
or in use prior to such date.

Sec. 2805. Injunctive relief and proceedings

  (a) Injunction.--Whenever it appears to the Secretary or the 
Attorney General that any person is engaged in, or is about to 
engage in, any act that constitutes, or would constitute, a 
violation of section 2804, the Attorney General may initiate a 
civil action in a district court of the United States to enjoin 
such violation. Upon the filing of the complaint seeking 
injunctive relief by the Attorney General, the court shall 
automatically issue a temporary restraining order against the 
party being sued.
  (b) Burden of Proof.--In a suit brought by the Attorney 
General under subsection (a), the burden shall be upon the 
Government to establish by a preponderance of the evidence that 
the encryption product involved does not comport with the 
requirements set forth by the Attorney General pursuant to 
section 2804 providing for immediate access to plaintext by 
Federal, State, or local authorities.
  (c) Closing of Proceedings.--(1) Upon motion of the party 
against whom injunction is being sought--
          (A) any or all of the proceedings under this section 
        shall be closed to the public; and
          (B) public disclosure of the proceedings shall be 
        treated as contempt of court.
  (2) Upon a written finding by the court that public 
disclosure of information relevant to the prosecution of the 
injunction or relevant to a determination of the factual or 
legal issues raised in the case would cause irreparable or 
financial harm to the party against whom the suit is brought, 
or would otherwise disclose proprietary information of any 
party to the case, all proceedings shall be closed to members 
of the public, except the parties to the suit, and all 
transcripts, motions, and orders shall be placed under seal to 
protect their disclosure to the general public.
  (d) Advisory Opinion as Defense.--It is an absolute defense 
to a suit under this subsection that the party against whom 
suit is brought obtained an advisory opinion from the Attorney 
General pursuant to section 2804(c) and that the product at 
issue in the suit comports in every aspect with the 
requirements announced in such advisory opinion.
  (e) Basis for Permanent Injunction.--The court shall issue a 
permanent injunction against the distribution of, and any 
future manufacture of, the encryption product at issue in the 
suit filed under subsection (a) if the court finds by a 
preponderance of the evidence that the product does not meet 
the requirements set forth by the Attorney General pursuant to 
section 2804 providing for immediate access to plaintext by 
Federal, State, or local authorities.
  (f) Appeals.--Either party may appeal, to the appellate court 
with jurisdiction of the case, any adverse ruling by the 
district court entered pursuant to this section. For the 
purposes of appeal, the parties shall be governed by the 
Federal Rules of Appellate Procedure, except that the 
Government shall file its notice of appeal not later than 30 
days after the entry of the final order on the docket of the 
district court. The appeal of such matter shall be considered 
on an expedited basis and resolved as soon as practicable.

Sec. 2806. Court order access to plaintext

  (a) Court Order.--(1) A court of competent jurisdiction shall 
issue an order, ex parte, granting an investigative or law 
enforcement officer immediate access to the plaintext of 
encrypted data, including communications, or requiring any 
person in possession of decryption information to provide such 
information to a duly authorized investigative or law 
enforcement officer--
          (A) upon the application by an attorney for the 
        Government that--
                  (i) is made under oath or affirmation by the 
                attorney for the Government; and
                  (ii) provides a factual basis establishing 
                the relevance that the plaintext or decryption 
                information being sought has to a law 
                enforcement or foreign counterintelligence 
                investigation then being conducted pursuant to 
                lawful authorities; and
          (B) if the court finds, in writing, that the 
        plaintext or decryption information being sought is 
        relevant to an ongoing lawful law enforcement or 
        foreign counterintelligence investigation and the 
        investigative or law enforcement officer is entitled to 
        such plaintext or decryption information.
  (2) The order issued by the court under this section shall be 
placed under seal, except that a copy may be made available to 
the investigative or law enforcement officer authorized to 
obtain access to the plaintext of the encrypted information, or 
authorized to obtain the decryption information sought in the 
application. Such order shall also be made available to the 
person responsible for providing the plaintext or the 
decryption information, pursuant to such order, to the 
investigative or law enforcement officer.
  (3) Disclosure of an application made, or order issued, under 
this section, is not authorized, except as may otherwise be 
specifically permitted by this section or another order of the 
court.
  (b) Other Orders.--An attorney for the Government may make 
application to a district court of the United States for an 
order under subsection (a), upon a request from a foreign 
country pursuant to a Mutual Legal Assistance Treaty with such 
country that is in effect at the time of the request from such 
country.
  (c) Record of Access Required.--(1) There shall be created an 
electronic record, or similar type record, of each instance in 
which an investigative or law enforcement officer, pursuant to 
an order under this section, gains access to the plaintext of 
otherwise encrypted information, or is provided decryption 
information, without the knowledge or consent of the owner of 
the data, including communications, who is the user of the 
encryption product involved.
  (2) The court issuing the order under this section shall 
require that the electronic or similar type of record described 
in paragraph (1) is maintained in a place and a manner that is 
not within the custody or control of an investigative or law 
enforcement officer gaining the access or provided the 
decryption information. The record shall be tendered to the 
court, upon notice from the court.
  (3) The court receiving such electronic or similar type of 
record described in paragraph (1) shall make the original and a 
certified copy of the record available to the attorney for the 
Government making application under this section, and to the 
attorney for, or directly to, the owner of the data, including 
communications, who is the user of the encryption product.
  (d) Authority To Intercept Communications Not Increased.--
Nothing in this chapter shall be construed to enlarge or modify 
the circumstances or procedures under which a Government entity 
is entitled to intercept or obtain oral, wire, or electronic 
communications or information.
  (e) Construction.--This chapter shall be strictly construed 
to apply only to a Government entity's ability to decrypt data, 
including communications, for which it has previously obtained 
lawful authority to intercept or obtain pursuant to other 
lawful authorities that would otherwise remain encrypted.

