```

[Senate Hearing 106-892]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 106-892

S. 798, THE PROMOTE RELIABLE ON-LINE TRANSACTIONS TO ENCOURAGE COMMERCE 
                    AND TRADE (PROTECT) ACT OF 1999

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 10, 1999

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation

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                            WASHINGTON : 2002

____________________________________________________________________________
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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                     JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana                DANIEL K. INOUYE, Hawaii
SLADE GORTON, Washington             JOHN D. ROCKEFELLER IV, West 
TRENT LOTT, Mississippi                  Virginia
KAY BAILEY HUTCHISON, Texas          JOHN F. KERRY, Massachusetts
OLYMPIA J. SNOWE, Maine              JOHN B. BREAUX, Louisiana
JOHN ASHCROFT, Missouri              RICHARD H. BRYAN, Nevada
BILL FRIST, Tennessee                BYRON L. DORGAN, North Dakota
SPENCER ABRAHAM, Michigan            RON WYDEN, Oregon
SAM BROWNBACK, Kansas                MAX CLELAND, Georgia
                       Mark Buse, Staff Director
                  Martha P. Allbright, General Counsel
     Ivan A. Schlager, Democratic Chief Counsel and Staff Director
               Kevin D. Kayes, Democratic General Counsel

  
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held June 10, 1999.......................................     1
Statement of Senator Ashcroft....................................     6
Statement of Senator Burns.......................................     1
    Prepared statement...........................................     2
Statement of Senator Cleland.....................................    39
Statement of Senator Dorgan......................................    42
Statement of Senator Frist.......................................    42
Statement of Senator Kerry.......................................     3
    Article from New York Times..................................     4
Statement of Senator Snowe.......................................    16
    Prepared statement...........................................    16

                               Witnesses

Aucsmith, David, Chief Security Architect, Intel Corporation.....    45
    Prepared statement...........................................    47
Bidzos, D. James, Vice Chair, Security Dynamics Technologies, 
  Inc............................................................    60
    Prepared statement...........................................    62
Goodlatte, Bob, U.S. Representative from Virginia, along with 
  added material for the record; China: Export of Technology 
  Would be Liberating Force......................................     9
    Prepared statement...........................................    14
Hoffman, Lance, Ph.D., Professor, Department of Electrical 
  Engineering and Computer Science, and Director of the School of 
  Engineering and Applied Science, Cyberspace Policy Institute, 
  The George Washington University,..............................    71
    Prepared statement...........................................    72
McNamara, Barbara A., Deputy Director, National Security Agency..    30
    Prepared statement...........................................    32
Reinsch, Hon. William A., Under Secretary of Export 
  Administration, U.S. Department of Commerce....................    17
    Prepared statement...........................................    20
Robinson, Hon. James K., Assistant Attorney General, Criminal 
  Division, U.S. Department of Justice...........................    24
    Prepared statement...........................................    27

 
S. 798, THE PROMOTE RELIABLE ON-LINE TRANSACTIONS TO ENCOURAGE COMMERCE 
                    AND TRADE (PROTECT) ACT OF 1999

                              ----------                              

                        THURSDAY, JUNE 10, 1999

                                       U.S. Senate,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:32 a.m. in room 
SR-253, Russell Senate Office Building, Hon. Conrad Burns 
presiding.
    Staff members assigned to this hearing: David Crane, 
Republican professional staff; and Gregg Elias, Democratic 
senior counsel.

            OPENING STATEMENT OF HON. CONRAD BURNS, 
                   U.S. SENATOR FROM MONTANA

    Senator Burns. We will call the committee to order this 
morning, and thank you for coming. We will try to get started 
on time here.
    Let me apologize for the chairman of the full committee, 
John McCain. He has a bill on the floor, the Y2K bill. I told 
him that he probably put the fox in charge of the henhouse here 
when he lets me chair this hearing, but it is something that I 
have been very much interested in for a long time.
    Today's hearing will focus specifically on the ``PROTECT 
Act of 1999.'' This bill reflects a number of discussions the 
full Committee chairman and I have had about the importance of 
encryption in the digital age. I would also like to thank 
Senator Wyden and Senator Abraham for their instrumental role 
in the creation of this pro-encryption legislation that I am 
confident will be supported by the large majority of this 
committee.
    Along with several other members of this committee, I have 
long advocated the enactment of legislation that would 
facilitate the use of strong encryption. Strong encryption is 
necessary if we are to promote electronic commerce, secure our 
confidential business and our sensitive personal information, 
to prevent crime and to protect our national security by 
protecting our commercial information systems.
    Beginning in the 104th Congress, I introduced legislation 
that would ensure the private sector continues to take the lead 
in developing innovative products to protect the security and 
confidentiality of electronic information, including the 
ability to export such American products, and I believe PROTECT 
accomplishes these important objectives. Specifically, the bill 
does the following:
    It permits the immediate exportability of strong encryption 
products whenever foreign products contain the same strength of 
encryption are generally available. It prohibits domestic 
controls on the use of products using strong encryption. It 
also guarantees that American industry will continue to be able 
to come up with new and innovative products.
    It immediately decontrols encryption products using key 
lengths of 64 bits or less. It permits the immediate 
exportability of 128-bit encryption in all encryption products 
to a broad group of users.
    Today we are in a world that nearly everyone has a computer 
and those computers are for the most part connected to one 
another. In light of that fact, it is becoming more and more 
important to ensure that our communications over these computer 
networks are conducted in a secure way.
    It is no longer possible to say that when we move into the 
information age we will secure these networks, because we are 
already there. We use computers in our homes and our businesses 
in ways that we could not imagine only 10 years ago. These 
computers are connected through networks, making it easier to 
communicate than ever before.
    This phenomenon holds promise for transforming life in a 
bunch of areas in our country and especially in Montana, where 
health care and state-of-the-art education can be delivered 
over networks to people located in remote population centers. 
These new technologies can improve the lives of real people, 
but only if the security of information that moves over these 
networks is safe and reliable.
    The problem today is that our computer networks are not as 
secure as they could be. It is fairly easy for amateur hackers 
to break into our networks. The newspaper has been full of 
those kind of activities for the last year. They can intercept 
information, steal trade secrets and intellectual property, or 
even alter medical records.
    The solution to this problem is to let individuals and 
businesses alike take steps to secure that information. 
Encryption is a vital tool which helps to protect the integrity 
of these electronic networks which have made so many modern 
wonders available in this age.
    I look forward to the testimony of our witnesses today 
because this is a critical issue.
    Now I would like to recognize the Senator from 
Massachusetts, Senator Kerry, and thank you for coming this 
morning.
    [The prepared statement of Senator Burns follows:]

   Prepared Statement of Hon. Conrad Burns, U.S. Senator from Montana

    I am pleased to chair today's hearing in the Full Committee, which 
is on a topic critical to the future of this country--reforming our 
country's severely outdated encryption policy. Today's hearing will 
focus specifically on the ``PROTECT Act of 1999.'' This bill reflects a 
number of discussions the Full Committee Chairman and I have had about 
the importance of encryption in the digital age. I would also like to 
thank Sen. Wyden and Sen. Abraham for their instrumental role in the 
creation of this pro-encryption legislation that I am confident will be 
supported by a large majority of this Committee.
    Along with several other members of this Committee, I have long 
advocated the enactment of legislation that would facilitate the use of 
strong encryption. Strong encryption is necessary to promote electronic 
commerce, secure our confidential business and sensitive personal 
information, prevent crime and protect our national security by 
protecting our commercial information systems. Beginning in the 104th 
Congress, I introduced legislation that would ensure that the private 
sector continues to take the lead in developing innovative products to 
protect the security and confidentiality of our electronic information 
including the ability to export such American products. I believe 
PROTECT accomplishes these important objectives.
    Specifically, the bill does the following:
     Permits the immediate exportability of strong encryption 
products whenever foreign products containing the same strength of 
encryption are generally available;
     Prohibits domestic controls on the use of products using 
strong encryption;
     Guarantees that American industry will continue to be able 
to come up with innovative products;
     Immediately decontrols encryption products using key 
lengths of 64 bits or less; and
     Permits the immediate exportability of 128 bit encryption 
in all encryption products to a broad group of users.
    Today, we are in a world where nearly everyone has a computer and 
that those computers are, for the most part, connected to one another. 
In light of that fact, it is becoming more and more important to ensure 
that our communications over these computer networks are conducted in a 
secure way. It is no longer possible to say that when we move into the 
information age, we'll secure these networks, because we are already 
there. We use computers in our homes and businesses in a way that 
couldn't have been imagined 10 years ago, and these computers are 
connected through networks, making it easier to communicate than ever 
before. This phenomenon holds the promise of transforming life in 
states like Montana, where health care and state-of-the-art education 
can be delivered over networks to people located far away from 
population centers. These new technologies can improve the lives of 
real people, but only if the security of information that moves over 
these networks is safe and reliable.
    The problem today is that our computer networks are not as secure 
as they could be. It is fairly easy for amateur hackers to break into 
our networks. Hackers can intercept information, steal trade secrets 
and intellectual property or even alter medical records. The solution 
to this problem is to let individuals and businesses alike to take 
steps to secure that information. Encryption is a vital tool which 
helps to protect the integrity of these electronic networks which have 
made so many wonders of the modern age possible.
    I look forward to the testimony of the witnesses on this critical 
issue.
    Thank you.

         STATEMENT OF HON. JOHN F. KERRY, U.S. SENATOR 
                       FROM MASSACHUSETTS

    Senator Kerry. Mr. Chairman, thank you very much for your 
continued efforts in this field.
    I want to say up front, I need to go from here to the 
export regime hearing in the Banking Committee, where we have 
Messrs. Cox and Dicks. So I apologize for not being able to 
stay throughout this, but my staff will.
    Let me begin by saying that last session the Commerce 
Committee became the first Senate committee to forge a 
consensus on this question of some kind, at least, and to 
report out comprehensive legislation. I am glad we are back 
here now and it is my hope that we can make real progress this 
year to develop a sensible encryption framework for the 21st 
century.
    We have been part of this debate for some time now. I serve 
on the Intelligence Committee, the Foreign Relations Committee, 
this committee, and the Banking Committee, all of which touch 
on it one way or the other. I am a former prosecutor, so I have 
been particularly sensitive to some of the warrant issues, 
eavesdropping issues, intelligence-gathering issues, and so 
forth.
    For the past several years, frankly, we have received 
relatively conflicting information from various interests in 
the debate, and I think, to our frustration, at least to my 
frustration, Mr. Chairman, we have been primarily debating the 
current state of export markets. We have debated whether there 
is a mature market abroad for export products and whether we 
can use regulatory controls to shape that market.
    I have adopted a relatively cautious approach, for a lot of 
very obvious reasons. I am sensitive to our national security 
needs and I have been very hopeful that the long and many 
discussions of the White House and various entities on this 
would retard the spread of encryption and actually shape market 
demand abroad.
    I have a change of mind at this point and I want to express 
that. I think it is time to reframe the debate on encryption. 
As time goes on and availability abroad of strong encryption 
products continues to grow, it becomes more and more difficult 
to accept that we alone can control the development of this 
marketplace. If we cannot shape the development of the 
marketplace and have not been able to reach an adequate 
consensus in this country to do so in the last few years, then 
we are forced to a point in time, which I think we are at now, 
where we have to examine in a responsible way how to adjust our 
regulatory regime.
    For a long time we have been debating, Mr. Chairman, 
whether to relax export controls to permit the export of 
stronger encryption products. I think that question has to 
change. It is now time to discuss how we go about creating a 
new scheme that recognizes the realities of the new 
marketplace.
    I ask unanimous consent that an article from today's New 
York Times, ``Encryption Products Found to Grow in Foreign 
Markets'' by John Markoff, be made part of the committee 
record.
    Senator Burns. Without objection.
    [The material referred to follows:]

                           THE NEW YORK TIMES

          ENCRYPTION PRODUCTS FOUND TO GROW IN FOREIGN MARKETS
                            BY JOHN MARKOFF

    Commercial data-scrambling technology that is made outside the 
United States has become significantly more available in the last 18 
months, according to researchers at George Washington University.
    The researchers' report, which is to be presented today in 
testimony before the Senate Commerce Committee, is part of a growing 
body of evidence suggesting that the Government's efforts to restrict 
the spread of ``strong encryption'' technology for secret electronic 
communications have largely failed.
    ``The Government must acknowledge that there are foreign produces, 
and it must concede that they are of comparable quality to U.S. 
technology,'' said Bruce Heiman, legislative counsel for Americans for 
Computer Privacy, the Washington-based computer industry lobbying group 
that financed the study.
    The Government has long imposed export curbs on encryption 
tecnologies, invoking national security and crime prevention concerns. 
Officials have argued that scrambled messages would improve the ability 
of terrorists and other criminals to organize and plan illegal 
operations.
    The new data, though, indicate that 805 encryption products are now 
available in 35 countries outside the United States--a 22 percent 
increase since December 1997. Moreover, 167 products are based on 
encryption algorithms considered too strong to be cracked by even the 
most powerful computers.
    ``In addition to the absolute increase in the number of products, 
we've also found that six new countries have companies that are now 
selling encryption technology,'' said Lance Hoffman, director of the 
Cyberspace Policy Institute at George Washington University.
     He pointed to companies like Cybernetica in Estonia that use the 
United States export restrictions as a marketing tool.
    ``Cybernetica advertises: `Strong crypto. Long keys. No export 
restrictions,''' he said.
    The report also asserts that the United States has lost its 
monopoly on the basic mathematical technologies underlying data 
encryption.
    For example, of the 15 algorithms now being considered by the 
National Institute of Standards for a new American encryption standard, 
10 have been developed outside the United States.
    The report does not offer evidence of actual use of encryption 
systems abroad. But Mr. Hoffman said researchers had compiled material 
suggesting that the most powerful encryption software was now readily 
accessible internationally.
    ``I'm holding in my hands a computer magazine we found on a French 
newsstand,'' he said in a phone interview yesterday. The publication, 
Magazine Dot Net, contained a CD-ROM with encryption programs including 
Pretty Good Privacy and a program called Scramdisk that features 
advanced encryption algorithms like DES, Triple DES, Blowfish and 
Idea--any of which would present formidable challenges to code breakers 
in the Federal Government.

http://www.nytimes.com

    Senator Kerry. Let me just share very quickly. The new data 

indicates that 805 encryption products are now available in 35 
countries outside the United States, a 22 percent increase 
since December 1997. Moreover, 167 products are based on 
encryption algorithms considered too strong to be cracked by 
even the most powerful computers. In addition to the absolute 
increase in the number of products, we have also found that six 
new countries have companies that are now selling encryption 
technology.
