105TH CONGRESS
Here is the UNOFFICIAL text of the Markey amendment, which was supported by Reps. Rick White (R-WA), Rick Boucher (D-VA), Anna Eshoo (D-CA), Brian Bilbray (R-CA) and Steve Largent (R-OK). The Committee staff has the authority to correct the section numbers and make other "technical and conforming changes." The final amendment will be posted on the Commerce Committee website, possibly as early as Thursday morning (9/25).
Plus, remember that this is an amendment to the Tauzin amendment, so there is some additional text that was adopted by the committee that is not here. But everything that follows was adopted and reported by the full House Commerce Committee on Wednesday September 24:
Amendment Offered by Mr. Markey of Massachusetts
to the Amendment in the Nature of
a Substitute Offered by Mr. Tauzin
[NET Center; study; doubling of criminal penalties]
(Page & line nos. refer to Committee Print of 9/9/97)
Page 2 of the amendment, strike line 6 and all that follows through
page 7, line 6, and insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the "Security and Freedom Through Encryption
(SAFE) Act".
SEC. 2. SALE AND USE OF ENCRYPTION.
(a) IN GENERAL. Part I of title 18, United States Code, is amended by
inserting after chapter 123 the following new chapter:
CHAPTER 125-ENCRYPTED WIRE AND ELECTRONIC INFORMATION
"2801. Definitions.
"2802. Freedom To Use Encryption.
"2803. Freedom To Sell Encryption.
"2804. Prohibition on mandatory key escrow.
"2805. Unlawful use of encryption in furtherance of a criminal act.
"¤2801. Definitions
"As used in this chapter --
"(1) the terms 'person', 'State', 'wire communications, electronic
communication', 'investigate or law
enforcement officer', 'judge of competent jurisdiction', and
'electronic storage' have the meanings given those terms in
section 2510 of this title;
"(2) the terms 'encrypt' and 'encryption' refer to the scrambling of
wire or electronic information using mathematical formulas
or algorithms in order to preserve the confidentiality,
integrity, or authenticity of, and prevent unauthorized
recipients from accessing or altering, such communications;
"(3) the term 'key' means the variable information used in a
mathematical formula, code, or algorithm, or any component
thereof, used to decrypt wire or electronic communications
that have been encrypted; and
"(4) the term 'United States person' means -
"(A) any United States citizen;
"(B) any other person organized under the laws of any State,
the District of Columbia, or any
commonwealth, territory, or possession of the United States; 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).
"¤2802. Assistance for law enforcment
"(a) NATIONAL ELECTRONIC TECHNOLOGIES CENTER. --
"(1) ESTABLISHMENT. -- There is established in the Department of
Justice a National Electronic Technologies Center (In this subsection
referred to as the 'NET Center').
"(2) DIRECTOR. -- The NET Center shall have a Director, who shall
be appointed by the Attorney General.
"(3) DUTIES. -- The duties of the NET Center shall be --
"(A) to serve as a center for Federal, State, and local law
enforcement authorities for information and assistance regarding
decryption and other access requirements;
"(B) to serve as a center for industry and government
entities to exchange information and methodology regarding
information security techniques and technologies;
"(C) to examine encryption techniques and methods to
facilitate the ability of law enforcement to gain efficient
access to plaintex of communications and electronic information;
"(D) to conduct research to develop efficient methods and
improve the efficiency of existing methods, of accessing
plaintext of communications and electronic information;
"(E) to investigate and research new and emerging techniques
and technologies to facilitate access to communications and
electronic information, including --
"(i) reverse-steganography;
"(ii) decompression of information that previously has
been compressed for transmission; and
"(iii) de-multiplexing; and
"(F) to obtain information regarding the most current
hardware, software, telecommunications, and other capabilities
to understand how to access information transmitted across
networks.
"(4) EQUAL ACCESS. - State and local law enforcement agencies and
authorities shall have access to information, services, resources, and
assistance provided by the NET Center to the same extent that Federal
law enforcement agencies and authorities have such access.
"(5) PERSONNEL. -- The Director may appoint such personnel as the
Director considers appropriate to carry out the duties of the NET
Center.