Sec. 2807. Notification procedures

  (a) In General.--Within a reasonable time, but not later than 
90 days after the filing of an application for an order under 
section 2806 which is granted, the court shall cause to be 
served, on the persons named in the order or the application, 
and such other parties whose decryption information or whose 
plaintext has been provided to an investigative or law 
enforcement officer pursuant to this chapter as the court may 
determine that is in the interest of justice, an inventory 
which shall include notice of--
          (1) the fact of the entry of the order or the 
        application;
          (2) the date of the entry of the application and 
        issuance of the order; and
          (3) the fact that the person's decryption information 
        or plaintext data, including communications, have been 
        provided or accessed by an investigative or law 
        enforcement officer.
The court, upon the filing of a motion, may make available to 
that person or that person's counsel, for inspection, such 
portions of the plaintext, applications, and orders as the 
court determines to be in the interest of justice. On an ex 
parte showing of good cause to a court of competent 
jurisdiction, the serving of the inventory required by this 
subsection may be postponed.
  (b) Admission Into Evidence.--The contents of any encrypted 
information that has been obtained pursuant to this chapter or 
evidence derived therefrom shall not be received in evidence or 
otherwise disclosed in any trial, hearing, or other proceeding 
in a Federal or State court unless each party, not less than 10 
days before the trial, hearing, or proceeding, has been 
furnished with a copy of the order, and accompanying 
application, under which the decryption or access to plaintext 
was authorized or approved. This 10-day period may be waived by 
the court if the court finds that it was not possible to 
furnish the party with the information described in the 
preceding sentence within 10 days before the trial, hearing, or 
proceeding and that the party will not be prejudiced by the 
delay in receiving such information.
  (c) Contempt.--Any violation of the provisions of this 
section may be punished by the court as a contempt thereof.
  (d) Motion To Suppress.--Any aggrieved person in any trial, 
hearing, or proceeding in or before any court, department, 
officer, agency, regulatory body, or other authority of the 
United States or a State may move to suppress the contents of 
any decrypted data, including communications, obtained pursuant 
to this chapter, or evidence derived therefrom, on the grounds 
that --
          (1) the plaintext was unlawfully decrypted or 
        accessed;
          (2) the order of authorization or approval under 
        which it was decrypted or accessed is insufficient on 
        its face; or
          (3) the decryption was not made in conformity with 
        the order of authorization or approval.
Such motion shall be made before the trial, hearing, or 
proceeding unless there was no opportunity to make such motion, 
or the person was not aware of the grounds of the motion. If 
the motion is granted, the plaintext of the decrypted data, 
including communications, or evidence derived therefrom, shall 
be treated as having been obtained in violation of this 
chapter. The court, upon the filing of such motion by the 
aggrieved person, may make available to the aggrieved person or 
that person's counsel for inspection such portions of the 
decrypted plaintext, or evidence derived therefrom, as the 
court determines to be in the interests of justice.
  (e) Appeal by United States.--In addition to any other right 
to appeal, the United States shall have the right to appeal 
from an order granting a motion to suppress made under 
subsection (d), or the denial of an application for an order 
under section 2806, if the United States attorney certifies to 
the court or other official granting such motion or denying 
such application that the appeal is not taken for purposes of 
delay. Such appeal shall be taken within 30 days after the date 
the order was entered on the docket and shall be diligently 
prosecuted.
  (f) Civil Action for Violation.--Except as otherwise provided 
in this chapter, any person described in subsection (g) may in 
a civil action recover from the United States Government the 
actual damages suffered by the person as a result of a 
violation described in that subsection, reasonable attorney's 
fees, and other litigation costs reasonably incurred in 
prosecuting such claim.
  (g) Covered Persons.--Subsection (f) applies to any person 
whose decryption information--
          (1) is knowingly obtained without lawful authority by 
        an investigative or law enforcement officer;
          (2) is obtained by an investigative or law 
        enforcement officer with lawful authority and is 
        knowingly used or disclosed by such officer unlawfully; 
        or
          (3) is obtained by an investigative or law 
        enforcement officer with lawful authority and whose 
        decryption information is unlawfully used to disclose 
        the plaintext of the data, including communications.
  (h) Limitation.--A civil action under subsection (f) shall be 
commenced not later than 2 years after the date on which the 
unlawful action took place, or 2 years after the date on which 
the claimant first discovers the violation, whichever is later.
  (i) Exclusive Remedies.--The remedies and sanctions described 
in this chapter with respect to the decryption of data, 
including communications, are the only judicial remedies and 
sanctions for violations of this chapter involving such 
decryptions, other than violations based on the deprivation of 
any rights, privileges, or immunities secured by the 
Constitution.
  (j) Technical Assistance by Providers.--A provider of 
encryption technology or network service that has received an 
order issued by a court pursuant to this chapter shall provide 
to the investigative or law enforcement officer concerned such 
technical assistance as is necessary to execute the order. Such 
provider may, however, move the court to modify or quash the 
order on the ground that its assistance with respect to the 
decryption or access to plaintext cannot be performed in a 
timely or reasonable fashion. The court, upon notice to the 
Government, shall decide such motion expeditiously.
  (k) Reports to Congress.--In May of each year, the Attorney 
General, or an Assistant Attorney General specifically 
designated by the Attorney General, shall report in writing to 
Congress on the number of applications made and orders entered 
authorizing Federal, State, and local law enforcement access to 
decryption information for the purposes of reading the 
plaintext of otherwise encrypted data, including 
communications, pursuant to this chapter. Such reports shall be 
submitted to the Committees on the Judiciary of the House of 
Representatives and of the Senate, and to the Permanent Select 
Committee on Intelligence for the House of Representatives and 
the Select Committee on Intelligence for the Senate.