    One of them, Cybernetica in Estonia, uses the U.S. export 
restrictions as a marketing tool: ``Cybernetica advertises 
`Strong crypto, long keys, no export restrictions.' '' The 
article goes on, Mr. Chairman.
    I am pleased to join Chairman McCain as an original co-
sponsor of the PROTECT Act of 1999. The bill is an important 
first step that recognizes that as the Internet becomes more of 
a presence in global commerce there have to be guarantees and 
assurances that business and personal information remains 
confidential.
    We have to also continue to recognize that U.S. companies 
are leaders in creating encryption technology and these 
companies are integral to our economy. We are debating a great 
deal now about the impact of China stealing secrets and where 
the long-term relationship may go. Mr. Chairman, I am 
persuaded, as I have been for several years, but I think for 
some time we have held out hope about our ability to control 
and shape the market. I am persuaded that the national security 
interest of the country is not only affected by the sort of law 
enforcement/security side of this, but it is also affected by 
the long-term economic side of it.
    It seems to me that it is important for U.S. technology to 
be out there, for people to be using it, and that there are 
certain security values inherent in that happening.
    The U.S. information technology companies have been deeply 
frustrated by what they perceive as excessive stringent 
controls on the export of their encryption products. Although 
the United States is the leader in producing high quality 
strong encryption products, other countries are increasingly 
doing so. We have to recognize that reality and understand that 
export controls are not going to stop the spread of encrypted 
products and, importantly, controls that do not recognize this 
reality put our software industry at a disadvantage as it tries 
to compete in the global marketplace and has the potential to 
put our security at risk.
    Encryption is essential to hundreds of billions of dollars 
of e-commerce. It is crucial to electronically transferred 
funds and to overall use of the Internet, including e-mail, and 
the United States must have a powerful presence in that future 
development.
    So I am open to arguments regarding whether we expand them 
even further than the PROTECT Act, but I believe that is an 
important first step and I am hopeful we can find a responsible 
approach that would allow us to balance some of the other 
interests.
    I would simply ask witnesses to perhaps--I am sure they 
will be asked this and address it: What happens with respect to 
foreign companies filling the gap and what the relationship of 
that is to our national security if foreign encryption is 
produced worldwide and we are outside of that loop?; and also 
whether it makes sense for our policy to work in a way that is 
increasingly putting the United States' interests within the 
field of commerce at a disadvantage.
    Also, there are other articles regarding other types, the 
Quantum code and other approaches to encryption, which raise a 
whole lot of issues about where we may be heading in the long 
run here and what we can control in terms of the market.
    So Mr. Chairman, I think we are at a very important 
juncture and I thank you for having this hearing today and 
proceeding forward.
    Senator Burns. Thank you. We always like conversions.
    Senator Kerry. Beware of the convert. The zeal of the 
convert is always the worst.
    Senator Burns. I know.
    Senator, I appreciate your words today and I think as far 
back as 1994 and 1995, where we had security questions.
    Before I recognize Senator Ashcroft, I want to make it 
pretty clear that we should be as policymakers giving our 
security people the funds and resources that their technology 
can stay maybe a quarter step ahead of the technology that is 
generally accepted around the world. I think there we have 
fallen down a little bit.
    But I think our security people can do the job that they 
are paid to do and do a great job of it, but we have got to 
give them the funds in order for them to adapt, to go into new 
technology, because Moore's Law has taken over here. Our 
technology is going to go. We have got to make sure that we 
take care of our security people and they can stay with it. 
That is where we should be focusing our attention, I think.
    Senator Ashcroft.

               STATEMENT OF HON. JOHN ASHCROFT, 
                   U.S. SENATOR FROM MISSOURI

    Senator Ashcroft. Thank you, Mr. Chairman. I want to thank 
the Senator from Montana for his leadership in this area. 
Leadership is not finding out where people already are and 
going and standing at the front of the line. Leadership is 
finding out where we need to go and helping people understand 
how to get there, and certainly you have done that, especially 
as it relates to this issue.
    I want to thank the chairman of this committee for having 
this hearing today to address an issue that I believe is 
central to the future of our country's ability to remain a 
worldwide leader in electronic technology. That is the 
development and the availability of data encryption technology.
    Encryption of sensitive electronic data is essential to our 
modern economy. State and national infrastructures, financial 
transactions, and of course the burgeoning field of Internet 
commerce all depend on the ability of companies, institutions, 
and individuals to securely transmit electronic data, and 
American products are at the forefront of this industry.
    I might add that if American products are not at the 
forefront of this industry, other products will be at the 
forefront of this industry.
    For years now, since before I first came to the Capitol, 
American manufacturers of encryption technology have been 
hamstrung in their efforts to compete in the global marketplace 
regarding these products by export controls that reflect a 
complete misunderstanding of the incredibly dynamic and fluid 
nature of encryption technology. We have tried for over 4 years 
to remedy that situation.
    I first introduced the E-PRIVACY bill in the last Congress 
and intend to reintroduce it shortly in this Congress. But 
unfortunately, nothing has been accomplished by way of 
assistance to law enforcement and to industry or, most 
importantly, to the users of encryption in this country.
    Unfortunately, a significant barrier to progress on this 
issue has been the Administration, which has taken an active 
and open position against permitting the export of encryption 
technology and indeed a fairly hostile view to the unregulated 
domestic use of encryption. The Administration bases its 
position on the grounds that robust encryption allegedly 
presents risks to law enforcement and national security, a view 
that I think will be shown to be mistaken by today's testimony. 
We certainly have endured national security risks, but it has 
not been from the industry's development of encryption.
    In addition, there has not always been agreement here in 
Congress about the need to free our technology industry from 
these export restrictions. I am happy to note that this appears 
to have changed. The chairman's PROTECT Act which we are here 
to discuss, demonstrates that there is a growing consensus that 
the Administration is mistaken and that deregulation of 
encryption is necessary in order for us to maintain our 
leadership position in this industry, and I want to commend the 
chairman for helping us to build that consensus.
    I think that the PROTECT Act is a big step in the right 
direction on encryption. In fact, it shares many of the same 
principles and provisions included in my E-PRIVACY bill. 
However, I do think that the PROTECT Act needs to go further in 
two ways.
    First, the PROTECT Act needs to reflect the lightning-fast 
nature of development in this industry and institute export 
relief that will not make the products eligible for decontrol 
obsolete by the time the approval process is complete. The 
Administration has long taken the route of regulating 
encryption exports based on the bit length of the product, with 
little regard to the current state of the technology. It began 
with permitting the export of 40-bit technology 7 years ago and 
only agreed last fall to increase the limit to 56-bit 
technology. Of course, the standard for generally available 
products worldwide is already 128-bit technology. That is where 
the competition is. So the Administration's position is already 
sorely outdated.
    In fact, months ago I came to a meeting of this committee 
with an advertisement from the Internet which was from the 
Siemens company in Germany advertising robust 128-bit 
encryption, saying that you cannot get this from a U.S. 
manufacturer, at least someone overseas could not. The 
advertisement also indicated, however, that if you buy this you 
can use it in the United States and you can use it overseas as 
well. So if you want to have robust encryption, buy it from the 
Germans, from Siemens.
    The Administration has decided to tie the hands of the U.S. 
encryption industry. To me that is a disaster. But it is also 
compounded by people beginning to develop relationships with 
foreign software providers as a result of the unavailability of 
128-bit or robust encryption on the part of U.S. providers of 
software.
    To see the Germans eagerly promoting this potential and to 
have people from my own State of Missouri say to me, ``John, we 
have an office in Singapore''--this happened to me--we have not 
been able to speak with them confidentially and communicate 
with them and the government is making it impossible for us to 
send the encryption that we can use domestically. We cannot 
send it to our office in Singapore because we are ineligible to 
export it.
    I do not want that situation to be--well, I just do not 
want the situation to be such that I have to say, ``Well, go to 
Siemens in Germany, from Siemens you can buy the encryption 
that can be sent into the United States and from Siemens in 
Germany it can be sent to Singapore, so you can have your cake 
and eat it, too, by dealing with a non-domestic firm.''
    For us to have a policy which provides for the slitting of 
our own throats in a technology arena that is developing at a 
rapid pace is simply unwise. I think it is foolhardy. If we are 
to mark the next century as an American century, or even to 
celebrate the next week as high technology week in the Senate, 
we must be forward-
thinking and acting.
    The PROTECT Act deregulates products up to 64 bits. That is 
a good start. The problem is that the Act delays general 
decontrol of 128-bit technology until 2002, by which time it 
will almost certainly be as obsolete as 56-bit encryption is 
today. In the interim, PROTECT permits individual exceptions 
for higher bit technology export, but it creates a regulatory 
approval board and a process that can take up to 60 days to 
determine whether a product is already generally available, 
something that, quite frankly, can be determined by surfing the 
Internet for a little while, I mean moments.
    With all due respect, this process is too long, which is 
why in the E-PRIVACY bill we give the administration a one-time 
15-day review of products that are generally available before 
they are permitted to export them.
    I urge my colleagues to press our panelists on the second 
panel for answers on whether they can remain competitive if we 
wait as long as the PROTECT Act provides.
    The second area where I think the PROTECT Act can go 
farther is the explicit delineation of the rights and 
procedural protections of Americans in their ability to use 
encryption and to be secure in their use of encrypted data. 
While the PROTECT Act clearly affirms this right, it is 
relatively silent on the balance of procedural protections 
between Americans' privacy interests and legitimate law 
enforcement efforts. I do not think we can afford to be silent 
on this issue.
    The administration and the FBI have over time indicated 
support for language that would mandate key recovery for all 
domestic encryption and alternatively support several suggested 
approaches that would make using domestic key escrow a 
practical, although not legal, necessity. Director Freeh has 
gone so far as to mention the need for a new fourth amendment 
that considers the ``realities'' of the digital age.
    I think we need a new and improved approach to domestic 
encryption, not a new updated version of the fourth amendment, 
and I for one am not eagerly awaiting the FBI's new release of 
the fourth amendment 2.0 or first amendment 98. I am, however, 
eager to hear what the Administration's current position is on 
key recovery and key escrow.
    My own E-PRIVACY bill sets out specific procedures for 
balancing the legitimate interests of law enforcement with the 
privacy rights of Americans, and I hope that any final 
legislation passed by the Senate would include such provisions. 
Those are my two observations.
    Again, I want to say that the PROTECT Act is a strong step 
in the right direction toward protecting American privacy 
rights and American industry, but I think it should go further.
    I look forward to hearing from our panelists today and 
engaging them in serious discussion on these issues, and I 
thank the gentleman from Montana, whose leadership in this area 
has been very valuable to America.
    Senator Burns. Thank you very much, Senator. It has been an 
issue that both of us have been around a day or two, so we are 
not complete strangers to it.
    Congressman Goodlatte is on his way. In the meantime--oh, 
he is here.
    Mr. Goodlatte. Hiding.
    Senator Burns. You are still on your way, right?
    Senator Ashcroft. On his way to the microphone.
    Senator Burns. That is right, that is right.
    Congressman, we thank you. You have been a great leader on 
this issue in the House and we appreciate your coming over this 
morning and offering your thoughts on this piece of 
legislation.

 STATEMENT OF HON. BOB GOODLATTE, U.S. REPRESENTATIVE FROM THE 
                       STATE OF VIRGINIA

    Mr. Goodlatte. Well, Senator, thank you for the opportunity 
to testify before the Senate Commerce Committee today. I want 
to commend you and Chairman McCain and Senator Ashcroft for 
your hard work in this area. I was delighted to hear the 
comments of Senator Kerry a little while ago. I had brought the 
same New York Times article with me, so I will not need to ask 
that it be made part of the record.
    But I do want to point out that one of the items in here 
that he did not mention is that the United States has lost its 
monopoly on the basic mathematical technologies underlying data 
encryption. For example, of the 15 algorithms now being 
considered by the National Institute of Standards for a new 
American Encryption Standard, 10 have been developed outside of 
the United States. If we do not act on this soon, we are going 
to be left behind in that regard.
    I also would ask that the committee consider making part of 
the record an article by Congressman Chris Cox, who is, as you 
know, the chairman of the committee that just released the Cox 
report and who is a strong supporter of changes in our export 
controls laws related to encryption and a co-sponsor of our 
legislation in the House, the SAFE Act. He has an article that 
was published in the San Jose Mercury News entitled ``China: 
Export of Technology Would be Liberating Force.'' I think it 
makes a very strong case for why, while export controls are 
appropriate in some sectors, liberalizing our export controls 
on encryption would be of great benefit to our nations.
    Senator Burns. That will be made part of the record.
    [The material referred to follows:]

         China: Export of technology Would be Liberating Force

                          (By Christopher Cox)

    American Policy toward the People's Republic of China should 
proceed from this central premise: It is our sincere hope for the 
Chinese people that they will no longer live under a communist 
government.
    To this end, America's--and California's--world leadership in high-
tech enterprise promises far more than economic benefits. The export of 
these products to the Chinese people can be a great democratizing and 
liberating force.
    In January, the People's Republic sentenced Lin Hai, a 30-year-old 
software executive and Web page designer, to prison for supposedly 
``inciting subversion of state power.'' His so-called ``crime'' 
consisted of exchanging e-mail addresses with an anti-communist group 
in America.
    But if Lin Hai had been able to keep the contents of his computer 
messages away from the prying eyes of the Ministry of State Security--
using strong encryption in commercially available software--he would be 
a free man today.
    That is why America's companies, the leaders in encryption 
technology, must be able to export their products to China and around 
the world.
    Strong encryption is--as Beijing's communist leadership is well 
aware--a massive threat to totalitarian regimes and their government-
maintained monopoly on information, because it permits individuals to 
communicate privately without fear of government eavesdropping or 
interception.
    In this and the previous Congress, I have sponsored the Security 
and Freedom through Encryption Act, together with a broad coalition of 
Republican and Democratic lawmakers, I disagree with the Clinton-Gore 
administration, and with Sen. Dianne Feinstein, that the current 
prohibition on American businesses exporting encryption software is 
necessary for our national security.
    Yet the Clinton-Gore administration would go beyond the current 
prohibition, endorsing not just restrictions on encryption exports, but 
also requiring every encryption program sold--even within the United 
States--to have a secret key to permit eavesdropping by law enforcement 
officials or foreign governments.
    The Clinton-Gore administration seems to place a higher priority on 
stopping the export of encryption software to the Chinese people than 
on preventing the theft of our nuclear weapons technology by the 
People's Liberation Army.
    This is exactly backward. Rather than control commercially 
available computers, software and technology, we should safeguard our 
most critical military secrets.

                         TRANSFER OF TECHNOLOGY

    For the past nine months, I've chaired a congressional select 
committee investigating the transfer of militarily sensitive technology 
to the People's Republic of China. The committee's classified report, 
unanimously approved by all five Republicans and four Democrats, found 
overwhelming evidence that such transfers--including theft through 
espionage--have caused serious harm to U.S. national security, and 
continue to this day.