"(6) ASSISTANCE OF OTHER FEDERAL AGENCIES. -- Upon request of the
Director of the NET Center, the head of any department or agency of
the Federal Government may, to assist the NET Center in carrying out
its duties under this subsection --
"(A) detail, on a reimbursable basis, any of the personnel
of such department or agency to the NET Center; and
"(B) provide to the NET Center such facilities,
information, and other non-personnel resources.
"(7) PRIVATE INDUSTRY ASSISTANCE. -- The NET Center may accept,
use, and dispose of gifts, bequests, or devises of money, services, or
property, both real and personal, for the purpose of aiding or
facilitating the work of the Center. Gifts, bequests, or devises of
money and proceeds from sales of other property received as gifts,
bequests, or devises shall be deposited in the Treasury and shall be
available for disbursement upon order of the Director of the NET
Center.
"(8) ADVISORY BOARD. --
"(A) ESTABLISHMENT. -- There is established the Advisory
Board of the Strategic NET Center for Excellence in Information
Security (in this paragraph referred to as the 'Advisory
Board'), which shall be comprised of members who have the
qualifications described in subparagraph (B) and who are
appointed by the Attorney General. The Attorney General shall
appoint a chairman of the Advisory Board.
"(B) QUALIFICATIONS. -- Each member of the Advisory Board
shall have experience or expertise in the field of encryption,
decryption, electronic communication, information security, or
electronic commerce, or in the field of law enforcement.
"(C) DUTIES. -- The duty of the Advisory Board shall be to
advise the NET Center and the Federal Government regarding new
and emerging technologies relating to encryption and decryption
of communications and electronic information.
"(9) IMPLEMENTATION PLAN. -- Within 2 months after the date of
enactment of the Security and Freedom Through Encryption (SAFE) Act,
the Attorney General shall, in consultation and cooperation with other
appropriate Federal agencies and appropriate industry participants,
develop and cause to be published in the Federal Register a plan for
establishing the NET Center. The plan shall --
"(A) specify the physical location of the NET Center and
the equipment, software, and personnel resources necessary to
carry out the duties of the NET Center under this subsection;
"(B) assess the amount of funding necessary to establish
and operate the NET Center; and
"(C) identify sources of probable funding for the NET
Center, including any sources of in-kind contributions from
private industry.
"(b) FREEDOM OF USE. Subject to section 2805, it shall be lawful for any
person within any State, and for any United States person in a foreign
country, to use any encryption, regardless of the encryption algorithm
selected, encryption key length chosen, or implementation technique or
medium used. No Federal or State law or regulation may condition the
issuance of certificates of authentication or certificates of authority for
any encryption product upon any escrowing or other sharing of private
encryption keys, whether with private agents or government entities, or
establish a licensing, labeling, or other regulatory scheme for any
encryption product that requires key escrow as a condition of licensing or
regulatory approval.
"(c) STUDY. -- Within 6 months after the date of the enactment of the
Security and Freedom Through Encryption (SAFE) Act, the National
Telecommunications and Information Administration shall conduct a study,
and prepare and submit to the Congress and the President a report regarding
such study, that --
"(1) assesses the effect that establishment of a mandatory system
for recovery of encryption keys for encrypted communications and
information would have on --
"(A) electronic commerce;
"(B) data security;
"(C) privacy in interstate commerce; and
"(D) law enforcement authorities and activities; and
"(2) assesses other possible methods for providing access to
encrypted communications and information to further law enforcement
activities.
"¤2803. Freedom to sell encryption
"Subject to section 2805, it shall be lawful for any person within any
State to sell in interstate commerce any encryption, regardless of the
encryption algorithm selected encryption key length chosen, or
implementation technique or medium used.
"¤2804. Prohibition on mandatory key escrow
"(a) PROHIBITION. -- No person in lawful possession of a key to encrypted
information may be required by Federal or State law to relinquish to
another person control of that key.
"(b) EXCEPTION FOR ACCESS FOR LAW ENFORCEMENT PURPOSES.-Subsection (a)
shall not affect the authority of any investigative or law enforcement
officer, under any law in effect on the effective date of this chapter, to
gain access to a key to encrypted information.
Page 7 of the amendment, line 17, strike "5 years" and insert "10 years".
Page 7 of the amendment, line 22, strike "10 years" and insert "20 years".
