105th Congress: Democratic Perspectives House Committee on Energy and Commerce Democrats Welcome Page
Historically, encryption was used almost exclusively by the military and intelligence communities to protect secrets of defense and national security. But in the Information Age, businesses and consumers need a way to secure valuable trade and financial information that increasingly flows through wires and over the air.
H.R. 695 attempts to accomplish these important goals by bringing export law in line with current domestic encryption policy. Unfortunately, such a change in the law does not come without a cost. While strong encryption can make interstate and foreign commerce more secure, its unrestricted use can make national security and law enforcement less so.
It is clear that widespread use of unbreakable encryption poses serious problems for law enforcement in carrying out its duty to protect the public. Even in the post-Cold War era, the wars against international terrorism, drug cartels, and violations of human rights continue.
The law enforcement community advocates the use of key recovery systems on strong encryption products. Unfortunately, these systems will work only if everybody uses them, including sophisticated criminals. And we know that there will continue to be a proliferation of encryption products available around the world without key recovery systems, regardless of U.S. government law or policy.
I am not convinced that the law enforcement approach will solve the problem the authorities correctly identify. But until a better solution is proposed that both protects the public against terrorism and removes barriers to the growth of electronic commerce around the world, I strongly believe it is in the public interest to err on the side of caution.
This bill adopts the approach preferred by business and privacy advocates which, unfortunately, also contains flaws. Removing all government controls over encryption is tantamount to sending our troops to war without necessary arms or protective gear. The committee attempted to balance the important competing interests at stake, but failed to find the elusive middle ground. H.R. 695, as amended by this committee, simply adds window dressing in the form of a technology lab. This begs more questions than it answers.
The American public has no assurance that a technology lab will be effective in providing law enforcement with the tools necessary to protect them. Without possessing a key to encrypted messages, the only way to unlock the door is through brute force. A brute force attack on today's encryption products requires both enormous computing power and a good deal of time. Law enforcement authorities possess neither luxury when confronted with an imminent, real-time threat to public safety. A technology lab will not change that reality.
Some producers of encryption products have offered informally to provide the lab with technical assistance and perhaps some amount of private funding. But we have no specific commitment with regard to either offer, nor can we be sure that any such contribution would be sufficient to achieve the lab's purpose. The industry has specifically rejected the notion of providing source code for its encryption products to the lab, which is arguably the best hope for giving law enforcement a leg up on cracking these codes without a key.
I appreciate that these issues have been the subject of intense debate for more than four years by government, industry, individual citizens, and academia alike. To date, no effective solution has been found. But the difficulty of the task does not mean that we should conduct the legislative equivalent of a coin toss. The simple fact that four other committees have reported this bill in such radically different forms should be evidence enough that while this issue may be ripe, the solution certainly is not.
In my judgment, this bill is not ready for prime time. More work needs to be done. I urge all committees that have reported versions of this bill and the bipartisan leadership to continue working with industry and law enforcement to find an effective and balanced solution before this bill reaches the floor for consideration.
John D. Dingell
105th Congress: Democratic Perspectives
House Committee on Energy and Commerce Democrats Welcome Page