    But some have inferred that this should mean clamping down on 
commercial exports. To the contrary: The committee found that the 
current export-licensing process is riddled with errors and plagued by 
delays. It often does very little to protect our national security--
while frequently doing a great deal to damage America's competitiveness 
in world markets.
    The committee has therefore recommended streamlining export rules. 
The United States should provide a new ``fast track'' for most items, 
while focusing greater resources and expertise on the limited targets 
that we know from our intelligence are the subject of specific 
collection efforts by the People's Republic of China and others.
    Trade in innovative technologies, goods and services can help 
undermine inefficient state-run industries and bring hope of a better 
life to the Chinese people.
    In areas like transportation, telecommunications and financial 
services, it is the means by which communist China--whose economy is 
smaller on a per capita basis than Guatemala's--can become a developed 
nation.
    In fields such as medicine, biotechnology and farming, U.S. trade 
offers hope for the desperately poor millions who are still China's 
majority that they will be able to each and survive.
    Encouraging exports to China that promote individual freedom and 
well-being is in the United States' national security interest. For 
this reason, in addition to allowing the export of encryption software, 
U.S. policy should focus on unleashing the Internet as an engine of 
freedom in China.
    Among the 1.2 billion people in the People's Republic of China, 
only one in a thousand is an Internet user. But Internet use is growing 
at a rate that threatens the Communist Party's grip on China.
    As Chinese journalist Sang Ye has observed: ``New ways of thinking, 
of communicating, of organizing people and information--the Net takes 
aim squarely at things that since Mao's earliest days have been the 
state's exclusive domain.''
    Today's China's communist dictatorship is working hard to re-route 
its citizens away from the information superhighway and onto the state-
controlled ``Intranet.'' This new Intranet allows communication only 
among approved users who share communist-approved content. The Ministry 
of Post and Telecommunications supervises and approves all networks, 
and its screens virtually all news and even financial information that 
citizens may receive from foreign sources.
    While the Chinese Communist Party argues, on the Internet home page 
of the People's Daily, that the open flow of communications would be 
destabilizing, Americans know from our own experience that technology 
is best used as a means to an end: a promise of greater freedom.
    The United States should move aggressively to frustrate the Chinese 
government's censorship of the Internet by condemning it as a barrier 
to free trade, an impediment to joining the World Trade Organization, 
and a violation of the several human rights covenants it has signed. 
And we should encourage the construction of an expanded Internet 
architecture that frustrates censorship and control by repressive 
states.
    At the same time, the United States should work with all nations 
for the establishment of the Internet as a global free-trade zone, 
which not only will make it increasingly difficult for governments 
including China's to choke off access but also will pressure them 
further to reduce protectionist trade barriers.
    Finally, we should recognize that while our currently limited trade 
with China's protectionist government may be better than nothing, the 
object of U.S. policy must be a liberalization of trade that is 
fundamentally at odds with the nation's communist system.

                            TRULY FREE TRADE

    Despite America's free-trade policy, we still sell less to the 
billion-plus People's Republic of China than to the 22 million people 
of Taiwan. Instead of business ventures being approved one at a time by 
the Communist Party's Politburo, truly free trade means a billion 
Chinese interacting independently with a quarter-billion Americans.
    A policy toward the People's Republic of China that frustrates this 
objective is both shortsighted and cruel.
    The recent public attention to espionage raises proper concerns 
about our lack of security, but it should not distract us from our 
objective of freedom for China's people--a result that American 
technology exports can help bring about.
    Today, we have the worst of both worlds: Military technology that 
the communist government can use to hold the Chinese people in terror 
is being stolen, while commercial technology that can liberate the 
Chinese people is delayed in the export-
licensing bureaucracy.
    It's time to focus not on whether to engage--we should all be 
agreed on that--but rather on the terms of engagement. We should have 
no illusions about with whom we are dealing. We should have no doubt 
about where our policy is taking us. Freedom--not engagement and 
possibly marriage to a communist dictatorship--is what our policy 
toward China should be seeking to achieve. U.S. Rep. Christopher Cox, 
R-Newport Beach, is chair of the House Select Committee on U.S. 
National Security and Military-Commercial Concerns with the People's 
Republic of China. He wrote this article for the San Jose Mercury News 
Sunday Perspective section.

    Mr. Goodlatte. Thank you, Mr. Chairman.
    As you know, I have worked for many years on the encryption 
issue in the House. The legislation I have introduced in this 
Congress, H.R. 850, the Security and Freedom Through Encryption 
Act of 1999, currently has 257 co-sponsors, including a 
majority of both the Republicans and Democrats in the House and 
a majority of both the Republican and Democratic leadership.
    The SAFE Act has passed the House Judiciary Committee by 
voice vote and is now pending before the Committees on 
International Relations, Commerce, Armed Services, and 
Intelligence. Each of these additional committees is expected 
to act soon on the legislation and it is my hope that the SAFE 
Act will be considered by the House in the summer or early 
fall.
    Encryption has many benefits. First, it aids law 
enforcement by preventing piracy and white collar crime on the 
Internet. Several studies over the past few years have 
demonstrated that the theft of proprietary business information 
costs American industry hundreds of billions of dollars each 
year. The use of strong encryption to protect financial 
transactions and information would prevent this theft from 
occurring.
    With the speed of transactions and communications on the 
Internet, law enforcement cannot stop thieves and criminal 
hackers by waiting to react until after the fact. Only by 
allowing the use of strong encryption, not only domestically 
but internationally as well, can we hope to make the Internet a 
safe and secure environment.
    As the National Research Council's Committee on National 
Cryptography Policy concluded:

    If cryptography can protect the trade secrets and 
proprietary information of businesses and thereby reduce 
economic espionage, which it can, it also supports in a most 
important manner the job of law enforcement. If cryptography 
can help protect nationally critical information systems and 
networks against unauthorized penetration, which it can, it 
also supports the national security of the United States.

    Second, if the global information infrastructure is to 
reach its true potential, citizens and companies alike must 
have the confidence that their communications and transactions 
will be secure.
    Third, with the availability of strong encryption overseas 
and on the Internet, the Administration's export restrictions 
only serve to tie the hands of American business. Due in large 
part to these export controls, foreign companies are winning an 
increasing number of contracts by telling prospective clients 
that American encryption products are weak and inferior, which 
is robbing our economy of jobs and revenue. I understand you 
are going to hear testimony further in regard to the new report 
mentioned in the New York Times article, which Senator Kerry 
made a part of the record.
    In fact, one study, one noted study, found that failure to 
address the current export restrictions by the year 2000 will 
cost American industry $60 billion and 200,000 jobs. Under the 
current system, America is surrendering our dominance of the 
global marketplace.
    The SAFE Act remedies this situation by allowing the export 
of generally available American-made encryption products after 
a 15-day, one-time technical review. Additionally, the bill 
allows custom-designed encryption products to be exported after 
the same review period if they are commercially available 
overseas and will not be used for military or terrorist 
purposes.
    The SAFE Act enjoys the support of members, individuals, 
and organizations across the entire spectrum of ideological and 
political beliefs, not only because it is a common sense 
approach to solving a serious problem, but also because 
ordinary Americans' privacy and security is being assaulted by 
this Administration.
    Amazingly enough, some in the Administration want to 
mandate a back door into people's computer systems in order to 
access their private communications. In fact, some in the 
Administration have stated that if people do not voluntarily 
create this back door, they may seek legislation forcing them 
to give the Government access to their information by mandating 
a key recovery system requiring people to give the keys to 
decode their communications to a government-approved third 
party. This is the technological equivalent of mandating that 
the Government be given a key to every home in America.
    Mr. Chairman, I would also like to note that we will hear 
from Administration representatives who will say that they do 
not support a mandatory key recovery system. One of the 
problems we have had in addressing this is that the 
Administration has not been speaking with one voice and there 
has been an inconsistency with regard to their policy.
    I would like to note with great appreciation the position 
you and Chairman McCain have taken on this issue in the PROTECT 
Act. I could not agree more with the domestic-related 
provisions of your legislation which, like the SAFE Act, 
prevent the Administration from putting roadblocks on the 
information superhighway by prohibiting the Government from 
mandating a back door into the computer systems of private 
citizens and businesses.
    Additionally, both the PROTECT Act and the SAFE Act ensure 
that all Americans have the right to choose any security system 
to protect their confidential information.
    I would like to encourage you to consider further changes 
in this area with regard to export controls. Certainly the 
immediate decontrol of 64-bit encryption is helpful to our 
industry, as are the provisions allowing the export of strong 
encryption to, as you have called them, legitimate and 
responsible entities or organizations and their strategic 
partners, and the unlimited export of encryption once the new 
AES standard is developed and implemented. These are marked 
improvements over Chairman McCain's legislation contained in S. 
909 from the last Congress.
    Our industry needs export relief now and I do not believe 
that it can afford to wait until the AES standard is adopted a 
few years from now. While the immediate decontrol of 64-bit 
encryption is better than the Administration's current 56-bit 
level, the industry standard is, as has been noted here today, 
128 bits, which consumers and companies alike are demanding to 
protect their communications and transactions.
    So as the PROTECT Act moves through the Senate, I encourage 
you to continue to look for ways to provide further export 
relief to U.S. industry.
    I would also like to note that the SAFE Act does not 
completely eliminate export controls on encryption products. 
Like the PROTECT Act, the SAFE Act allows the President to 
prohibit encryption exports to terrorist states and impose 
embargoes and allows the Secretary of Commerce to stop the 
export of specific products to specific individuals or 
organizations in specific countries if there is substantial 
evidence that they will be used for military or terrorist 
purposes.
    As NSA Deputy Director Barbara McNamara recently testified 
before the House Commerce Committee, ``end uses and end users 
are what the Administration uses to determine whether a product 
should be exported. This is official government policy.'' With 
the millions of communications, transmissions, and transactions 
that occur on the Internet every day, American citizens and 
businesses must have the confidence that their private 
information and communications are safe and secure.
    I want to again thank you for allowing me to testify today 
and I look forward to working with you and Senator Ashcroft as 
you move forward on this legislation. We hope you can pass a 
good bill out of the Senate. We will try to do the same thing 
in the House and work together to resolve this problem.
    Thank you.
    [The prepared statement of Representative Goodlatte 
follows:]

     Prepared Statement of Hon. Bob Goodlatte, U.S. Representative 
                             from Virginia

    Mr. Chairman, I would like to thank you for inviting me to testify 
today on legislation you have introduced--S. 798, the PROTECT Act of 
1999--to encourage the use of strong encryption.
    As you know, I have worked for many years on the encryption issue 
in the House. The legislation I have introduced this Congress, H.R. 
850, the Security And Freedom through Encryption (SAFE) Act of 1999, 
currently has 257 cosponsors, including a majority of both the 
Republican and Democratic leadership. The SAFE Act has passed the House 
Judiciary Committee by voice vote, and is now pending before the 
committees on International Relations, Commerce, Armed Services, and 
Intelligence. Each of these additional committees is expected to act 
soon on the legislation, and it is my hope that the SAFE Act will be 
considered by the House in the summer or early fall.
    Encryption has many benefits. First, it aids law enforcement by 
preventing piracy and white-collar crime on the Internet. Several 
studies over the past few years have demonstrated that the theft of 
proprietary business information costs American industry hundreds of 
billions of dollars each year. The use of strong encryption to protect 
financial transactions and information would prevent this theft from 
occurring. With the speed of transactions and communications on the 
Internet, law enforcement cannot stop thieves and criminal hackers by 
waiting to react until after the fact.
    Only by allowing the use of strong encryption, not only 
domestically but internationally as well, can we hope to make the 
Internet a safe and secure environment. As the National Research 
Council's Committee on National Cryptography Policy concluded, ``If 
cryptography can protect the trade secrets and proprietary information 
of businesses and thereby reduce economic espionage (which it can), it 
also supports in a most important manner the job of law enforcement. If 
cryptography can help protect nationally critical information systems 
and networks against unauthorized penetration (which it can), it also 
supports the national security of the United States.''
    Second, if the Global Information Infrastructure is to reach its 
true potential, citizens and companies alike must have the confidence 
that their communications and transactions will be secure.
    Third, with the availability of strong encryption overseas and on 
the Internet, the Administration's export restrictions only serve to 
tie the hands of American business. Due in large part to these export 
controls, foreign companies are winning an increasing number of 
contracts by telling prospective clients that American encryption 
products are weak and inferior, which is robbing our economy of jobs 
and revenue. In fact, one noted study found that failure to address the 
current export restrictions by the year 2000 will cost American 
industry $60 billion and 200,000 jobs. Under the current system, 
America is surrendering our dominance of the global marketplace.
    The SAFE Act remedies this situation by allowing the export of 
generally available American-made encryption products after a 15-day, 
one-time technical review. Additionally, the bill allows custom-
designed encryption products to be exported, after the same review 
period, if they are commercially available overseas and will not be 
used for military or terrorist purposes.
    The SAFE Act enjoys the support of members, individuals and 
organizations across the entire spectrum of ideological and political 
beliefs, not only because it is a common-sense approach to solving a 
serious problem, but also because ordinary Americans' privacy and 
security is being assaulted by this Administration.
    Amazingly enough, the Administration wants to mandate a back door 
into peoples' computer systems in order to access their private 
communications. In fact, the Administration has stated that if people 
do not ``voluntarily'' create this back door, it may seek legislation 
forcing them to give the government access to their information, by 
mandating a ``key recovery'' system requiring people to give the keys 
to decode their communications to a government-approved third party. 
This is the technological equivalent of mandating that the government 
be given a key to every home in America.
    Mr. Chairman, I would like to note with great appreciation the 
position you have taken on this issue in the PROTECT Act. I couldn't 
agree more with the domestic-related provisions of your legislation, 
which--like the SAFE Act--prevent the Administration from placing 
roadblocks on the information superhighway by prohibiting the 
government from mandating a back door into the computer systems of 
private citizens and businesses. Additionally, both the PROTECT Act and 
the SAFE Act ensure that all Americans have the right to choose any 
security system to protect their confidential information.
    On the issue of export relief, I would also like to commend you for 
the changes you have made in this year's bill. Certainly the immediate 
decontrol of 64-bit encryption is helpful to our industry, as are the 
provisions allowing the export of stronger encryption to, as you have 
called them, ``legitimate and responsible entities or organizations and 
their strategic partners,'' and the unlimited export of encryption once 
the new AES standard is developed and implemented. These are marked 
improvements over the export restrictions contained in S. 909 from the 
last Congress.