Page 7 of the amendment, after line 23, insert the following:
"¤2805. Liability limitations
"No person shall be subject to civil or criminal liability for
providing access to the plaintext of encrypted communications or electronic
information to any law enforcement official or authorized government
entity, pursuant to judicial process."
Page 8 of the amendment, after line 2 insert :
SEC. 3. EXPORTS OF ENCRYPTION.
(a) AMENDMENT TO EXPORT ADMINISTRATION ACT OF 1979. -- Section 17 of the
Export Administration Act of 1979
(50 U.S.C. App. 2416) is amended by adding at the end thereof the following
new subsection:
"(g) COMPUTERS AND RELATED EQUIPMENT. --
"(1) GENERAL RULE.--Subject to paragraphs (2), (3), and (4), the
Secretary shall have exclusive authority to control exports of all computer
hard ware, software, and technology for information security (including
encryption), except that which is specifically designed, or modified for
military use, including command, control, and intelligence applications.
"(2) ITEMS NOT REQUIRING LICENSES. -- No validated license may be
required, except pursuant to the Trading With the Enemy Act or the
International Emergency Economic Powers Act (but only to the extent that
the authority of such Act is not exercised to extend controls imposed under
this Act), for the export or reexport of--
"(A) any software, including software with encryption
capabilities --
"(i) that is generally available, as is, and is
designed for installation by the purchaser; or
"(ii) that is in the public domain for which copyright
or other protection is not available under title 17, United States Code, or
that is available to the public because it is generally accessible to the
interested public in any form; or
"(B) any computing device solely because it incorporates or
employs in any form software (including software with encryption
capabilities) exempted from any - requirement for a validated license under
subparagraph (A).
"(3) SOFTWARE WITH ENCRYPTION CAPABILITIES. -- The Secretary shall
authorize the export or
reexport of software with encryption capabilities for nonmilitary
end-uses in any country to which exports of
software of similar capability are permitted for use by financial
institutions not controlled in fact by United
States persons, unless there is substantial evidence that such
software will be --
"(A) diverted to a military end-use or an end-use supporting
international terrorism;
"(B) modified for military or terrorist end-use; or
"(C) reexported without any authorization by the United
States that may be required under this Act.
"(4) HARDWARE WITH ENCRYPTION CAPABILITIES. -- The Secretary shall
authorize the export or
reexport of computer hardware with encryption capabilities if the
Secretary determines that a product offering
comparable security is commercially available outside the United
States from a foreign supplier, without
effective restrictions.
"(5) DEFINITIONS. -- As used in this subsection --
"(A) the term 'encryption' means the scrambling of wire or
electronic information using mathematical formulas
or algorithms in order to preserve the confidentiality, integrity,
or authenticity of, and prevent unauthorized
recipients from accessing or altering, such information;
"(B) the term 'generally available' means, in the case of software
(including software with encryption
capabilities), software that is offered for sale, license, or
transfer to any person without restriction, whether or
not for consideration, including, but not limited to,
over-the-counter retail sales, mail order transactions,
phone order transactions, electronic distribution, or sale on approval;
"(C) the term 'as is' means, in the case of software (including
software with encryption capabilities), a
software program that is not designed, developed, or tailored by the
software publisher for specific
purchasers, except that such purchasers may supply certain
installation parameters needed by the software
program to function properly with the purchaser's system and may
customize the software program by
choosing among options contained in the software program;
"(D) the term 'is designed for installation by the purchaser' means,
in the case of software (including software
with encryption capabilities) that --
"(i) the software publisher intends for the purchaser
(including any licensee or transferee),
who may not be the actual program user, to install the
software program on a computing
device and has supplied the necessary instructions to do so,
except that the publisher may
also provide telephone help line services for software
installation, electronic transmission, or
basic operations; and --
"(ii) the software program is designed for installation by
the purchaser without further
substantial support by the supplier;
"(E) the term 'computing device' means a device which incorporates
one or more microprocessor based
central processing units that can accept, store, process or provide
output of data; and
"(F) the term 'computer hardware', when used in conjunction with
information security, includes, but is not
limited to, computer systems, equipment,
application-specific assemblies, modules, and integrated circuits".
(b) CONTINUATION OF EXPORT ADMINISTRATION ACT.-For purposes of carrying out
the amendment made by subsection (a), the Export Administration Act of 1979
shall be deemed to be in effect.