For the second time in a week, a House committee has made significant changes to the Security and Freedom through Encryption (SAFE) Act to mandate that domestic encryption products give law enforcement agencies access to users' messages.
The changes by the Intelligence Committee, which were passed as a "substitute" to SAFE, turn the legislation on its head. The amendment follows similar changes two days ago in the House National Security Committee.
Initially drafted as a way to loosen U.S. export controls on encryption, legislators have instead "marked up" the bill, or amended it at the committee level, to reflect the wishes of the Federal Bureau of Investigation and other law enforcement agencies that want "wiretap" access to all encrypted email and other digital files.
Both the Intelligence and the National Security committees tend to favor export controls, because they view encryption as a threat to information-gathering activities by U.S. military and law enforcement officials.
The Intelligence Committee cited those concerns today when announcing the substitute legislation. "Terrorist groups...drug cartels...and those who proliferate in deadly chemical and biological weapons are all formidable opponents of peace and security in the global society," said committee chairman Porter Goss (R-Florida) in a statement. "These bad actors must know that the U.S. law enforcement and national security agencies, working under proper oversight, will have the tools to frustrate illegal and deadly activity and bring international criminals to justice."
Opponents of government attempts to regulate encryption, including a leading panel of cryptographers, have argued that built-in access to encrypted files would in fact threaten national and individual security and be prohibitively expensive to implement.
The amended legislation calls for all imported or U.S.-made encryption products that are manufactured or distributed after January 31, 2000, to provide "immediate access" to the decrypted text if the law officials present a court order. "Law enforcement will specifically be required to obtain a separate court order to have the data, including communications, decrypted."
A markup of the same bill in the House Commerce Committee was postponed today for two weeks. It will be the fifth such committee vote on the bill since its introduction.
The Intelligence and National Security amendments this week are by no means a defeat of the bill. Instead, they would have to be reconciled with versions of the bill already approved by the House Judiciary and International Relations committees. That reconciliation most likely would have to happen on the House floor. The rapidly fragmenting bill still has several layers of procedure to wend through before it reaches a potential floor vote, but people on both sides of the encryption debate openly question if the bill--in any form--will make it that far this year.
The legislation has 252 cosponsors, more than half of the House membership.