    However, I would like to encourage you to consider further changes 
in this area, along the lines of those contained in the SAFE Act. Our 
industry needs export relief now--I do not believe that it can afford 
to wait until the AES standard is adopted a few years from now. And 
while the immediate decontrol of 64-bit encryption is better than the 
Administration's current 56-bit level, the industry standard is 
currently 128-bit encryption--which consumers and companies alike are 
demanding to protect their communications and transactions. So as the 
PROTECT Act moves through the Senate, I encourage you to continue to 
look for ways to provide further export relief to U.S. industry.
    I would also like to note that the SAFE Act does not completely 
eliminate export controls on encryption products. Like the PROTECT Act, 
the SAFE Act allows the President to prohibit encryption exports to 
terrorist states and impose embargoes, and allows the Secretary of 
Commerce to stop the export of specific products to specific 
individuals or organizations in specific countries if there is 
substantial evidence that they will be used for military or terrorist 
purposes. And as NSA Deputy Director Barbara McNamara recently 
testified before the House Commerce Committee, ``end uses and end users 
are what we use to determine whether a product should be exported--this 
is official government policy.''
    With the millions of communications, transmissions, and 
transactions that occur on the Internet every day, American citizens 
and businesses must have the confidence that their private information 
and communications are safe and secure. Again, thank you for allowing 
me to testify today, and I look forward to working together with you as 
the PROTECT Act moves through the Senate and the SAFE Act moves through 
the House.

    Senator Burns. Thank you very much, Congressman. We 
appreciate your interest and leadership in this issue.
    I am going to call the panel. Any questions for the 
Congressman?
    Senator Ashcroft. May I just commend the Congressman. I 
have had the opportunity and good fortune to work with him, and 
his understanding of the issues related to encryption is 
unsurpassed in the Congress. I appreciate that, and I think, 
frankly, the American people and the data industry owes you a 
debt of gratitude. I know that I do, and I thank you for your 
leadership.
    Mr. Goodlatte. Thank you for your kind words.
    Senator Snowe. Mr. Chairman.
    Senator Burns. The Senator from Maine.

       STATEMENT OF HON. OLYMPIA J. SNOWE, U.S. SENATOR 
                           FROM MAINE

    Senator Snowe. Thank you, Mr. Chairman. I want to welcome 
my good friend and former colleague from the House here today, 
and commend you for your leadership on this issue and your 
presentation before the committee.
    Mr. Goodlatte. Thank you, Senator Snowe. I would like to 
tell you that I will be in your State, in fact in your home 
town, tomorrow and Saturday for my 25th reunion at Bates 
College. So I appreciate your kind words.
    Senator Snowe. I wish you good weather and great lobsters.
    Mr. Goodlatte. Thank you.
    Senator Burns. At least they have got a warning up there, 
right?
    Mr. Goodlatte. That is right.
    Senator Burns. We like these warnings.
    I will call the first panel to the table, and while they 
are coming up, Senator Snowe, do you have a statement that you 
would like to make?
    Senator Snowe. No, Mr. Chairman. I have a statement for the 
record.
    Senator Burns. It will be made part of the record.
    [The prepared statement of Senator Snowe follows:]

  Prepared Statement of Hon. Olympia J. Snowe, U.S. Senator from Maine

    Thank you, Mr. Chairman. Today's hearing is extremely important 
because it addresses an issue that will only grow in importance as the 
Global Information Infrastructure (GII) continues to develop and 
evolve: the availability of strong encryption technology.
    Without the knowledge that one's information is private and secure, 
the full potential of the Global Information Infrastructure--and the 
transmission and utilization of information on the Internet in 
particular--will never be realized.
    On the one hand, if one is certain that their proprietary or 
personal information can only be accessed by those for whom it is 
intended, one will be at ease putting business plans, personal medical 
records, and other confidential files ``on-line''. But if security is 
inadequate for the prevention of unauthorized ``browsing'' or outright 
``piracy,'' one's willingness to utilize the countless benefits of on-
line commerce will be severely hampered.
    The United States imposes limits on the export of encrypted 
products-- in part--to ensure that law enforcement and intelligence 
agencies have easier access to the information these products contain. 
Presumably, if the products exported by the United States do not allow 
for encryption beyond a certain level, the threat to national security 
will be lessened.
    While I believe we would all agree that national security is of the 
utmost importance--and any policy that protects American citizens from 
``on-line crime'' is beneficial--it is also important that we be 
realistic in setting these policies. If our policies do not reflect the 
reality of the global marketplace, we will not only fail to accomplish 
the goals we are pursuing, but we may also risk harming businesses and 
consumers in the United States that we are seeking to protect.
    In addition, high-tech industries in the United States have a great 
deal at stake in the ongoing debate on encryption export restrictions. 
If our current export policies are ``behind the times,'' domestic 
producers of computer hardware and software risk being at a competitive 
disadvantage in the global marketplace. At the same time, other U.S. 
companies that rely on the use of these encrypted technologies to 
manufacture consumer products--such as cellular telephones--could also 
be adversely impacted by a poorly conceived export policy.
    Accordingly, today's hearing will give us a chance to review the 
need for, and impact of, S. 798, the PROTECT Act--legislation that 
would fundamentally alter the manner in which encryption export 
restrictions are established. Ultimately, it is my hope that this 
hearing will assist us in determining whether or not our current export 
restrictions are both practical and effective, and if changes such as 
those contained in S. 798 would be a step forward or a step back for 
the United States.
    I would like to thank our witnesses for being with us this morning, 
and look forward to the discussion this hearing will generate on a 
topic that is so fundamental to the development of the world's 
information infrastructure. Thank you, Mr. Chairman.

    Senator Burns. We have William Reinsch, who is the Under 
Secretary of Export Administration, Department of Commerce; 
James Robinson, Assistant Attorney General from the Criminal 
Division; and we have Barbara McNamara, Deputy Director of the 
National Security Agency.
    We appreciate all of you taking time in your busy days and 
your responsibilities and duties to come and visit with us 
today about this very important subject. We will just go in 
order, I guess. So Secretary Reinsch, we look forward to 
hearing from you and some of yours.
    I might add that your complete statement will be made part 
of the record. If you want to consolidate that and offer your 
views, that is perfectly OK, too. We appreciate you coming 
today.
    Mr. Secretary, good to see you again.

STATEMENT OF HON. WILLIAM A. REINSCH, UNDER SECRETARY OF EXPORT 
          ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE

    Mr. Reinsch. Thank you, Mr. Chairman. It is good to be 
back. I do have a shorter statement. We have a lot to say about 
this bill, however, so it is not quite as short as it could be, 
I suppose.
    I want to thank you for the opportunity to be back to 
discuss this difficult subject. I think we made a lot of 
progress since I was here the last time, and that is one of the 
subjects I want to discuss with you.
    It should be obvious from the testimony today that 
encryption is a hotly debated issue. I want to make clear what 
the Administration's policy is. We support a balanced approach 
which considers privacy and commerce, as well as protecting 
important law enforcement and national security equities. We 
have been consulting closely with industry and its customers to 
develop a policy that provides that balance in a way that also 
reflects the evolving realities of the marketplace.
    There is no question about the evolving role of encryption 
in the marketplace and in e-commerce, and my full statement has 
a lot to say about that in terms of details, I will not pass 
that on to this committee at this time because you are already 
well familiar with it.
    But I do want to say that developing a balanced policy is 
complicated because we do not want to hinder encryption's 
legitimate use, but at the same time we do want to protect 
national security and law enforcement. Now, over the last 
several years as we have been studying this problem we have 
learned that there are many ways to assist lawful access beyond 
key escrow or key recovery and that there is no one-size-fits-
all solution. We believe our policy reflects that, and I would 
like to describe it for you.
    We published a regulation in September 1998, which allows 
the export of unlimited strength encryption to banks and 
financial institutions. This allows U.S. companies new 
opportunities to sell encryption products to a key market for 
encryption products.
    Last September, the Vice President also unveiled an update 
to our policy, and we published regulations implementing it 
last December. It permits the free export of unlimited strength 
encryption products to several key sectors of the market. In 
addition to banks and financial institutions, we now allow 
health facilities and online merchants to purchase U.S. 
encryption to secure their sensitive financial, medical, and 
online transactions in digital form. U.S. companies can now 
export 128-bit or greater encryption products, including 
encryption technology, to subsidiaries located worldwide to 
protect proprietary information and to develop new products.
    Furthermore, this update allows the export of unlimited 
strength recovery-capable or recoverable products. These 
products do not require a third party to hold any key, are not 
key escrow, but allow for law enforcement access under proper 
court authority. They are readily available in the marketplace 
and include general purpose routers, firewalls, and virtual 
private networks.
    We have also made progress with other countries, Mr. 
Chairman, through the hard work of Ambassador David Aaron, the 
President's Special Envoy on Cryptography. We agreed in the 
Wassenaar arrangement last December on several changes relating 
to encryption controls. We removed multilateral controls on all 
encryption products at or below 56 bits and certain consumer 
items regardless of key length.
    We also agreed to amend the General Software Note on this 
issue. Drafted in 1991 when banks, governments, and militaries 
were the primary users of encryption, the General Software Note 
did not give countries the legal authority to require a license 
for the export of mass market encryption software. The note was 
created to release general purpose software used on PCs, but it 
inadvertently also released encryption.
    We believed it was essential to modernize the note and 
close the loophole. Under a new Cryptography Note adopted in 
December, a 64-bit key length threshold has been set for mass 
market encryption software and hardware. This enables 
governments to review export mass market products stronger than 
64 bits.
    I want to be clear. This does not mean that encryption 
products of more than 64 bits cannot be exported. Our own 
policy permits that, as I just made clear, as does the policy 
of most other Wassenaar members. It does mean the products must 
be reviewed by governments consistent with their national 
policies before export.
    Now, let me comment in conclusion, Mr. Chairman, on the 
PROTECT Act. With respect to S. 798, the Administration opposes 
this legislation for a number of reasons. Overall, we believe 
it does not promote the balance that we worked so hard to 
achieve over the last several years and which I have just 
defined.
    Let me discuss several, but not all, of the more 
problematic sections. Under section 505, the removal of export 
controls on publicly or generally available encryption is left 
to an advisory board. We believe such a board would be 
unworkable. The broad definitions used in the bill would give 
the board wide latitude in making its findings on what is 
available. This could place the Secretary in the position of 
having to routinely object to the removal of export controls 
when important national security and law enforcement interests 
are at stake.
    The bill also makes this decision subject to judicial 
review. The Administration does not think it is wise public 
policy for the courts to adjudicate executive branch decisions 
on national security matters like the ones that would be rolled 
into these kinds of decisions.
    Section 501 of the bill removes the Department of Justice 
from the encryption export license consultation process. Since 
law enforcement interests are an important consideration in 
regard to encryption, we cannot support that provision. We do 
support the provisions that require a technical review for 
eligibility for export under a license exception. That is 
consistent with our current regulations. What we cannot 
support, however, is the portion of section 504 that would 
provide automatic eligibility after 15 days if there has been 
no decision from the government.
    That same section also proposes control parameters and 
export liberalizations beyond what we can entertain and which 
would be contrary to our international export control 
obligations. For example, Wassenaar agreed to decontrol 
products up to 56 bits. This bill would decontrol products 
using a key length of 64 bits or less.
    Section 504 also expands the products, end users, and 
countries eligible beyond what we are willing to consider at 
this point.
    Section 102 is also troubling, as it would permit a U.S. 
person located anywhere in the world to develop, manufacture, 
sell or use any type of encryption. This would in effect 
prevent the government from requiring a license for U.S. 
persons to develop and manufacture encryption abroad. As a 
result, U.S. companies would likely move all development and 
manufacture of encryption out of the United States in order to 
take advantage of this loophole. This is not in our country's 
economic or national security interests.
    Section 103 contains a provision that would prohibit the 
U.S. Government from conditioning any approval on the fact that 
a product is recoverable. A fundamental feature of our 
encryption policy is that we provide incentives for companies 
to develop products that provide strong security and also meet 
the needs of national security and law enforcement. The bill 
would eliminate this laudable feature of our policy that 
industry had asked us to include in last year's update. This 
provision is also inconsistent with section 504, which allows 
license exception treatment for recoverable products.
    Now, we have also some problems, Mr. Chairman, with other 
non-export control provisions of the bill. Section 202 requires 
that encryption products used by the Government must 
interoperate with other commercial encryption products. The 
extent to which interoperability is required is unclear in the 
bill as drafted, but we believe that the practical result of 
the bill would be that the Government could not use encryption 
because no single encryption product interoperates with all 
other products.
    It also appears that this provision could prohibit the use 
of encryption developed by the Government for its own internal 
use in closed systems that are purposefully designed not to 
interoperate with other systems, such as those used by the 
Department of Defense or the National Security Agency.
    I want to make clear we do not seek encryption export 
control legislation, nor do we believe that legislation is 
needed. We believe the current regulatory structure is 
sufficient for balanced oversight. As the Senators here today 
know, public debate on this issue has often been lively and on 
some occasions acrimonious, although certainly not in this 
room. We hope to find a middle ground that can meet all of our 
needs.
    Our dialog with industry has gone a long way toward 
bridging that gap and finding that middle ground. We will 
continue this policy of cooperative exchange, which is clearly 
the best way to pursue our policy objectives of balancing 
public safety, national security, and the competitive interests 
of our companies.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Reinsch follows:]

     Prepared Statement of William A. Reinsch, Under Secretary for 
           Export Administration, U.S. Department of Commerce

    Thank you, Mr. Chairman, for the opportunity to testify on the 
direction of the Administration's encryption policy. We have made a 
great deal of progress since my last testimony before this Committee on 
this subject.
    Even so, encryption remains a hotly debated issue. The 
Administration continues to support a balanced approach which considers 
privacy and commerce as well as protecting important law enforcement 
and national security equities. We have been consulting closely with 
industry and its customers to develop a policy that provides that 
balance in a way that also reflects the evolving realities of the 
market place.
    One of the many uses of the Internet which will have a significant 
affect on our everyday lives is electronic commerce. The Internet and 
other digital media are becoming increasingly important to the conduct 
of international business. There were 43.2 million Internet hosts 
worldwide last January compared to only 5.8 million in January 1995. 
According to a recent study, the value of e-commerce transactions in 
1996 was $12 million. The projected value of e-commerce in 2000 is 
$2.16 billion. To cite one example, travel booked on Microsoft's 
Website has doubled every year since 1997, going from 500,000 to an 
estimated 2.2 million this year. Many service industries which 
traditionally required face-to-face interaction such as banks, 
financial institutions and retail merchants are now providing cyber 
service. Customers can now sit at their home computers and access their 
banking and investment accounts or buy a winter jacket with a few 
strokes of their keyboard.
    Furthermore, most businesses maintain their records and other 
proprietary information digitally. They now conduct many of their day-
to-day communications and business transactions via the Internet and E-
mail. An inevitable byproduct of this growth of electronic commerce is 
the need for strong encryption to provide the necessary secure 
infrastructure for digital communications, transactions and networks. 