Sec. 2808. Lawful use of plaintext or decryption information

  (a) Authorized Use of Decryption Information.--
          (1) Criminal investigations.--An investigative or law 
        enforcement officer to whom plaintext or decryption 
        information is provided may use such plaintext or 
        decryption information for the purposes of conducting a 
        lawful criminal investigation or foreign 
        counterintelligence investigation, and for the purposes 
        of preparing for and prosecuting any criminal violation 
        of law.
          (2) Civil redress.--Any plaintext or decryption 
        information provided under this chapter to an 
        investigative or law enforcement officer may not be 
        disclosed, except by court order, to any other person 
        for use in a civil proceeding that is unrelated to a 
        criminal investigation and prosecution for which the 
        plaintext or decryption information is authorized under 
        paragraph (1). Such order shall only issue upon a 
        showing by the party seeking disclosure that there is 
        no alternative means of obtaining the plaintext, or 
        decryption information, being sought and the court also 
        finds that the interests of justice would not be served 
        by nondisclosure.
  (b) Limitation.--An investigative or law enforcement officer 
may not use decryption information obtained under this chapter 
to determine the plaintext of any data, including 
communications, unless it has obtained lawful authority to 
obtain such data, including communications, under other lawful 
authorities.
  (c) Return of Decryption Information.--An attorney for the 
Government shall, upon the issuance of an order of a court of 
competent jurisdiction--
          (1)(A) return any decryption information to the 
        person responsible for providing it to an investigative 
        or law enforcement officer pursuant to this chapter; or
          (B) destroy such decryption information, if the court 
        finds that the interests of justice or public safety 
        require that such decryption information should not be 
        returned to the provider; and
          (2) within 10 days after execution of the court's 
        order to destroy the decryption information--
                  (A) certify to the court that the decryption 
                information has either been returned or 
                destroyed consistent with the court's order; 
                and
                  (B) notify the provider of the decryption 
                information of the destruction of such 
                information.
  (d) Other Disclosure of Decryption Information.--Except as 
otherwise provided in section 2806, a key recovery agent may 
not disclose decryption information stored with the key 
recovery agent by a person unless the disclosure is--
          (1) to the person, or an authorized agent thereof;
          (2) with the consent of the person, including 
        pursuant to a contract entered into with the person;
          (3) pursuant to a court order upon a showing of 
        compelling need for the information that cannot be 
        accommodated by any other means if--
                  (A) the person who supplied the information 
                is given reasonable notice, by the person 
                seeking the disclosure, of the court proceeding 
                relevant to the issuance of the court order; 
                and
                  (B) the person who supplied the information 
                is afforded the opportunity to appear in the 
                court proceeding and contest the claim of the 
                person seeking the disclosure;
          (4) pursuant to a determination by a court of 
        competent jurisdiction that another person is lawfully 
        entitled to hold such decryption information, including 
        determinations arising from legal proceedings 
        associated with the incapacity, death, or dissolution 
        of any person; or
          (5) otherwise permitted by a provision of this 
        chapter or otherwise permitted by law.

Sec. 2809. Identification of decryption information

  (a) Identification.--To avoid inadvertent disclosure, any 
person who provides decryption information to an investigative 
or law enforcement officer pursuant to this chapter shall 
specifically identify that part of the material provided that 
discloses decryption information as such.
  (b) Responsibility of Investigative or Law Enforcement 
Officer.--The investigative or law enforcement officer 
receiving any decryption information under this chapter shall 
maintain such information in facilities and in a method so as 
to reasonably assure that inadvertent disclosure does not 
occur.

Sec. 2810. Unlawful export of certain encryption products

  Whoever, after January 31, 2000, knowingly exports an 
encryption product that does not include features or functions 
providing duly authorized persons immediate access to plaintext 
or immediate decryption capabilities, as required under law, 
shall be imprisoned for not more than 5 years, fined under this 
title, or both.

Sec. 2811. Definitions

  The definitions set forth in section 101 of the Security and 
Freedom through Encryption (``SAFE'') Act of 1997 shall apply 
to this chapter.
          * * * * * * *

     ADDITIONAL VIEWS OF REPRESENTATIVES DICKS, SKELTON, AND BISHOP

    In considering H.R. 695, we used six principles as a guide 
through the difficult and complex issues posed by encryption 
technology.
    First, Congress should take no action to impair or abridge 
the rights, liberties, and privacy of the American people 
guaranteed by our constitution.
    Second, Congress has an obligation to ensure that the 
ability of law enforcement agencies to provide protection 
against violent criminals, terrorists, narcotics dealers, 
organized crime syndicates, and espionage is not unwisely 
diminished.
    Third, there is an equally compelling need to guarantee the 
protection of electronic information for the security of the 
nation, for the privacy and protection of our citizens and 
their property, and for the prosperity of the country through a 
new form of commerce.
    Fourth, Congress must protect our ability to collect 
intelligence to support national defense, diplomacy, and law 
enforcement.
    Fifth, we must not disadvantage, and should as best we can 
promote, American workers and companies seeking to maintain 
dominance in information technologies.
    Finally, our domestic and foreign policy in this area 
should, to the maximum extent possible, be consistent and 
reinforcing.
    It is commonly asserted that these principles are 
substantially at odds with one another, such that any 
consistent policy position must entail compromises among them--
perhaps fatal ones. We do not believe that is true and am 
convinced that the substitute the Committee adopted is faithful 
to all these principles.
    In contrast, H.R. 695 as referred to the Committee is in 
conflict with several of the foregoing principles. H.R. 695 is 
incompatible with national security because it essentially does 
away with the export control process. Gutting the export 
control process would also have serious foreign policy 
consequences, undermining administration attempts to develop an 
international consensus on encryption policy and perhaps 
prompting other countries to erect import barriers to U.S. 
encryption products and associated hardware and software 
systems. The bill would do nothing to foster a domestic key 
management infrastructure, which the administration, the 
Committee, and much of industry believe is important for the 
rapid expansion of electronic commerce. The bill is deficient 
also in that it would not help law enforcement overcome the 
negative consequences of the inevitable proliferation of strong 
encryption.
    Without legislative intervention, in the near future the 
nation's police departments and the FBI will not need to bother 
to install wiretaps because everything they hear will be 
encrypted. Proponents of H.R. 695 as referred to the Committee 
acknowledge this problem but argue that the law enforcement 
interest is a narrow one and should be sacrificed. Others 
assert that it is futile to try to protect law enforcement 
equities either because unbreakable encryption will proliferate 
no matter what the government does, or that any government 
regulatory actions will do much more harm than good. With 
regard to export controls, proponents of H.R. 695 contend that 
without an inclusive international compact to regulate 
encryption, it is pointless, crippling to U.S. industry, to 
maintain a rigid export control regime. They assert that there 
is no reason to believe that any international consensus is 
likely, and that U.S. industry already faces an imminent 
competitive threat.
    We reject these arguments. Communications intercepts are a 
critically important and effective law enforcement tool. While 
it is true that the government cannot hope to prevent 
determined and resourceful criminals, terrorists, and others 
from using unbreakable encryption to hide their activities, 
these elements must interact with society at large, and 
therefore must conduct most of their business using standard 
forms of electronic commerce and communication. If the latter 
provide lawful access to the plaintext of encrypted 
information, or to decryption information pursuant to court 
order, law enforcement will be able to conduct investigations 
effectively. Thus it is neither necessary nor expected that the 
Committee substitute would eradicate unapproved encryption 
capabilities.
    In terms of the practicality of regulating encryption 
products, we recognize also that it is not a certainty that the 
burden the substitute would place on the marketplace to provide 
some form of access for communications will prove to be 
marginally costly or inconvenient. We acknowledge the 
possibility that critics could be right--that these 
requirements will be unwieldy or expensive, or both. But it is 
far from clear today that the critics are right, and the 
administration predicts modest annual user costs. If the law is 
to err, however, we strongly favor doing it on the side of 
ensuring that our public safety and national security officials 
can continue to do their jobs effectively.
    We recognize that there is no certainty of success in the 
attempt to convince the other advanced nations of the need to 
control encryption to protect law enforcement as we propose to 
do. The United States cannot hope to convince others to take 
this path, however, if it decides first to flood the world with 
unbreakable encryption, and second to proclaim that domestic 
controls are somewhat incompatible with liberty.
    Furthermore, any fair assessment of the status of 
discussions with other advanced nations on this issue would 
conclude that success is quite feasible. Similarly, claims 
about the availability of truly strong encryption products on 
the world market that users can readily access and employ are 
clearly exaggerated. Finally, as the section-by-section 
analysis in this report explains, the Committee substitute 
provides for the export of encryption products with an access 
``on-off switch,'' in effect allowing industry to export 
unbreakable encryption to countries that have no requirement 
for law enforcement access to plaintext.
    Critics also assert that it is unreasonable for Congress to 
consider levying a mandate on the private sector in information 
technology to provide a means for lawful access to encrypted 
information. In fact, there is an important precedent for such 
action. Just a few years ago, law enforcement agencies were 
similarly faced with the prospect of loosing the ability to 
intercept communications because of the astonishing complexity 
of the nation's emerging digital telecommunications networks--
even when the underlying information is unencrypted. Congress 
met the political challenge of supporting law enforcement in 
this instance by requiring communications service providers to 
install capabilities to permit effective wiretaps. This digital 
telephony act also required telephone communications service 
providers to provide access to plaintext to duly authorized law 
enforcement agencies where the service providers offered their 
customers encryption capabilities that could be decrypted. The 
point is that Congress was willing to do what was right when 
the issue was clear.
    We face another such challenge today. We believe that my 
colleagues will respond appropriately once they realize what is 
at stake. The place to start that educational process is here, 
with the Committee substitute. We do not think that a fair 
analysis of the substitute could conclude that it would 
compromise the rights of our citizens by insisting that law 
enforcement agencies merely retain their current ability to 
gather evidence through judicially sanctioned electronic 
surveillance.

