Internet Privacy Coalition to Rep. Goodlatte
April 28, 1997
The Hon. Robert W. Goodlatte
Committee on the Judiciary
U.S. House of Representatives
2138 Rayburn House Office Building
Washington, DC 20515
Re: H.R. 695, The SAFE Act
Dear Representative Goodlatte:
We, the undersigned members of the Internet Privacy
Coalition, write to you regarding the Security and Freedom
Through Encryption (SAFE) Act (H.R. 695), the pending
legislation that you have introduced to reform U.S. encryption
policy. We first wish to express our strong support for your
efforts to make available better encryption products to American
citizens and users of the Internet around the world. We believe
that the widespread availability of such products will be
critical for our nation's continued leadership of the
information industry and the protection of personal privacy.
The pending bill provides a positive framework for the
reforms that are long overdue in this critical area. It makes
clear that the sale or use of encryption, a vital technique to
promote network security and individual privacy, should not be
restricted in the United States. This is the view widely shared
by users of the Internet and the computer and communications
industry. It was also a central recommendation of the report of
the National Research Council last year.
While expressing our support for the measure, we wish also
to state our concern about one provision contained in the bill.
We believe that this provision, which would create new criminal
penalties for the use of encryption in furtherance of a crime,
could undermine the otherwise laudable goals of the legislation.
For the reasons set forth below, we recommend that this
provision be reconsidered when the Committee considers the bill.
As currently drafted, H.R. 695 would establish a new
offense for the use of encryption "in furtherance of the
commission of a criminal offense." While well-intended, the
provision could have a series of unintended consequences that
would easily undermine the other desirable features of the bill.
First, we believe it is a mistake to create criminal
penalties for the use of a particular technique or device. Such
a provision tends to draw attention away from the underlying
criminal act and casts a shadow over a valuable technology that
should not be criminalized. It may, for instance, be the case
that a typewritten ransom note poses a more difficult challenge
for forensic investigators than a handwritten note. But it
would be a mistake to criminalize the use of a typewriter simply
because it could make it more difficult to investigate crime in
some circumstances.
Second, a provision which criminalizes the use of
encryption, even in furtherance of a crime, would give
prosecutors wide latitude to investigate activity where the only
indicia of criminal conduct may be the mere presence of
encrypted data. In the digital age, where techniques to protect
privacy and security will be widely deployed, we cannot afford
to view encryption as the instrumentality of a crime, just as we
would not view the use of a typewriter in the current era.
Finally, the provision could also operate as a substantial
disincentive to the widespread adoption of strong encryption
techniques in the communications infrastructure. Recognizing,
as the National Research Council has, that the availability of
strong encryption is one of the best ways to reduce the risk of
crime and to promote public safety, the retention of this
provision in the legislation will send a mixed message to users
and businesses -- that we want people to be free to use
encryption but will be suspicious when it is used.
If the concern is that encryption techniques may be used to
obstruct access to evidence relevant to criminal investigations,
we submit that the better approach may be, to the extent
allowed by the Constitution, to rely on other provisions in the
federal and state criminal codes (including sections relating
to obstruction of justice or concealment) to address this
problem if it arises.
We thank you for your leadership on this important issue
and appreciate your consideration of our views.
Respectfully,
Donald Haines, Legislative Counsel
American Civil Liberties Union
James Lucier, Director of Economic Research
Americans for Tax Reform
Barbara Simons, Chair
Association for Computing, U.S. Public
Policy Committee (USACM)
Chris Prokop, Chief Executive Officer
BitWrench, Incorporated
Jerry Berman, Executive Director
Center for Democracy and Technology
Jeffrey Chester, Executive Director
Center for Media Education
Marlo Lewis, Jr., Vice President for Policy
Competitive Enterprise Institute
Aki Namioka, President
Computer Professionals for Social Responsibility
Stephen D. Crocker, Chief Technology Officer
CyberCash, Inc.
Phyllis Schlafly, President
Eagle Forum
Lori Fena, Executive Director
Electronic Frontier Foundation
Marc Rotenberg, Director
Electronic Privacy Information Center
Jeff Taylor, Executive Director
Frontiers of Freedom
Conrad Martin, Executive Director
Fund for Constitutional Government
Paul Kostek, Vice Chair, IEEE-USA USA Board
Institute of Electrical & Electronics Engineers -
United States Activities (IEEE-USA)
Paul E. Hoffman, Director
Internet Mail Consortium
Donald Heath, Executive Director
Internet Society
Jack King, Director of Public Affairs
National Association of Criminal Defense Lawyers
Kit Gage, Washington Representative
National Committee Against Repressive Legislation
Audrie Krause, Executive Director
NetAction
Kelly Huebner Blough, Director of Government Relations
Pretty Good Privacy, Inc.
Simon Davies, Director General
Privacy International
Evan Hendricks, Chair
U.S. Privacy Council
Shabbir J. Safdar, Co-Founder
Voters Telecommunications Watch
Todd Lappin, Section Editor
Wired Magazine
cc: Members of the Subcommittee on Courts & Intellectual
Property, House Committee on the Judiciary
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