The disturbing increase in computer crime and electronic espionage has 
made people and businesses wary of posting their private and company 
proprietary information on electronic networks if they believe the 
infrastructure may not be secure. A robust secure infrastructure can 
help allay these fears, and allow electronic commerce to continue its 
explosive growth.
    Developing an encryption policy has been complicated because we do 
not want to hinder its legitimate use--particularly for electronic 
commerce; yet at the same time we want to protect our vital national 
security, foreign policy and law enforcement interests. We have 
concluded that the best way to accomplish this is to continue a 
balanced approach: to promote the development of strong encryption 
products that would allow lawful government access to plain text under 
carefully defined circumstances; to promote the legitimate uses of 
strong encryption to protect confidentiality; and continue looking for 
additional ways to protect important law enforcement and national 
security interests.
    During the past three years, we have learned that there are many 
ways to assist lawful access. There is no one-size-fits-all solution. 
The plans for recovery encryption products we received from more than 
60 companies showed that a number of different technical approaches to 
recovery exist. In licensing exports of encryption products under 
individual licenses, we also learned that, while some products may not 
meet the strict technical criteria of our regulations, they are 
nevertheless consistent with our policy goals.
    Additionally, we decided that the use of strong non-recovery 
encryption within certain trusted industry sectors is an important 
component of our policy to protect private consumer information and 
allow our U.S. high-tech industry to maintain its lead in the 
information security market. Taking into account all that we have 
learned and reviewing international market trends and realities, we 
made several changes in 1998 to our encryption policy that I will now 
summarize.
    In September 1998, we published a regulation allowing the export, 
under a license exception, of unlimited strength encryption to banks 
and financial institutions located in 46 countries which allows U.S. 
companies new opportunities to sell encryption products to the world's 
leading economy. This policy recognizes the need to secure our 
financial networks, and the history of cooperation which the banking 
and financial communities have with government authorities when 
information is required to combat financial and other crimes.
    More importantly, on September 16th, Vice President Gore unveiled 
an update to our encryption policy. This Policy Update was the result 
of a dialogue with U.S. industry, law enforcement, and privacy groups 
on how our policy might be improved to find technical solutions, in 
addition to key recovery, that can assist law enforcement in its 
efforts to combat crime. At the same time, we wanted to find ways to 
assure continued U.S. technology leadership, promote secure electronic 
commerce, and protect privacy concerns. We believed then and now that 
the best way to make progress on this issue is through a constructive, 
cooperative dialogue, rather than by legislative solutions. Through 
dialogue lasting more than a year, there has been increased 
understanding among the parties and we have made progress.
    On December 31, we published regulations implementing the Vice 
President's policy announcement. These regulations will not end the 
debate over encryption controls, but we believe the regulation 
addresses some private sector concerns by opening large markets and 
further streamlining exports.
    The Update permits the export of 128-bit encryption products and 
higher (with or without key recovery) to several important industry 
sectors. Now, banks, financial institutions, health facilities, and on-
line merchants can secure their sensitive financial, medical, and on-
line transactions in digital form. This update also allows U.S. 
companies to export 128-bit or greater encryption products, including 
technology to subsidiaries around the world, to protect its proprietary 
information and to develop new products. Further, this update allows 
the export of 128-bit or greater ``recovery capable'' or 
``recoverable'' encryption products under an encryption licensing 
arrangement. Such products include those that are readily available in 
the marketplace such as general purpose routers, firewalls, and virtual 
private networks. These recoverable products are usually managed by a 
network or corporate security administrator without any involvement by 
a third party. Since the Update announcement, Industry has been taking 
advantage of this new liberalization and the streamlined process 
awarded to such products.
    Many of the updates permit the export of encryption to these end-
users under a license exception. That is, after the product receives a 
technical review, it can be exported by manufacturers, resellers and 
distributors without the need for a license or other additional review. 
These license exceptions currently apply to a list of countries or a 
set of end users. We also have a general policy of approval for exports 
to those sectors through encryption licensing arrangements (ELA), a 
kind of bulk license, to allow unlimited shipments of strong encryption 
to the sectors worldwide.
    We also further streamlined exports of key recovery products by no 
longer requiring a review of foreign key recovery agents and no longer 
requiring companies to submit business plans.
    We recognize that the development of our policy is an evolutionary 
process, and we intend to continue our dialogue with industry. Our 
policy will continue to adapt to technology and market changes. We will 
review our policy again this year with a view toward making further 
changes. An important component of our review is input from industry, 
which we are receiving through our continuing dialogue.
    This past year, we also made progress on developing a common 
international approach to encryption controls through the Wassenaar 
Arrangement. Established in 1996 as the successor to COCOM, it is a 
multilateral export control arrangement among 33 countries whose 
purpose is to prevent destabilizing accumulations of arms and 
industrial equipment with military uses in countries or regions of 
concern. Wassenaar provides the basis for many of our export controls.
    In December, through the hard work of Ambassador David Aaron, the 
President's special envoy on encryption, the Wassenaar Arrangement 
members agreed on several changes relating to encryption controls. 
These changes go a long way toward increasing international security 
and public safety by providing countries with a stronger regulatory 
framework for managing the spread of robust encryption. Specific 
changes to multilateral encryption controls include removing 
multilateral controls on all encryption products at or below 56 bit and 
certain consumer items regardless of key length, such as entertainment 
TV systems, DVD products, and on cordless telephone systems designed 
for home or office use.
    Most importantly, the Wassenaar members agreed to remove encryption 
software from Wassenaar's General Software Note and replace it with a 
new cryptography note. Drafted in 1991, when banks, government and 
militaries were the primary users of encryption, the General Software 
Note allowed countries to export mass market encryption software 
without restriction. The GSN was created to release general purpose 
software used on personal computers, but it inadvertently also 
permitted countries to release encryption. It was essential to 
modernize the GSN and close the loophole that permitted the 
uncontrolled export of encryption with unlimited key length. Under the 
new cryptography note, mass market hardware has been added and a 64-bit 
key length or below has been set as an appropriate threshold. This will 
lead governments to review the dissemination of 64-bit and above 
encryption.
    I want to be clear that this does not mean encryption products of 
more than 64 bits cannot be exported. Our own policy permits that, as 
does the policy of most other Wassenaar members. It does mean, however, 
that such exports now can be reviewed by governments consistent with 
their national export control procedures.
    Export control policies without a multilateral approach have little 
chance of success. Agreement among the Wassenaar members on the 
treatment of mass market encryption products is a strong indication 
that other countries share our public safety and national security 
concerns. Contrary to what many people thought two years ago, we have 
found that most major encryption producing countries are interested in 
developing a common approach to encryption controls.

                            THE PROTECT ACT

    With respect to S. 789, the Administration opposes this legislation 
for a number of reasons. Overall the bill does not promote the balance 
that this Administration has worked so hard to achieve over the past 
several years. Let me now discuss some of the more problematic 
sections.
    Under section 505, the removal of export controls on publicly or 
generally available encryption is in effect left to an advisory board 
composed of private sector and government representatives, with the 
concurrences of the Secretary. We believe such a board would be 
unworkable. Although availability is one of the factors we use to 
decide whether an encryption product may be exported, it is not the 
only factor and should not be elevated above the others. We need to be 
able to take all factors, including national security and public 
safety, into account when making export control decisions. Disallowing 
or downgrading important considerations will only serve to weaken our 
export control system. The broad definitions used in the bill would 
give the Board wide latitude in making its findings on what is 
available. This could place the Secretary in the position of having to 
routinely object to the removal of export controls when important 
national security and law enforcement interests are at stake. The bill 
makes this decision subject to judicial review. The Administration does 
not think it is wise public policy for the courts to adjudicate 
Executive Branch decisions on these matters.
    Section 501 removes the Department of Justice from the encryption 
export license consultation process. Since law enforcement interests 
are an important consideration in regard to encryption, we cannot 
support this provision.
    We support the provisions in the bill that require a technical 
review for eligibility to export encryption under a license exception. 
In fact, this is consistent with current regulations. What we cannot 
support, however, is the portion of section 504 that would provide 
automatic eligibility after 15 days if the exporter has not received a 
decision from the government. In all cases, a very careful technical 
review is completed in order to determine that a product is technically 
eligible for a particular license exception. Although we try to perform 
these reviews as quickly as possible, a 15-day automatic approval will 
severely limit our ability to do a careful review.
    Section 504 also proposes control parameters and export 
liberalizations beyond what the Administration can entertain and which 
would be contrary to our international export control obligations. For 
example, Wassenaar agreed to decontrol encryption products up to 56-
bits whereas this bill would decontrol encryption products using a key 
length at 64-bits or less. Section 504 also expands the set of 
products, end users, and countries eligible to receive encryption under 
a license exception beyond what we believe is prudent.
    Another troubling part of this bill is section 102, which would 
permit a U.S. person located anywhere in the world to develop, 
manufacture, sell or use any type of encryption. If this provision were 
construed to permit U.S. citizens to develop, manufacture and sell 
encryption products overseas, even with the use of non-public 
controlled technology that they had acquired in the United States, it 
would, in effect, prevent the government from requiring a license for 
U.S. persons to develop and manufacture encryption abroad. As a result, 
U.S. companies would likely move all development and manufacture of 
encryption out of the United States in order to take advantage of this 
loophole. This is not in our country's economic or national security 
interest.
    Section 103 contains a provision that would prohibit the U.S. 
Government from conditioning any approval on the fact that a product is 
recoverable. A fundamental feature of our encryption policy is that we 
provide incentives for companies to develop products that provide 
strong security and also meet the needs of national security and law 
enforcement. The bill would eliminate this laudable feature of our 
policy that industry wanted us to include in last year's update. In 
addition, this provision of the bill is inconsistent with section 504 
which allows license exception treatment for recoverable products.
    Section 506 would eliminate any export controls on products using 
the forthcoming Advanced Encryption Standard (AES). We oppose the 
removal of export controls on encryption products simply because they 
implement a government standard. Products incorporating the AES should 
be exportable to the same extent as any other product incorporating 
encryption of similar strength. Under our current policy, AES-based 
products could be exported to banks, large corporations, on-line 
merchants without restriction and to many other safe endusers depending 
on the nature of the product. We do not think it is wise to link 
development of the AES to export controls. Such a linkage might bring 
undue pressure on NIST to complete the AES process faster than planned, 
and may therefore not allow prudent study of the security features of 
the candidate algorithms before selection.
    With respect to the provisions of the bill that do not relate to 
export controls, we have a number of questions and concerns.
    One such provision in Section 202 requires that encryption products 
used by the Government must interoperate with other commercial 
encryption products. The extent to which interoperability is required 
is unclear in the bill, but we believe the practical result of this 
requirement is that the Government could not use encryption because no 
single encryption product interoperates with all other products. It 
also appears that this provision could prohibit the use of encryption 
developed by the government for its own internal use in ``closed'' 
systems that are purposefully designed not to interoperate with other 
systems.
    Section 202 also appears to prevent mandatory use of recoverable 
encryption when communicating with U.S. Federal, state and local 
governments. This would appear to preclude an agency from requiring key 
recovery or recoverable products for business purposes. We believe the 
effect of this provision may be much broader than simply preventing 
government from using recoverable encryption when dealing with the 
public. The practical effect would be that Government sites would have 
to be capable of supporting secure communications using all encryption 
methodologies on the market. This is absurd.
    We are concerned that section 302 of the bill may preclude NIST's 
work with voluntary standards organizations because it prohibits the 
Secretary of Commerce from carrying out any policy that establishes an 
encryption standard for use by businesses or other entities other than 
for computer systems operated by the United States Government. The 
Secretary of Commerce is prohibited from establishing standards for 
business; however, when invited by standards organizations to do so, 
NIST does, as a matter of policy, work together with those 
organizations. Cooperation between NIST and standards organizations is 
important for both NIST and industry, and it is consistent with 
government policy to use voluntary standards and to purchase commercial 
off-the-shelf products. If the government cannot have input to the 
standards process, we may end up with less secure products available 
for government agencies. We want to encourage, to the extent possible, 
the development of voluntary standards that meet the needs of the 
government. This reduces costs for both government and industry.
    In regard to section 401 dealing with the ``Information Technology 
Laboratory,'' we have two concerns. First, we do not think it is 
appropriate for NIST to undertake research and development of new 
technologies to facilitate lawful access to communications and 
electronic information. This activity is more appropriately done by the 
FBI. Second, we are concerned that the bill will provide NIST with new 
tasks but no new funding to carry out this work. We have similar 
concerns with section 402. The advisory board, whose correct statutory 
name is ``Computer System Security and Privacy Advisory Board,'' is 
made up of 13 volunteers. Again, any additional tasks assigned to this 
board would require necessary funding.
    The Administration does not seek encryption export control 
legislation, nor do we believe such legislation is needed. The current 
regulatory structure provides for balanced oversight of export controls 
and the flexibility needed to adjust to our economic, foreign policy 
and national security interests to advances in technology. This is the 
best approach to an encryption policy that promotes secure electronic 
commerce, maintains U.S. lead in information technology, protects 
privacy, and protects public safety and national security interests.
    As you know, public debate over encryption policy has been lively 
and often acrimonious. Some of those on both sides of the debate are 
not interested in searching for a middle ground that can meet all of 
our needs. Our dialogue with industry has gone a long way toward 
bridging that gap and finding common ground. We will continue this 
policy of cooperative exchange, which is clearly the best way to pursue 
our policy objectives of balancing public safety, national security, 
and the competitive interests of U.S. companies.

    Senator Burns. Thank you, Mr. Secretary. I want to also 
thank you for the dialog we have had. We are not new to this 
debate. We have been going through it. But we have learned, I 
think, from each other. It is enlightening to know how the 
evolution of the mind set changes as technology moves forward.
    We are pleased to welcome Jim Robinson, Assistant Attorney 
General for the Criminal Division. Thank you for coming this 
morning.

    STATEMENT OF HON. JAMES K. ROBINSON, ASSISTANT ATTORNEY 
     GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. Robinson. Mr. Chairman, members of the committee: I 
appreciate the opportunity to appear to--
    Senator Burns. Do you want to pull the microphone a little 
closer to you.
    Mr. Robinson. I will, Senator. Thank you.
    I appreciate the opportunity to present the views of the 
Justice Department on the issue of encryption and export 
controls. As you would expect, the Justice Department is 
particularly interested in the important public safety 
interests implicated in the encryption debate. I would like to 
emphasize some of the key points outlined in my written 
statement submitted to the committee and to place those 
thoughts in a more personal context.
    When I took office as the Assistant Attorney General for 
the Criminal Division about a year ago this month, I quickly 
learned how important the encryption debate is to law 
enforcement. I served as the U.S. Attorney for the eastern 
district of Michigan from 1977 to 1980. From a technological 
point of view, the world was a very different place in those 
days, both for our society in general and certainly for law 
enforcement.