                                   Norm Dicks.
                                   Ike Skelton.
                                   Sanford D. Bishop, Jr.

     ADDITIONAL VIEWS OF REPRESENTATIVES HARMAN, SKAGGS, AND DIXON

    The issue of encryption is one of the most difficult we 
have faced in our careers in the Congress. The technical 
complexities of algorithms and bit strength are the least of 
the problem. What is most challenging is discovering a way to 
balance competing policy concerns in the face of a rapidly 
evolving electronic infrastructure.
    We are convinced that H.R. 695 as introduced and reported 
from the Committees on Judiciary and International Relations is 
neither the right answer, nor a comprehensive approach to the 
challenges we face. As members of the Permanent Select 
Committee on Intelligence we believe U.S. policy should balance 
sometimes conflicting goals: protecting public computer 
networks from the threats of terrorists and other criminals 
through the use of strong encryption; promoting the economic 
competitiveness and the research and development breakthroughs 
of our vital information technology industry; encouraging the 
legal framework necessary for robust and reliable electronic 
commerce; and helping preserve public safety and national 
security.
    H.R. 695 as introduced was intended to promote economic 
competitiveness but it does little to address the strongly 
expressed concerns of law enforcement officials from around the 
country that the legislation would eliminate the possibility of 
electronic surveillance under lawful court order.
    The substitute the Committee has ordered reported is an 
attempt to address all of the issues in the debate 
comprehensively. Yet, it has been developed under an extremely 
short time frame, subject to a limited referral. We believe the 
legislation is too sweeping, particularly in placing new 
requirements on the manufacture, sale, and import of encryption 
products in the United States.
    While we want United States law enforcement and national 
security agencies, working under proper oversight, to have the 
tools they need to respond to threats to the public safety and 
national security, the requirement in the legislation that 
encryption products manufactured and distributed for sale or 
use, or imported for sale or use after January 31, 2000, 
include features or functions that provide, upon presentment of 
a court order, immediate access to plaintext data or decryption 
information from the encryption provider, raises a host of new 
questions and issues that need further exploration. We are 
worried less about the narrow question of technical feasibility 
than how such a requirement would implicate valid concerns 
about privacy, abuse of official authority, and the inherent 
security of data security services. We are concerned whether 
the legislation's provision on imports might be interpreted to 
mean an individual on the Internet downloading encryption from 
a foreign country was violating the law and about where the 
line would be drawn on the prohibited distribution of 
encryption products not meeting the bill's legal requirements.
    The substitute is intended to put in place a legal 
framework for, and safeguards on, law enforcement access to 
encrypted electronic information. This is positive. Imposing 
new criminal penalties for the invasion of privacy relating to 
the misuse of decryption information is appropriate to ensure 
that government officials who gain access to information on the 
electronic network do not exceed their lawful authority. 
Likewise, we support requiring a verifiable audit trail 
whenever government officials obtain access to plaintext and 
decrypted information, regardless of whether or not a recovery-
capable mandate on encryption is enacted. We are fast 
approaching what Kenneth Flamm of the Brookings Institution 
calls ``a digital future in which almost everything * * * is 
stored or communicated electronically, connected to or 
accessible through some computer network.'' It is time to take 
action on these issues.
    In addition, we recognize that the issues raised in this 
debate are international in scope. Given the availability of 
encryption technology abroad, and the ease of its 
dissemination, a unilateral export control policy on encryption 
will not work. Therefore, we must encourage, if not direct, the 
Administration to monitor closely international developments 
and to engage other countries in working out a multilateral 
approach to this issue.
    Recent events suggest passage of H.R. 695 as originally 
conceived is highly unlikely in the House of Representatives. 
We believe there now needs to be a very careful and 
deliberative effort to fashion balanced legislation. The 
information technology industry should suggest targeted 
legislative and regulatory amendments which will meet its need 
for fewer uncertainties in the export control process, while 
still allowing for regulatory flexibility as technology 
advances. Privacy advocates should recognize that government 
access to information residing on the electronic infrastructure 
in order to protect public safety is legitimate within 
reasonable constraints, and should propose what those 
reasonable constraints should be. Law enforcement officials 
should carefully evaluate where their highest priorities lie in 
protecting the public safety and preventing crime. The 
Administration should redouble its efforts to secure 
international agreements of mutual recognition of encryption 
management infrastructures to safeguard the privacy of United 
States citizens and enhance U.S. information security needs in 
electronic commerce. Continued stalemate on balancing the 
competing policy concerns is not in the interests of industry, 
law enforcement or the American people.

                                   Jane Harman.
                                   David E. Skaggs.
                                   Julian C. Dixon.

            ADDITIONAL VIEWS OF REPRESENTATIVE NANCY PELOSI

    I oppose the substitute to H.R. 695 ordered reported from 
the Permanent Select Committee on Intelligence. While there are 
indeed serious national security and law enforcement issues at 
stake in this debate, there are also serious questions about 
the impact of this legislation on the civil liberties on which 
this nation is based. A balance must be struck. The bill passed 
by the Committee does not strike the requisite balance.
    I was very concerned about the lack of an audit mechanism 
in the Committee's substitute as proposed and am pleased that 
the bill was amended to require an electronic audit trail, to 
ensure that there is accountability when an investigative or 
law enforcement officer obtains access to the plaintext of 
otherwise encrypted information or the provision of decryption 
information.
    Among the reasons I oppose the bill are the following:
    With respect to domestic controls, the ramifications of 
enacting a requirement that encryption products manufactured, 
distributed or imported in the United States after January 2000 
contain features that provide, upon presentment of a court 
order, immediate plaintext access or decryption information, 
are not well understood. It is not clear such a requirement 
could pass constitutional muster, particularly where it might 
place restrictions on the distribution of encryption algorithms 
or the free flow of ideas among scientists working in the area 
of information technology. Indeed imposing domestic controls 
runs counter to the first recommendation of the National 
Research Council's widely-respected CRISIS report 
(``Cryptography's Role in Security in the Information 
Society,'' June 1996) that no law bar the manufacture, sale or 
use of any form of encryption in the United States. Despite the 
many provisions of the legislation designed to place civil and 
criminal penalties on official misuse of decryption 
information, and provide privacy protections to those who 
encrypt information, further debate is needed on whether the 
legal framework governing lawful wiretaps is the appropriate 
model for the 21st Century as so much information concerning 
our personal and economic lives is connected and accessible on-
line.
    With respect to export controls, the legislation would 
force U.S. manufacturers to include features that could provide 
plaintext access or decryption information in encryption 
products exported overseas. Although the legislation allows 
these features to be enabled at the foreign purchaser's option, 
and does not require any keys or recovery information be held 
in escrow in the United States, demanding recovery capable 
features in exportable U.S. technology may provide repressive 
totalitarian regimes a new method of control over dissidents 
and human rights advocates who today evade surveillance by 
utilizing unbreakable encryption on the Internet.
    Also of concern is the impact of certain of the 
substitute's provisions on human rights activists in 
authoritarian countries. Human rights activists worldwide are 
using cryptography to protect their sources from reprisals by 
governments that violate human rights. Under the Committee 
substitute, the U.S. government can get a court order for 
violating the security of communications ``upon a request from 
a foreign country pursuant to a Mutual Legal Assistance 
Treaty.'' This provision will permit governments to breach the 
protection of confidential sources, thereby both endangering 
human rights activists using electronic communications and 
discouraging people who know of human rights violations to 
speak about them, even in private. Authoritarian governments 
often define the activities of those who dare to speak out 
against them as ``treason'' or ``revealing classified 
information,'' crimes recognized by the U.S. government. Under 
the Committee substitute, legitimate human rights activists, 
who now communicate safely through the Internet with strong 
encryption protection, will no longer have that safety.
    In addition, the legislation enshrines the broad concept 
that all decisions of the Secretary of Commerce with respect to 
the export of encryption products are not subject to judicial 
review. If the question at hand has to do with national 
security implications, the President could waive judicial 
review on a case-by-case basis as needed, rather than Congress 
acting to grant a blanket waiver of a citizen's right to 
recourse to the legal system.
    The serious issues involving national security and public 
safety could have been resolved with a more narrowly targeted 
approach. I hope efforts will be made to craft a consensus 
measure before H.R. 695 is considered on the floor of the House 
of Representatives.

                                                      Nancy Pelosi.

   Letters From Law Enforcement Officers and the Secretary of Defense

                                  The Secretary of Defense,
                                     Washington, DC, July 21, 1997.
    Dear Member of Congress: Recently you received a letter 
from the nation's senior law enforcement officials regarding 
U.S. encryption policies. I am writing today to express my 
strong support for their views on their important issue.
    As you know, the Department of Defense is involved on a 
daily basis in countering international terrorism, narcotics 
trafficking, and the proliferation of weapons of mass 
destruction. The spread of unbreakable encryption, as a 
standard feature of mass market communication products, 
presents a significant threat to the ability of the U.S. and 
its allies to monitor the dangerous groups and individuals 
involved in these activities. Passage of legislation which 
effectively decontrols commercial encryption exports would 
undermine U.S. efforts to foster the use of strong key recovery 
encryption domestically and abroad. Key recovery products will 
preserve governments' abilities to counter worldwide terrorism, 
narcotics trafficking and proliferation.
    It is also important to note that the Department of Defense 
relies on the Federal Bureau of Investigation for the 
apprehension and prosecution of spies. Sadly, there have been 
over 60 espionage convictions of federal employees over the 
last decade. While these individuals represent a tiny minority 
of government employees, the impact of espionage activities on 
our nation's security can be enormous. As the recent arrests of 
Nicholson, Pitts and Kim clearly indicate, espionage remains a 
very serious problem. Any policies that detract from the FBI's 
ability to perform its vital counterintelligence function, 
including the ability to perform wiretaps, inevitably detract 
from the security of the Department of Defense and the nation.
    Encryption legislation must also address the nation's 
domestic information security needs. Today, approximately 95% 
of DoD communications rely on public networks; other parts of 
government, and industry, are even more dependent on the 
trustworthiness of such networks. Clearly, we must ensure that 
encryption legislation addresses these needs. An approach such 
as the one contained in S. 909 can go a long way toward 
balancing the need for strong encryption with the need to 
preserve national security and public safety. I hope that you 
will work with the Administration to enact legislation that 
addresses these national security concerns as well as the 
rights of the American people.
    I appreciate your consideration of these views.
            Sincerely,
                                                        Bill Cohen.
                                ------                                