    Technological advances have made important new tools 
available to law enforcement for the successful investigation 
and prosecution of criminal activity. These tools have enhanced 
law enforcement's ability to protect public safety and to 
achieve just results. The use of DNA evidence is a prime 
example. DNA evidence can not only provide strong evidence of 
guilt, it can be powerful evidence of innocence.
    Technology has also enhanced law enforcement's capacity for 
early detection and prevention of criminal acts. But 
technological progress has also had its costs. The potential 
dark side of this progress is that well-financed criminal 
elements are also using new technology to commit crimes, avoid 
detection, and to cover their tracks. Traditional highly-
effective law enforcement techniques are threatened by these 
developments.
    The issue of encryption starkly presents both aspects of 
technological progress. Encryption supports public safety and 
law enforcement by protecting sensitive and personal 
information from unauthorized access. Encryption is therefore, 
as many have said here this morning, an absolutely essential 
tool for preventing crime in the information age.
    The Department is, however, deeply concerned about the 
other side of encryption, the threat to public safety posed by 
the widespread use of nonrecoverable encryption by criminals. 
Thus the Justice Department supports the spread of strong 
recoverable encryption both to protect the privacy and safety 
of American citizens and the security of our information 
infrastructure.
    Assessing the benefits versus the risks of encryption for 
law enforcement in today's world is complex enough, but the 
issue is made even more complex and problematic by the 
expanding use of global information networks like the Internet. 
Technological advances in electronic commerce and 
communication, as we all know, have led to the explosive growth 
of the Internet. This development has made the use of robust 
encryption essential for protecting the privacy and security of 
communications and stored electronic data.
    This new technology, however, has also made it possible for 
international criminals and terrorists to target America in an 
unprecedented number of ways, such as fraud over the Internet, 
computer hacking, economic and governmental espionage, and 
cyberterrorism. We are also seeing a dramatic growth of 
international crime with grave potential consequences for the 
Nation.
    Law enforcement must be concerned not only with the use of 
encryption by domestic criminals, but increasingly we must be 
concerned by the ability of foreign criminals and terrorists to 
target America and use robust encryption to hide their criminal 
activity. Law enforcement agencies in the United States and 
abroad have already begun to see cases where encryption has 
been used in an attempt to conceal criminal activity. The 
number and complexity of these cases will certainly increase as 
increasingly powerful encryption proliferates.
    As this committee considers the issue of encryption, we 
trust that it will consider also, as we know it will, the very 
real cost to public safety that the use of nonrecoverable 
encryption by terrorists, drug dealers, and other criminals 
will pose. Faced with the use of such encryption, agents 
frequently and increasingly will be unable to make effective 
use of search warrants, wiretap orders, and other legal 
processes authorized by Congress and sanctioned by the courts. 
Law enforcement will find it increasingly difficult to obtain 
important evidence of criminal activities. Critical evidence to 
support successful prosecution may simply be unavailable. In 
short, this will mean that fewer crimes will be prevented and 
fewer criminals will be caught, prosecuted, and taken off the 
streets.
    Despite these challenges to effective law enforcement, we 
cannot and must not ignore the significant benefits of 
encryption. That is why the Department supports a carefully 
balanced approach to export controls, an approach that seeks to 
encourage the favorable uses of encryption while minimizing its 
negative effects on public safety and national security. The 
Department believes that the rapid elimination of export 
controls as proposed in the PROTECT Act would upset this 
delicate balance. It is likely that the passage of this act 
would cause in the near term the easy acquisition of robust 
nonrecoverable encryption products, not only by people we want 
to have them, but by terrorist organizations and international 
criminals on a global scale. This development will 
substantially frustrate the ability of law enforcement to 
combat international criminal activity.
    Instead of encryption decontrol, we believe that a 
continuing dialogue offers the best hope of developing workable 
solutions to the encryption dilemma. Law enforcement has been 
engaging industry leaders in a continuing and cooperative 
dialogue in an attempt to work toward voluntary solutions that 
accommodate the needs of privacy, electronic commerce, national 
security, and public safety. We will continue to work hard to 
make sure that these productive discussions will continue to 
bear fruit.
    We are realists. We understand that no matter what 
solutions industry develops and no matter what policy is 
adopted by the Administration and by Congress, some criminals 
will obtain and use robust nonrecoverable encryption that will 
deny law enforcement the ability to obtain useable evidence. We 
cannot afford to stand still while technology passes us by. 
Therefore, in addition to an intensive dialogue with industry 
and continuing to work with the international community on this 
important topic, law enforcement must continue developing its 
own technical expertise to deal effectively with encrypted 
evidence of criminal activity.
    The Department has begun initiatives such as the funding of 
a centralized technical resource within the FBI which will 
support Federal, State and local law enforcement personnel in 
developing a broad range of expertise, technologies, and tools 
to respond directly to the threat to public safety posed by the 
use of encryption by criminals and terrorists.
    In conclusion, we believe that an approach that balances 
the need for secure private communications and data storage 
with the equally important need to protect the safety of the 
public against threats from terrorists and criminals is the 
best policy.
    We appreciate your willingness to consider these important 
public safety concerns and we look forward to working with you 
on this important issue. Thank you very much.
    [The prepared statement of Mr. Robinson follows:]

 Prepared Statement of James K. Robinson, Assistant Attorney General, 
             Criminal Division, U.S. Department of Justice

    Mr. Chairman, thank you for the opportunity to testify about the 
Department of Justice's views on encryption, and particularly the 
proposed Promote Reliable On-Line Transactions to Encourage Commerce 
and Trade (PROTECT) Act, introduced by you as S. 798. As you are aware, 
encryption, and specifically export controls on encryption, presents 
complex and difficult issues that we are attempting to address with our 
colleagues throughout the Administration. In my testimony, I will first 
outline the basic perspective and recent initiatives of the Department 
of Justice on encryption issues, and will then discuss some specific 
concerns with the PROTECT Act.

              ENCRYPTION, THE LAW ENFORCEMENT PERSPECTIVE

    The Department of Justice supports the spread of strong, 
recoverable encryption. Law enforcement's responsibilities and concerns 
include protecting privacy and commerce over our nation's 
communications networks. For example, we prosecute under existing laws 
those who violate the privacy of others by illegal eavesdropping, 
computer hacking or theft of confidential information. Over the last 
few years, the Department has continually pressed for laws protecting 
confidential information and the privacy of citizens. Furthermore, we 
help protect commerce by enforcing the laws, including those that 
protect intellectual property rights, and that combat computer and 
communications fraud. (In particular, we help to protect the 
confidentiality of business data through enforcement of the recently 
enacted Economic Espionage Act.) Our support for robust encryption is a 
natural outgrowth of our commitment to protecting privacy for personal 
and commercial interests. As the head of the Criminal Division of the 
Department of Justice, I hold these values dear.
    But the Department of Justice protects more than just privacy. We 
also protect public safety and national security against the threats 
posed by terrorists, organized crime, foreign intelligence agents, and 
others. Moreover, we have the responsibility for preventing, 
investigating, and prosecuting serious criminal and terrorist acts when 
they are directed against the United States. We are gravely concerned 
that the proliferation and use of non-recoverable encryption by 
criminal elements would seriously undermine these duties to protect the 
American people. Therefore, we favor the spread of strong encryption 
products that permit timely and legal law enforcement access to 
plaintext.
    The most easily understood example is electronic surveillance. 
Court-authorized wiretaps have proven to be one of the most successful 
law enforcement tools in preventing and prosecuting serious crimes, 
including drug trafficking and terrorism. We have used legal wiretaps 
to bring down entire narcotics trafficking organizations, to rescue 
young children kidnaped and held hostage, and to assist in a variety of 
matters affecting our public safety and national security. In addition, 
as society becomes more proficient in its use of computers, evidence of 
crimes is increasingly found in stored computer data, which can be 
searched and seized pursuant to court-authorized warrants. But if non-
recoverable encryption proliferates, these critical law enforcement 
tools would be nullified. Thus, for example, even if the government 
satisfies the rigorous legal and procedural requirements for obtaining 
a wiretap order, the wiretap would be worthless if the intercepted 
communications of the targeted criminals amount to an unintelligible 
jumble of noises or symbols. Or we might legally seize the computer of 
a terrorist and be unable to read the data identifying his or her 
targets, plans and co-conspirators. The potential harm to public 
safety, law enforcement, and to the nation's domestic security could be 
devastating.
    I want to emphasize that this concern is not theoretical, nor is it 
exaggerated. Although use of encryption is far from universal, we have 
already begun to encounter its harmful effects. For example, in an 
investigation of a multinational child pornography ring, investigators 
discovered sophisticated encryption used to conceal thousands of images 
of child pornography that were exchanged among members. Similarly, in 
several major computer hacker cases, the subjects have encrypted 
computer files, thereby concealing evidence of serious crimes. In one 
such case, the government was unable to determine the full scope of the 
hacker's activity because of the use of encryption. Finally, criminal 
use of encryption is becoming increasingly international--the United 
Kingdom recently reported that in 1996 it seized encrypted files from a 
Northern Irish terrorist group concerning terrorist targets such as 
police officers and politicians. In that case, law enforcement was able 
to read the data, but only after considerable effort.
    The lessons learned from these investigations are clear: criminals 
are beginning to learn that encryption is a powerful tool for keeping 
their crimes from coming to light. Moreover, as encryption proliferates 
and becomes an ordinary component of mass market items, and as the 
strength of encryption products increases, the threat to public safety 
will increase proportionately.
    Given both the benefits presented and risks posed by encryption, 
the Department believes that encouraging the use of recoverable 
encryption products--which protect business and personal data as well 
as public safety--is an important part of the Administration's balanced 
encryption policy. Recoverable products also fulfill business needs. 
Information technology companies have told us that their customers 
recognize the need to ensure recoverability of their data when using 
strong encryption; otherwise, they risk losing access to their data 
forever. For example, a company might find that one of its employees 
lost his encryption key, thus accidentally depriving the business of 
important and time-sensitive business data. We should point out that 
loss of an encryption key is not theoretical. One company told us that 
employees commonly lose or forget their passwords, which must then be 
restored by system administrators. The same capability must exist for 
encryption systems. Similarly, a business may find that a disgruntled 
employee has encrypted confidential information and then absconded with 
the key. In these cases, a plaintext recovery system promotes important 
private sector interests. Indeed, as the Government implements 
encryption in our own information technology systems, it also has a 
business need for plaintext recovery to assure that data and 
information that we are statutorily required to maintain are in fact 
available at all times. For these reasons, as well as to protect public 
safety, the Department has been affirmatively encouraging the voluntary 
development of ``plaintext'' recovery products, recognizing that only 
their ubiquitous use will provide both protection for data and 
protection of public safety. We also want to underscore that in most 
recoverable systems, businesses will manage their own keys.
    Because we remain concerned with the impact of encryption on the 
ability of law enforcement at all levels of government to protect the 
public safety, the Department and the FBI are engaged in continuing 
discussions with industry in a number of different fora. These ongoing, 
productive discussions seek to find creative solutions, in addition to 
key recovery, to the dual needs for strong encryption to protect 
privacy and plaintext recovery to protect public safety and business 
interests. While we still have work to do, these dialogues have been 
useful because we have discovered areas of agreement and consensus, and 
have found promising areas for seeking compromise solutions to these 
difficult issues. While we do not think that there is one magic 
technology or solution to all the needs of industry, private citizens, 
and law enforcement, we believe that by working with those in industry 
who create and market encryption products, we can benefit from the 
accumulated expertise of industry to gain a better understanding of 
technology trends and develop advanced tools that balance privacy and 
security.
    Furthermore, we believe that a constructive dialogue on these 
issues is the best way to make progress, rather than export control 
legislation. Although export controls on encryption products have been 
in place for years and exist primarily to protect national security and 
foreign policy interests, they are in no sense inflexible, and have 
been updated in recent years in a continuing effort to balance the 
needs of privacy, electronic commerce, public safety, and national 
security. Indeed, largely as a result of the dialogue the 
Administration has had with industry, significant progress has been 
made on export controls. Recent updates were announced by Vice 
President Gore on September 16, 1998, and implemented in an interim 
rule, which was issued on December 31, 1998. The Department of Justice 
supports these updates to export controls, which permit the export of 
products that have a bit length of 56-bits or less, and also permit the 
easy export of unlimited-strength encryption to certain industry 
sectors, including medical facilities and banks, financial 
institutions, and insurance companies in most jurisdictions. These 
changes allow these sectors, which possess large amounts of highly 
sensitive and personal information, to use products that will protect 
the privacy of their clients. The Administration also expanded its 
policy to permit recoverable exports, such as encryption systems 
managed by network administrators, to foreign commercial firms. We 
learned about these systems through our dialogue with industry. 
According to industry, such systems are demanded by the market today 
and are in use. They are also largely consistent with the needs of law 
enforcement.
    The Department, in conjunction with the rest of the Administration, 
intends to continue our dialogue with industry, and will evaluate the 
export control process on an ongoing basis in order to ensure that the 
balance of interests remains fair to all concerned. We agree that there 
are a wide range of national interests that must be supported, 
including U.S. industry competitiveness. Hence, we are committed to 
continued review and dialogue with industry.
    At the same time, we must recognize that market forces will only 
take us so far. To the extent that criminal activity, such as terrorism 
or child pornography, occurs outside the business environment, 
criminals would rather lose data than have it seized by law 
enforcement. Thus, more must be done. Therefore, the Department of 
Justice is also trying to address the threat to public safety from the 
widespread use of encryption by enhancing the ability of the Federal 
Bureau of Investigation and other law enforcement entities to obtain 
the plaintext of encrypted commu-
nications. Among the initiatives is the funding of a centralized 
technical resource within the FBI. This resource, when fully 
established, will support federal, state, and local law enforcement in 
developing a broad range of expertise, technologies, tools, and 
techniques to respond directly to the threat to public safety posed by 
the widespread use of encryption by criminals and terrorists. It will 
also allow law enforcement to stay abreast of rapid changes in 
technology. Finally, it will enhance the ability of law enforcement to 
fully execute the wiretap orders, search warrants, and other lawful 
process issued by courts to obtain evidence in criminal investigations 
when encryption is encountered. However, we must recognize that these 
efforts--while critical--do not (like market forces) alone provide an 
adequate solution to the encryption problem, as the widespread use of 
non-recoverable encryption by criminals would quickly overwhelm any 
possible law enforcement technical response.

                            THE PROTECT ACT

    In light of the above, the proposed Promote Reliable On-Line 
Transactions to Encourage Commerce and Trade Act raises several 
concerns from the perspective of the Department of Justice. First, the 
Act may impede the voluntary development of products that could assist 
law enforcement in obtaining access to plaintext. The Administration 
believes that the development of such products is important for a safe 
society. For example, the Act might preclude the United States 
government from utilizing useful and appropriate incentives to develop 
or use key recovery techniques, such as purchasing key recovery 
products for its own use and supporting pilot projects that demonstrate 
the viability of key recovery.