                            Office of the Attorney General,
                                     Washington, DC, July 18, 1997.
    Dear Member of Congress: Congress is considering a variety 
of legislative proposals concerning encryption. Some of these 
proposals would, in effect, make it impossible for the Federal 
Bureau of Investigation (FBI), Drug Enforcement Administration 
(DEA), Secret Service, Customs Service, Bureau of Alcohol, 
Tobacco and Firearms, and other federal, state, and local law 
enforcement agencies to lawfully gain access to criminal 
telephone conversations or electronically stored evidence 
possessed by terrorists, child pornographers, drug kingpins, 
spies and other criminals. Since the impact of these proposals 
would seriously jeopardize public safety and national security, 
we collectively urge you to support a different, balanced 
approach that strongly supports commercial and privacy 
interests but maintains our ability to investigate and 
prosecute serious crimes.
    We fully recognize that encryption is critical to 
communications security and privacy, and that substantial 
commercial interests are at stake. Perhaps in recognition of 
these facts, all the bills being considered allow market forces 
to shape the development of encryption products. We, too, place 
substantial reliance on market forces to promote electronic 
security and privacy, but believe that we cannot rely solely on 
market forces to protect the public safety and national 
security. Obviously, the government cannot abdicate its solemn 
responsibility to protect public safety and national security.
    Currently, of course, encryption is not widely used, and 
most data is stored, and transmitted, in the clear. As we move 
from a plaintext world to an encrypted one, we have a critical 
choice to make: we can either (1) choose robust, unbreakable 
encryption that protects commerce and privacy but gives 
criminals a powerful new weapon, or (2) choose robust, 
unbreakable encryption that protects commerce and privacy and 
gives law enforcement the ability to protect public safety. The 
choice should be obvious and it would be a mistake of historic 
proportions to do nothing about the dangers to public safety 
posed by encryption without adequate safeguards for law 
enforcement.
    Let there be no doubt: without encryption safeguards, all 
Americans will be endangered. No one disputes this fact; not 
industry, not encryption users, no one. We need to take 
definitive actions to protect the safety of the public and 
security of the nation. That is why law enforcement at all 
levels of government--including the Justice Department, 
Treasury Department, the National Association of Attorneys 
General, International Association of Chiefs of Police, the 
Major City Chiefs, the National Sheriffs' Association, and the 
National District Attorneys Association--are so concerned about 
this issue.
    We all agree that without adequate legislation, law 
enforcement in the United States will be severely limited in 
its ability to combat the worst criminals and terrorists. 
Further, law enforcement agrees that the widespread use of 
robust non-key recovery encryption ultimately will devastate 
our ability to fight crime and prevent terrorism.
    Simply stated, technology is rapidly developing to the 
point where powerful encryption will become commonplace both 
for routine telephone communications and for stored computer 
data. Without legislation that accommodates public safety and 
national security concerns, society's most dangerous criminals 
will be able to communicate safely and electronically store 
data without fear of discovery. Court orders to conduct 
electronic surveillance and court-authorized search warrants 
will be ineffectual, and the Fourth Amendment's carefully-
struck balance between ensuring privacy and protecting public 
safety will be forever altered by technology. Technology should 
not dictate public policy, and it should promote, rather than 
defeat, public safety.
    We are not suggesting the balance of the Fourth Amendment 
be tipped toward law enforcement either. To the contrary, we 
only seek the status quo, not the lessening of any legal 
standard or the expansion of any law enforcement authority. The 
Fourth Amendment protects the privacy and liberties of our 
citizens but permits law enforcement to use tightly controlled 
investigative techniques to obtain evidence of crimes. The 
result has been the freest country in the world with the 
strongest economy.
    Law enforcement has already confronted encryption in high-
profile espionage, terrorist, and criminal cases. For example:
          An international terrorist was plotting to blow up 11 
        U.S.-owned commercial airliners in the Far East. His 
        laptop computer, which was seized in Manila, contained 
        encrypted files concerning this terrorist plot;
          A subject in a child pornography case used encryption 
        in transmitting obscene and pornographic images of 
        children over the Internet; and
          A major international drug trafficking subject 
        recently used a telephone encryption device to 
        frustrate court-approved electronic surveillance.
And this is just the tip of the iceberg. Convicted spy Aldrich 
Ames, for example, was told by the Russian Intelligence Service 
to encrypt computer file information that was to be passed to 
them.
    Further, today's international drug trafficking 
organizations are the most powerful, ruthless and affluent 
criminal enterprises we have ever faced. We know from numerous 
past investigations that they have utilized their virtually 
unlimited wealth to purchase sophisticated electronic equipment 
to facilitate their illegal activities. This has included state 
of the art communication and encryption devices. They have used 
this equipment as part of their command and control process for 
their international criminal operations. We believe you share 
our concern that criminals will increasingly take advantage of 
developing technology to further insulate their violent and 
destructive activities.
    Requests for cryptographic support pertaining to electronic 
surveillance interceptions from FBI Field Offices and other law 
enforcement agencies have steadily risen over the past several 
years. There has been an increase in the number of instances 
where the FBI's and DEA's court-authorized electronic efforts 
were frustrated by the use of encryption that did not allow for 
law enforcement access.
    There have also been numerous other cases where law 
enforcement, through the use of electronic surveillance, has 
not only solved and successfully prosecuted serious crimes but 
has also been able to prevent life-threatening criminal acts. 
For example, terrorists in New York were plotting to bomb the 
United Nations building, the Lincoln and Holland Tunnels, and 
26 Federal Plaza as well as conduct assassinations of political 
figures. Court-authorized electronic surveillance enabled the 
FBI to disrupt the plot as explosives were being mixed. 
Ultimately, the evidence obtained was used to convict the 
conspirators. In another example, electronic surveillance was 
used to stop and then convict two men who intended to kidnap, 
molest, and kill a child. In all of these cases, the use of 
encryption might have seriously jeopardized public safety and 
resulted in the loss of life.
    To preserve law enforcement's abilities, and to preserve 
the balance so carefully established by the Constitution, we 
believe any encryption legislation must accomplish three goals 
in addition to promoting the widespread use of strong 
encryption. It must establish:
          A viable key management infrastructure that promotes 
        electronic commerce and enjoys the confidence of 
        encryption users;
          A key management infrastructure that supports a key 
        recovery scheme that will allow encryption users access 
        to their own data should the need arise, and that will 
        permit law enforcement to obtain lawful access to the 
        plaintext of encrypted communications and data; and
          An enforcement mechanism that criminalizes both 
        improper use of encryption key recovery information and 
        the use of encryption for criminal purposes.
    Only one bill, S. 909 (the McCain/Kerrey/Hollings bill), 
comes close to meeting these core public safety, law 
enforcement, and national security needs. The other bills being 
considered by Congress, as currently written, risk great harm 
to our ability to enforce the laws and protect our citizens. We 
look forward to working to improve the McCain/Kerrey/Hollings 
bill.
    In sum, while encryption is certainly a commercial interest 
of great importance to this Nation, it is not solely a 
commercial or business issue. Those of us charged with the 
protection of public safety and national security, believe that 
the misuse of encryption 
technology will become a matter of life and death in many 
instances. That is why we urge you to adopt a balanced approach 
that accomplishes the goals mentioned above. Only this approach 
will allow police departments, attorneys general, district 
attorneys, sheriffs, and federal authorities to continue to use 
their most effective investigative techniques, with court 
approval, to fight crime and espionage and prevent terrorism.
            Sincerely yours,
                                   Janet Reno,
                                           Attorney General.
                                   Louis Freeh,
                                           Director, Federal Bureau of 
                                               Investigation.
                                   Thomas A. Constantine,
                                           Director, Drug Enforcement 
                                               Administration.
                                   Raymond W. Kelly,
                                           Undersecretary for 
                                               Enforcement, U.S. 
                                               Department of the 
                                               Treasury.
                                   John W. Magaw,
                                           Director, Bureau of Alcohol, 
                                               Tobacco and Firearms.
                                   Barry McCaffrey,
                                           Director, Office of National 
                                               Drug Control Policy.
                                   Lewis C. Merletti,
                                           Director, United States 
                                               Secret Service.
                                   George J. Weise,
                                           Commissioner, United States 
                                               Customs Service.
                                ------                                