    Second, the Act also could impair the government's ability to 
engage in secure electronic commerce. We are concerned that the breadth 
of the language in subsection 202(c) may limit the ability of an agency 
to require a certain type of authentication mechanism for transactions 
between the public and the government. (For example, in the context of 
an electronic filing of a regulatory report, a tax return, or an 
application for benefits, authentication of the filer's identity is 
critical, including for any subsequent enforcement action.) This 
concern is raised because the definition of ``encryption'' includes the 
use of mathematical formulas to preserve not only confidentiality, but 
also integrity or authenticity.
    Third, the PROTECT Act places responsibility for developing 
techniques for obtaining lawful access to the plaintext of 
communications and data in the National Institute for Standards and 
Technology (NIST). As I noted above, the Department of Justice has 
already begun to create a centralized technical resource within the FBI 
to develop a broad range of expertise, technologies, tools, and 
techniques to respond to the use of encryption by criminals and 
terrorists. In my view, the responsibility for developing such tools 
and techniques should in this case lie with law enforcement, because it 
is law enforcement that has the operational expertise to understand the 
requirements for such tools and techniques to be effective. Moreover, 
it is law enforcement that will actually have to put the techniques 
into practice. Instead of conferring this new responsibility on NIST, I 
would request that Congress continue to support our efforts to develop 
technical expertise within the law enforcement community.
    Fourth, we share the deep concern of the National Security Agency 
that the proposed PROTECT Act would harm national security and public 
safety interests through the liberalization of export controls far 
beyond our current policy. Among other decontrols, the proposed Act 
provides that a product is to be exportable if a product of equivalent 
strength or key length will be available outside the United States in 
the next 12 months--even if the product of supposedly equivalent 
strength is intended for different uses, is not user-friendly or widely 
used, is not cost-competitive, or does not present the same threats to 
national security. We are concerned that this considerable decontrol of 
robust encryption will cause in the near term the easy acquisition of 
robust encryption products by terrorist organizations and international 
criminals and frustrate the ability of law enforcement to combat these 
problems internationally. Moreover, the structure and functions of the 
proposed Encryption Export Advisory Board raise concerns under 
separation of powers principles and the Appointments Clause.
    It is also important to consider that our allies concur that 
unrestricted export of encryption poses a significant risk to national 
security, especially to regions of concern. As recently as December 
1998, the thirty-three members of the Wassenaar Arrangement reaffirmed 
the importance of export controls on encryption for national security 
and public safety purposes and adopted agreements to enable governments 
to review exports of hardware and software with a 56-bit key length and 
above and mass-market products above 64 bits, consistent with national 
export control procedures. Thus, the elimination of U.S. export 
controls, as provided by the proposed Act, would severely hamper the 
international community's efforts to combat such international public 
safety concerns as terrorism, narcotics trafficking, and organized 
crime.
    In light of these factors, we believe that the Administration's 
more cautious balanced approach is the best way to protect our 
commercial interests, including our interest in ensuring the success of 
U.S. industry and electronic commerce, while simultaneously protecting 
law enforcement and national security interests. We believe that 
legislation that eliminates or substantially reduces export controls on 
encryption could upset that delicate balance and is unwise.
    The recent decision of the United States Court of Appeals for the 
Ninth Circuit in Daniel Bernstein v. United States Department of 
Justice and United States Department of Commerce has not changed our 
view that legislation eliminating or substantially reducing export 
controls is contrary to our national interests. The Department of 
Commerce and the Department of Justice are currently reviewing the 
Ninth Circuit's decision in Daniel Bernstein v. United States 
Department of Justice and United States Department of Commerce, and we 
are considering possible avenues for further review, including seeking 
a rehearing of the appeal en banc in the Ninth Circuit. In the interim, 
the regulations controlling the export of encryption products remain in 
full effect, even as to Professor Bernstein's own software.
    In sum, we as government leaders should embark upon the course of 
action that best preserves the balance long ago set by the Framers of 
the Constitution, preserving both individual privacy and society's 
interest in effective law enforcement. We should promote encryption 
products which contain robust cryptography but that also provide for 
timely and legal law enforcement access to encrypted evidence of 
criminal activity. We should also find ways to support secure 
electronic commerce while minimizing risk to national security and 
public safety. This is the Administration's approach. We look forward 
to working with this Committee as it enters the markup phase of this 
bill.

    Senator Burns. Thank you very much. We will get into some 
questions this morning in a few moments.
    We welcome this morning Barbara McNamara, Deputy Director, 
National Security Agency. Thank you for coming this morning.

  STATEMENT OF BARBARA A. McNAMARA, DEPUTY DIRECTOR, NATIONAL 
                        SECURITY AGENCY

    Ms. McNamara. Thank you, Mr. Chairman, members.
    Senator Burns. Pull up that microphone a little. You have 
such a sweet, soft voice.
    Ms. McNamara. Thank you, Mr. Chairman. There are other 
people in this room who would probably take issue with that 
comment, but I am pleased to hear it.
    Senator Burns. They are not the chairman.
    Ms. McNamara. But thank you very much, and it is a pleasure 
to be here today to talk about this particular bill and its 
impact on national security from NSA's standpoint.
    NSA plays a critical role in our national security. We 
intercept and analyze the communications signals of foreign 
adversaries to produce critically unique and actionable 
intelligence reports for our national leaders and military 
commanders. Very often time is of the essence. Intelligence is 
perishable. It is worthless if we cannot get it to the 
decision-maker in time to make a difference.
    Signals intelligence proved its worth in World War II when 
the United States broke the Japanese naval code and learned of 
their plans to invade Midway Island. This significantly aided 
the U.S. defeat of the Japanese fleet and helped shorten the 
war. Today NSA is providing that same kind of intelligence 
support to our troops in the former Yugoslavia and other 
locations around the world wherever U.S. military forces are 
deployed.
    Demands on NSA for timely intelligence have only grown 
since the breakup of the Soviet Union and have expanded into 
national security areas of terrorism, weapons proliferation, 
and narcotics trafficking. Currently many of the world's 
communications are unencrypted. If not controlled, encryption 
will spread and be widely used by foreign adversaries that have 
traditionally relied upon unencrypted communications. As a 
result, much of the crucial information we are able to provide 
today could quickly become unavailable to U.S. decision-makers.
    As you review the PROTECT Act, it is very important that 
you understand the significant effect certain provisions of 
this bill will have on national security. In particular, NSA is 
concerned about the establishment of an Encryption Export 
Advisory Board heavily weighted to private sector 
representation. This effectively cedes control over U.S. export 
policy to the private sector.
    Furthermore, the board is to base its recommendation for 
export on the foreign availability or public availability of 
comparable products. In the interests of national security, 
encryption export policy should not and cannot be based solely 
on foreign availability.
    The PROTECT Act calls for the export of a product greater 
than 64 bits if it will generally be widely available from a 
foreign supplier within the next 12 months. Any policy based on 
the foreign or public availability of a comparable product, 
especially a year in advance of its actual appearance in the 
marketplace, will force administration policy to be driven by 
unfounded market trends without consideration of national 
security or foreign policy interests.
    Foreign products are often not as widely used as reported, 
as secure as advertised, or as easy to use for lack of an 
infrastructure as represented. In many cases, a foreign 
encryption product is subject to the export controls of the 
country in which it is manufactured. In the case of the other 
32 Wassenaar nations, an encryption product is held to the same 
or similar standards as U.S. products.
    In addition, there are other important concerns that must 
be taken into consideration when deciding if a product should 
be exported, such as to whom the product is exported and for 
what purpose. In that regard, the PROTECT Act also eliminates 
the end user reporting that is so valuable to national 
security.
    The PROTECT Act permits strong encryption products to be 
approved under a license exception for export to so-called 
``trustworthy entities and regions'' without prior government 
knowledge of intended end users. These include any foreign 
partners of U.S. companies, other governments, and almost any 
foreign commercial firm in any country. Some end users could in 
fact be targets of national security interests, such as 
narcotics traffickers.
    The PROTECT Act also automatically decontrols the export of 
strong encryption in the form of systems using the Advanced 
Encryption Standard to any destination upon adoption of AES, 
but at least by January 1, 2002. While current U.S. policy has 
opened up many sectors in many nations, it has done this in a 
thoughtful manner that miniminizes the risks to important 
national security interests. The PROTECT Act upsets this 
delicate balance by widely expanding exports without due 
consideration to national security.
    Finally, the PROTECT Act's 15-day technical review period 
is too rigid to permit a meaningful technical review. The 
government needs the opportunity to review a proposed export to 
assure it is compatible with U.S. national security interests 
and requires the ability to deny an export application if 
national security concerns are not adequately addressed.
    The ability to know what is being considered for export is 
a key part of U.S. export control policy. In some cases today, 
this process takes longer than 15 days because insufficient 
information is provided as part of the initial application.
    Let me make it clear. We want U.S. companies to effectively 
compete in world markets. In fact, it is something that we 
strongly support as long as it is consistent with national 
security needs.
    In summary, the PROTECT Act will harm national security. It 
will make NSA's job of providing critical actionable 
intelligence to our leaders and military commanders difficult, 
if not impossible, thus putting our Nation's security at 
considerable risk. The United States cannot have an effective 
decision-making process or a strong fighting force or a 
responsive law enforcement community or a strong 
counterterrorism capability unless the information required to 
support them is available in time to make that difference.
    Thank you, gentlemen.
    [The prepared statement of Ms. McNamara follows:]

 Prepared Statement of Barbara A. McNamara, Deputy Director, National 
                            Security Agency

    Mr. Chairman, thank you for giving me the opportunity today to 
discuss the important issue of encryption. I will be discussing the 
national security needs for export controls on encryption and why we 
oppose legislation that would effectively lift those controls. I will 
then address specific concerns NSA has with provisions of the PROTECT 
Act. However, I should like to begin by briefly introducing the 
National Security Agency (NSA) and its mission.
    The National Security Agency was founded in 1952 by President 
Truman. As a separately organized agency within the Department of 
Defense, NSA provides signals intelligence to a variety of users in the 
Federal Government and secures information systems for the Department 
of Defense and other U.S. Government agencies. NSA was designated a 
Combat Support Agency in 1988 by the Secretary of Defense in response 
to the Goldwater-Nichols Department of Defense Reorganization Act.
    The ability to understand the secret communications of our foreign 
adversaries while protecting our own communications--a capability in 
which the United States leads the world--gives our nation a unique 
advantage. The key to this accomplishment is cryptology, the 
fundamental mission and core competency of NSA. Cryptology is the study 
of making and deciphering codes, ciphers, and other forms of secret 
communications. NSA is charged with two complementary tasks in 
cryptology: first, exploiting foreign communications signals and 
second, protecting the information critical to U.S. national security. 
By ``exploitation,'' I am referring to signals intelligence, or the 
process of deriving important intelligence information from foreign 
communications signals; by ``protection'' I am referring to providing 
security for information systems. Maintaining this global advantage for 
the United States requires preservation of a healthy cryptologic 
capability in the face of unparalleled technical challenges.
    It is the signals intelligence (SIGINT) role that I want to address 
today. Our principal responsibility is to ensure a strong national 
security environment by providing timely information that is essential 
to critical military and policy decision making. NSA intercepts and 
analyzes the communications signals of our foreign adversaries, many of 
which are guarded by codes and other complex electronic 
countermeasures. From these signals, we produce vital intelligence 
reports for national deci-
sion makers and military commanders. Very often, time is of the 
essence. Intelligence is perishable; it is worthless if we can not 
provide it in time to make a 
difference in rendering vital decisions.
    For example, SIGINT proved its worth in World War II when the 
United States broke the Japanese naval code and learned of their plans 
to invade Midway Island. This intelligence significantly aided the U.S. 
defeat of the Japanese fleet. Subsequent use of SIGINT helped shorten 
the war. NSA continues today to provide vital intelligence to the 
warfighter and the policy maker in time to make a difference for our 
nation's security. Demands on us in this arena have only gown since the 
break-up of the Soviet Union and have expanded to address other 
national security threats such as terrorism, weapons proliferation, and 
narcotic trafficking, to name a few.
    Because of these growing serious threats to our national security, 
care must be taken to protect our nation's intelligence equities. 
Passage of legislation that decontrols the export of strong encryption 
will significantly harm NSA's ability to carry out our mission and will 
ultimately result in the loss of essential intelligence reporting. This 
will greatly complicate our exploitation of foreign targets and the 
timely delivery of intelligence to decision makers because it will take 
too long to decrypt a message--if indeed we can decrypt it at all.
    Today, many of the worst's communications are unencrypted. 
Historically, encryption has been used primarily by governments and the 
military. It was employed for confidentiality in hardware-based systems 
and was often cumbersome to use. As encryption moves to software-based 
implementations and the infrastructure develops to provide a host of 
encryption-related security services, encryption will spread and be 
widely used by other foreign adversaries that have traditionally relied 
upon unencrypted communications. The decontrol of encryption exports 
would accelerate the use of encryption by many of these adversaries and 
as a result, much of the crucial information we are able to gather 
today could quickly become unavailable to us. National security must 
have an opportunity to conduct a meaningful review of encryption 
products prior to their export. In the past, this review process has 
provide us with valuable insight into what is being exported, to whom, 
and for what purpose. Without this review and the ability to deny an 
export application, it will be impossible to control exports of 
encryption to individuals and organizations that threaten the United 
States. For instance, decontrol will undermine international efforts to 
prevent terrorist attacks, and catch terrorists, drug traffickers, and 
proliferators of weapons of mass destruction.
    Please do not confuse the needs of national security with the needs 
of law enforcement. The two sets of interests and methods vary 
considerably and must be addressed separately. The law enforcement 
community is primarily concerned about the use of non-recoverable 
encryption by persons engaged in illegal activity. At NSA, we are 
primarily focused on preserving export controls on encryption to 
protect national security.
    While our mission is to provide intelligence to help protect the 
country's security, we also recognize that there must be a balanced 
approach to the encryption issue. The interests of industry and privacy 
groups, as well as of the Government, must be taken into account. 
Encryption is a technology that will allow our citizens to fully 
participate in the 21st Century world of electronic commerce. It will 
enhance the economic competitiveness of U.S industry. It will combat 
unauthorized access to private information and it will deny adversaries 
from gaining access to U.S. information wherever it may be in the 
world.