                       International Association of
                                          Chiefs of Police,
                                     Alexandria, VA, July 21, 1997.
    Dear Member of Congress: Enclosed is a letter sent to you 
by the Attorney General, the Director of National Drug Control 
Policy and all the federal law enforcement heads concerning 
encryption legislation being considered by congress. 
Collectively we, the undersigned, represent over 17,000 police 
departments including every major city police department, over 
3,000 sheriffs departments, nearly every district attorney in 
the United States and all of the state Attorneys General. We 
fully endorse the position taken by our federal counterparts in 
the enclosed letter. As we have stated many times, Congress 
must adopt a balanced approach to encryption that fully 
addresses public safety concerns or the ability of state and 
local law enforcement to fight crime and drugs will be severely 
damaged.
    Any encryption legislation that does not ensure that law 
enforcement can gain timely access to the plaintext of 
encrypted conversations and information by established legal 
procedures will cause grave harm to public safety. The risk 
cannot be left to the uncertainty of market forces or 
commercial interests as the current legislative proposals would 
require. Without adequate safeguards, the unbridled use of 
powerful encryption soon will deprive law enforcement of two of 
its most effective tools, court authorized electronic 
surveillance and the search and seizure of information stored 
in computers. This will substantially tip the balance in the 
fight against crime towards society's most dangerous criminals 
as the information age develops.
    We are in unanimous agreement that congress must adopt 
encryption legislation that requires the development, 
manufacture, distribution and sale of only key recovery 
products and we are opposed to the bills that do not do so. 
Only the key recovery approach will ensure that law enforcement 
can continue to gain timely access to the plaintext of 
encrypted conversations and other evidence of crimes when 
authorized by a court to do so. If we lose this ability--and 
the bills you are considering will have this result--it will be 
a substantial setback for law enforcement at the direct expense 
of public safety.
            Sincerely yours,
                                   Darrell L. Sanders,
                                           President, International 
                                               Association of Chiefs of 
                                               Police.
                                   James E. Doyle,
                                           President, National 
                                               Association of Attorneys 
                                               General.
                                   Fred Scoralie,
                                           President, National 
                                               Sheriffs' Association.
                                   William L. Murphy,
                                           President, National District 
                                               Attorneys Association.
                                ------                                

                                       Major Cities Chiefs,
                                         Chicago IL, July 24, 1997.
Hon. Orrin G. Hatch,
Chairman, Judiciary Committee, Senate Hart Office Building, Washington, 
        DC.
    Dear Mr. Chairman: The Major Cities Chiefs is a 
professional association of police executives representing the 
largest jurisdictions in the United States. The association 
provides a forum for urban police chiefs, sheriffs and other 
law enforcement chief executives to discuss common problems 
associated with protecting cites with populations exceeding 
500,000 people.
    Congress is considering a variety of legislative proposals 
concerning encryption. Some of these proposals would, in 
effect, make it impossible for law enforcement agencies across 
the country, both on the federal, state and local level, to 
lawfully gain access to criminal telephone conversations or 
electronically stored evidence. Since the impact of these 
proposals would seriously jeopardize public safety, our 
association urges you to support a balanced approach that 
strongly supports commercial and private interests but also 
maintains law enforcements ability to investigate and prosecute 
serious crime.
    While we recognize that encryption is critical to 
communications security and privacy and that commercial 
interests are at stake, we all agree that without adequate 
legislation, law enforcement across the country will be 
severely limited in its ability to combat serious crime. The 
widespread use of non-key recovery encryption ultimately will 
eliminate our ability to obtain valuable evidence of criminal 
activity. The legitimate and lawful interception of 
communications, pursuant to a court order, for the most serious 
criminal acts will be meaningless because of our inability to 
decipher the evidence.
    Encryption is certainly of great importance to the 
commercial interests across this country. However, public 
safety concerns are just as critical and we must not loose 
sight of this. The need to preserve an invaluable investigative 
tool is of the utmost importance in law enforcements ability to 
protect the public against serious crime.
            Sincerely yours,
                                       Matt L. Rodriguez, Chairman.
                                ------                                

                                  National District
                                     Attorneys Association,
                                                    Alexandria, VA.

                               Resolution

                               Encryption

    Whereas, the introduction of digitally-based 
telecommunications technologies as well as the widespread use 
of computers and computer networks having encryption 
capabilities are facilitating the development and production of 
strong, affordable encryption products and services for private 
sector use; and
    Whereas, on one hand the use of strong encryption products 
and services are extremely beneficial when used legitimately to 
protect commercially sensitive information and communications. 
On the other hand, the potential use of strong encryption 
products and services that do not allow for timely law 
enforcement decryption by a vast array of criminals and 
terrorist to conceal their criminal communications and 
information from law enforcement poses an extremely serious 
threat to public safety: and
    Whereas, the law enforcement community is extremely 
concerned about the serious threat posed by the use of these 
strong encryption products and services that do not allow for 
authorization (court-authorized wiretaps or court-authorized 
search and seizure); and
    Whereas, law enforcement fully supports a balanced 
encryption policy that satisfies both the commercial needs of 
industry for strong encryption while at the same time 
satisfying law enforcement's public safety needs for the timely 
decryption of encrypted criminal communications and 
information; and
    Whereas, law enforcement has found that strong key recovery 
encryption products and services are clearly the best way, and 
perhaps the only way, to achieve both the goals of industry and 
law enforcement; and
    Whereas, government representatives have been working with 
industry to encourage the voluntary development, sale, and use 
of key recovery encryption products and services in its pursuit 
of a balanced encryption policy;
    Be it resolved, That the National District Attorneys 
Association supports and encourages the development and 
adoption of a balanced encryption policy that encourages the 
development, sale, and use of key recovery encryption products 
and services, both domestically and abroad. We believe that 
this approach represents a policy that appropriately addresses 
both the commercial needs of industry while at the same time 
satisfying law enforcement's public safety needs.
                                ------                                


                               Encryption

    Whereas, the introduction of digitally-based 
telecommunications technologies, as well as the widespread use 
of computers and computer networks having encryption 
capabilities are facilitating the development and production of 
affordable and robust encryption products for private sector 
use; and
    Whereas, on one hand encryption is extremely beneficial 
when used legitimately to protect commercially sensitive 
information and communications. On the other hand, the 
potential use of such encryption products by a vast array of 
criminals and terrorists to conceal their criminal 
communications and information from law enforcement poses an 
extremely serious threat to public safety; and
    Whereas, the law enforcement community is extremely 
concerned about the serious threat posed by the use of robust 
encryption products that do not allow for law enforcement 
access and its timely decryption, pursuant to lawful 
authorization (court-authorized wiretaps or court-authorized 
search and seizure); and
    Whereas, law enforcement fully supports a balanced 
encryption policy that satisfies both the commercial needs of 
industry for robust encryption while at the same time 
satisfying law enforcement's public safety needs; and
    Whereas, law enforcement has found that robust key-escrow 
encryption is clearly the best way, and perhaps the only way, 
to achieve both the goals of industry and law enforcement; and
    Whereas, government representatives have been working with 
industry to encourage the voluntary development, sale, and use 
of key-escrow encryption in its pursuit of a balanced 
encryption policy: Now, therefore, be it
    Resolved, that the International Association of Chiefs of 
Police, duly assembled at its 103rd annual conference in 
Phoenix, Arizona supports and encourages the development and 
adoption of a key-escrow encryption policy, which we believe 
represents a policy that appropriately addresses both the 
commercial needs of industry while at the same time satisfying 
law enforcement's public safety needs and that we oppose any 
efforts, legislatively or otherwise, that would undercut the 
adoption of such a balanced encryption policy.
                                ------                                

                             National Sheriffs' Association
                                          Chiefs of Police,

                               Resolution

                 digital telecommunications encryption

    Whereas, the introduction of digitally-based 
telecommunications technologies as well as the widespread use 
of computers and computer networks having encryption 
capabilities are facilitating the development and production of 
affordable and robust encryption products for private sector 
use: and
    Whereas, on one hand, encryption is extremely beneficial 
when used legitimately to protect commercially sensitive 
information and communications. On the other hand, the 
potential use of such encryption products by a vast array of 
criminals and terrorists to conceal their criminal 
communications and information from law enforcement poses an 
extremely serious threat to public safety; and
    Whereas, the law enforcement community is extremely 
concerned about the serious threat posed by the use of robust 
encryption products that do not allow for court authorized law 
enforcement access and its timely decryption, pursuant to 
lawful authorization; and
    Whereas, law enforcement fully supports a balanced 
encryption policy that satisfies both the commercial needs of 
industry for robust encryption while at the same time 
satisfying law enforcement's public safety needs; and
    Whereas, law enforcement has found that robust key-escrow 
encryption is clearly the best way, and perhaps the only way, 
to achieve both the goals of industry and law enforcement; and
    Whereas, government representatives have been working with 
industry to encourage the voluntary development, sale and use 
of key-escrow encryption in its pursuit of a balanced 
encryption policy; and therefore, be it
    Resolved That the National Sheriffs' Association supports 
and encourages the development and adoption of a key-escrow 
encryption policy which we believe represents a policy that 
appropriately addresses both the commercial needs of industry 
while at the same time satisfying law enforcement's public 
safety needs and that we oppose any efforts, legislatively or 
otherwise, that would undercut the adoption of such a balanced 
encryption policy.
                                ------                                




                           Imperial County Sheriff,
                                          Coroner's Office,
                                    El Centro, CA, August 26, 1997.
Re Key recovery of encrypted data.

Hon. Porter J. Goss,
Chairman, Permanent Select Committee on Intelligence, Washington, DC.
    Dear Chairman Goss: I join my associates in Federal law 
enforcement, as well as the International Association of Chiefs 
of Police, the National Sheriff's Association, and the National 
District Attorney's Association, in urging you to make 
provisions for key recovery of encrypted data. Both of you and 
your Committee are familiar with the technology and the issues, 
and I won't waste your time or attention in a lengthy discourse 
on what encryption or key recovery is. You know as much about 
the technology as I do.
    Of particular interest to me is the ability of 
international drug cartels to thwart legitimate, court-
sanctioned interception of criminal communications here along 
the border. Drug trafficking organizations are sophisticated, 
aggressive, and well-funded. They certainly are taking 
advantage today of encryption technology in our own country. 
Without provisions for key recovery, it will be virtually 
impossible for law enforcement to conduct criminal 
investigations of telecommunications activity or electronic 
data files. A simple solution is to require a provision in 
trade agreements which requires a trustworthy key agent to 
maintain the key to encrypted data. Such a requirement would 
still allow legitimate safeguarding of data, but would also 
allow law enforcement to crack coded information in criminal 
investigations and national security matters.
    I would be pleased to discuss this vital matter with you 
and I will be appreciative of any consideration you may give 
this issue.
            Sincerely,
                                      Oren R. Fox, Sheriff-Coroner.