    To promote this balanced approach, we are engaged in an ongoing and 
productive dialogue with industry. The recent Administration update to 
the export control regulations addresses many industry concerns and has 
significantly advanced the ability of U.S. vendors to participate in 
overseas markets. Of equal significance, the Wassenaar nations, 
representing most major producers and users of encryption, agreed 
unanimously in December 1998 to control strong hardware and software 
encryption products. The Wassenaar Agreement clearly shows that other 
nations agree that a balanced approach is needed on encryption policy 
and export controls so that commercial and national security interests 
are addressed. Both are positive developments because they open new 
opportunities for U.S. industry while still protecting national 
security. These are examples of the kinds of advances possible under 
the current regulatory structure, which provides greater flexibility 
than a statutory structure to adjust export controls as circumstances 
warrant in order to meet the needs of Government and industry. We want 
U.S. companies to effectively compete in world markets. In fact, it is 
something we strongly support as long as it is done consistently with 
national security needs NSA supports the recent updates to the 
Administration's policy. The export provisions were carefully designed 
to open up large commercial markers while tying to minimize potential 
risk to national security. We believe significant progress was made.
    As you review the PROTECT Act, it is very important that you 
understand the significant effect certain provisions of this bill will 
have on national security. In particular, NSA is concerned about the 
establishment of an Encryption Export Advisory Board, heavily weighted 
to private sector representation. This effectively cedes control over 
U.S. encryption export policy to the private sector. Furthermore, the 
Board is to base its recommendation for export on the foreign 
availability or public availability of comparable products. In the 
interests of national security, encryption export policy should not be 
based solely on foreign availability or public availability. The 
PROTECT Act calls for the export of a product greater than 64-bits if 
it will be generally or widely available from a foreign supplier within 
the next twelve months. Any policy based on the foreign or public 
availability of a comparable product, especially a year in advance of 
its actual appearance in the marketplace, will force Administration 
policy to be driven by unfounded market trends without consideration of 
national security or foreign policy interests.
    Foreign products are often not as widely used as reported, as 
secure as advertised, or as easy use (for lack of an infrastructure) as 
represented. In many cases, a foreign encryption product is subject to 
the export controls of the country in which it is manufactured. In the 
case of the other 32 Wassenaar nations, an encryption product is held 
to the same, or similar, standards as U.S. products. In addition, there 
are other important concerns that must be taken into consideration when 
deciding if a product should be exported, such as to whom the product 
is exported, and for what purpose. In that regard, the PROTECT Act also 
eliminates the end-user reporting that is so valuable to national 
security.
    The PROTECT Act permits strong encryption products to be approved 
under a license exception or export to so-called ``trustworthy'' 
entities and regions without prior government knowledge of intended 
end-users. These include any foreign partners of U.S. companies, other 
governments, and almost any foreign commercial firm in any country. 
Some end-users could, in-fact, be targets of national security 
interest, such as narcotics traffickers. The PROTECT Act also 
automatically decontrols the export of strong encryption in the form of 
systems using the Advanced Encryption Standard (AES) systems to any 
destination, upon the adoption of AES, but at least by January 1, 2002. 
While current U.S. policy has opened up many sectors in many nations, 
it has done this in a thoughtful manner that minimizes the risk to 
important national security interests. The PROTECT Act could upset this 
delicate balance by widely expanding exports without due consideration 
to national security.
    Finally, the PROTECT Act's 15-day technical review period is too 
rigid and too short to permit a meaningful technical review. The 
Government needs the opportunity to review a proposed export to assure 
it is compatible with U.S. national security interests and requires the 
ability to deny an export application if national security concerns are 
not adequately addressed. The ability to know what is being considered 
for export is a key part of U S. export control policy. In some cases 
today, this process takes longer than 15 days because insufficient 
information is provided as part of the initial application.
    In summary, the PROTECT Act will harm national security by making 
NSA's job of providing vital intelligence to our leaders and military 
commanders difficult, if not impossible, thus putting our nation's 
security at some considerable risk. Our nation cannot have an effective 
decision-making process, a strong fighting force, a responsive law 
enforcement community, or a strong counterterrorism capability unless 
the intelligence information required to support them is available in 
time to make a difference. The nation needs a balanced encryption 
policy that allows U.S. industry to continue to be the world's 
technology leader, but that policy must also protect our national 
security interests.
    Thank you for the opportunity to address the Committee.

    Senator Burns. Thank you.
    I will start it off here. I just want to ask the Deputy 
Director, why is it that we have not been very successful in 
our negotiations with other countries to come up with some kind 
of international policy with regard to the use of or the export 
of robust encryption? In other words, we have been talking to 
our, I think he is related to an ambassador, Aaron, and we have 
been told that countries are moving to export controls, 
especially in the European Union and around the country, of 
which no agreement to my knowledge and we have drawn no 
conclusions to move in that direction in the last 4 or 5 years 
ever since we have been doing this.
    Ms. McNamara. I believe we have had success in that, Mr. 
Chairman last December--well, let me begin by saying, last 
September the U.S. Government, the U.S. administration, relaxed 
export controls substantially, to include the 128-bit 
encryption that Senator Ashcroft was addressing earlier and to 
cover the firms in his home State that actually have locations 
overseas, to allow them to be able to use very strong 
encryption, 128-bit, to protect theirs.
    Now, in December we took the U.S. policy to the Wassenaar 
countries. Those are 33 nations who are the principal producers 
of strong encryption around the world. That Arrangement--we 
took the U.S. relaxation strategy to that group of people and 
what we did at the time successfully was to close a loophole 
that the Wassenaar Arrangement had previously opened which was 
providing an unlevel playing field and disadvantaging U.S. 
software companies.
    So last December we sought and got agreement by 33 nations 
to close that loophole. The Arrangement allows for all 33 of 
those nations to put in place, those who already did not have 
in place, export controls that are essentially the same level 
as the controls that the U.S. administration relaxed to last 
September.
    With regard to what is going on in the European Union, we, 
the Administration--and I will turn this over to Secretary 
Reinsch to follow up on--but we are keeping our eye very 
closely on what is going on today in the European Union and 
what those foreign governments are thinking about in terms of 
encryption policies with regard to Europe. It is never our 
intent to allow anything to occur by foreign governments that 
would disadvantage U.S. industry.
    Senator Burns. Senator Ashcroft.
    Senator Ashcroft. Secretary Reinsch, would you say that 
128-bit encryption is widely available and widely used today?
    Mr. Reinsch. No, I would say that it is available. Whether 
it is widely available is a judgment call. If it is not widely 
available today, it will be soon. It is becoming the state-of-
the-art, if you will, so I think it is a matter of time, and I 
would not have a big argument with you over the adjective.
    Whether it is widely used or not is a more complicated 
question, and I think Ms. McNamara commented on that in her 
statement. We believe that, for the reasons she cited, use is 
significantly less than the existence of the products.
    Senator Ashcroft. Do you know of any case where there has 
been a prosecution or an enforcement action taken against 
people who have, or criminals who have used encryption outside 
the range of encryption that has been provided as acceptable? 
It would be an export, I guess, enforcement because the use 
would be a violation of the export regulations. Have you 
enforced this against anyone?
    Mr. Reinsch. Yes, sir.
    Senator Ashcroft. How many cases have there been?
    Mr. Reinsch. I will have to get you the number. We have a 
number of investigations ongoing, which of course we would not 
want to comment on. We have had a number of--we will have to 
get you the number. I would say single digits at this point.
    Senator Ashcroft. But it is only illegal to export the 
encryption? It is not illegal to import the encryption?
    Mr. Reinsch. That is correct, there are no restraints on 
domestic use or on imports.
    Senator Ashcroft. So that it is a one way? In other words, 
if terrorists conspire overseas to do something, like to effect 
a terrorist act here in the United States, they can send 
material in that is encrypted to the United States?
    Mr. Reinsch. Well, we do not control in any event messages 
or information that is encrypted. What is controlled is the 
encryption that one would employ.
    Senator Ashcroft. Is the sending of an encrypted message 
from the United States to another jurisdiction, does that 
qualify as an export of the encryption?
    Mr. Reinsch. No.
    Senator Ashcroft. It does not. So that--
    Mr. Reinsch. Unless the message contains an encryption 
algorithm which is controlled. But if I sent--if you were in 
Bonn and I sent you an e-mail and it is encrypted, no.
    Senator Ashcroft. So it is true that the person or the 
terrorist organization which buys its encryption from Siemens 
in Germany can operate say in the Middle East and send messages 
back and forth to the United States, having imported the 
algorithm to the United States from Germany and have taken the 
German algorithm to the Middle East, and they can communicate 
back and forth without violating any of our laws currently?
    Mr. Reinsch. Yes. There is no--it was never the intent of 
our policy to try to deal with that.
    Senator Ashcroft. Well, it seems to me that that is the 
threat that you keep saying that we are avoiding by having this 
policy, and yet you just described that it is not our intent to 
stop that threat with our policy. To use that as the basis for 
not allowing our companies to compete, at a time when you say 
we do not care if other companies compete in that way, gets to 
the heart of what confounds me about our policy here.
    We have basically said every other country that wants to 
can go ahead and do this in the world and terrorists can use it 
and have complete access to the utilization of this encrypted 
for all the bad reasons, but American firms cannot be involved 
in exporting it. It just seems that is where the disconnect 
comes with this Senator and that is what I am struggling with.
    You said that section 102 incentives--provides an incentive 
to move the development of encryption offshore in this bill.
    Mr. Reinsch. Yes, sir.
    Senator Ashcroft. It seems to me that we have just 
described the Administration policy as a monumental incentive 
to move encryption offshore because we have indicated that 
offshore-produced encryption can be used both to send and 
receive robust encrypted material from the United States, to 
and from, without violating the policy or the law.
    Mr. Reinsch. Well, if I may comment, you have gone to one 
of the core issues, and I think it is an important dialogue to 
have. Let me make a small point first and then the larger 
point.
    On the small point, the difference between section 102 and 
our policy is that our policy now would not permit a company to 
transfer encryption technology or production technology or 
encryp-
tion algorithm overseas for production purposes. Section 102 
would, and that is the distinction we are making.
    But the larger point you are making is a more important 
one, and let me say two things about that, if I may. One is 
that I think that, as Director McNamara acknowledged in her 
testimony, this is not a policy and there probably is no policy 
that is going to be air-tight with respect to our ability to 
prevent the kinds of people you cited, terrorists in your 
example, from obtaining and using robust encryption.
    We do not believe that we can deal with every situation. 
The goal of our policy is to try to promote use in the 
marketplace of products that are law enforcement and national 
security-friendly, recognizing that a determined, committed 
terrorist who wants to use encryption can find ways around such 
a policy. But we believe by making, if we can, through market 
forces, the market standard, if you will, products that are 
more friendly to the interests of my two colleagues, what we 
will do over time is have more people, including some of the 
people that you are talking about, using this kind of 
encryption, which gives us some advantages. That is not going 
to happen in every case. We do not believe we can make it 
happen in every case.
    Now, the second point that relates to what you said is this 
question of foreign availability, and I would like to comment 
on that because you commented in your opening statement on this 
as well. I think what Director McNamara said was that we do not 
want foreign availability to be the sole criterion.
    Let me say that if it were the sole criterion for export 
control policy, we would not have controls on machine tools, we 
would not have controls on biotoxins, we would not have 
controls on chemical weapons precursors, semiconductor 
manufacturing technology, or computers at virtually any level. 
There are very few technologies over which the United States 
has a monopoly any longer, and you are quite right in saying 
that encryption is not one of them, but neither are the ones 
that I have mentioned.
    If we are going to say that foreign availability ought to 
be our single standard or it ought to be the dispositive 
standard, the net result of that is I am not going to have very 
much to do in my job. It is our belief that you need to balance 
foreign availability considerations, obviously, and we do weigh 
foreign availability in our judgments without question, and 
Director McNamara just commented on why this is a particular 
issue in the European Union case.
    But at the end of the day--and the Congress has been 
telling me this for 12 months with respect to satellites, with 
respect to computers, with respect to machine tools, that 
foreign availability is not the last word on the subject. Now, 
I think that it is ironic, to say the least, if the Congress is 
going to turn around on encryption and say that foreign 
availability is the last word on the subject.
    Ms. McNamara. May I follow up, please? The fact that one 
terrorist is using strong encryption that they either bought in 
the United States and took overseas with them or bought in 
Europe and is using it to communicate with people in this 
country is not what is of concern to us. On an individual 
basis, the U.S. Government I believe is smart enough to figure 
out a way to solve that particular problem or address that 
particular problem.
    What we are talking about here is the issue of putting in 
place legislation which would allow the ubiquitous use of 
encryption around the world, independent of individuals. We can 
always solve an individual problem with an individual solution. 
But the subject of ubiquitous encryption has dramatic impact on 
our ability to do our national security business, and let me 
offer, if the Senator wishes, a classified presentation on some 
of the subjects that I cannot address in this particular room.
    Thank you.
    Senator Ashcroft. Mr. Chairman, may I just clarify an item 
or two?
    Senator Burns. You may.
    Senator Ashcroft. Because these remarks have been 
extensive.
    Mr. Reinsch. Sorry about that.
    Senator Ashcroft. No, that is all right. I am pleased to 
have these remarks.
    Mr. Reinsch. You wind me up and get me started. These 
things happen.
    Senator Ashcroft. Well, thank you. Especially when I think 
you are supporting my position, I welcome your remarks.
    Mr. Reinsch. Then I misspoke. [Laughter.]
    Senator Ashcroft. The Director just indicated that a person 
could buy and take overseas robust encryption from the United 
States and use it overseas. Is that considered an export?
    Mr. Reinsch. Yes, that would not be permitted.
    Senator Ashcroft. Well then, you disagree with her that a 
person can do that legally?
    Ms. McNamara. I did not say it was legal. I do not think we 
will ever prevent everybody from committing a crime.
    Senator Ashcroft. OK. Well, I thought we were--I would just 
like to indicate that I did not raise the issue of terrorists. 
I am not interested in protecting terrorists here. I am 
interested in protecting our industry. But every time I want to 
protect the industry, one of you guys brings out the terrorist 
card and you throw it on the table and you say: ``We cannot 
protect America because there are these evil people out there 
that are going to encrypt messages.''
    So I am interested in protecting U.S. companies, and I am 
also interested in protecting individuals. I guess some time I 
would like to have an answer why big companies and big business 
should have better, a greater right to privacy than individuals 
should in this country, and that commercial speech should be 
entitled to more integrity and privacy than individual speech.
    So the idea of ubiquitous encryption--which I am charmed by 
that phrase. I mean, I am going to try to use it as often as I 
can.
    Ms. McNamara. May I retract that from the record?
    Senator Ashcroft. I thought it might be a description of 
Senate speeches, but----[Laughter.]
    I think ubiquitous encryption is probably what we are 
headed toward in the marketplace of the world, and I think it 
is likely to be based on software developed outside the United 
States if we make it impossible for our software producers to 
have robust encryption here, because I think people are going 
to prefer to have privacy in their communications. I think most 
of us do. Very few of us like the idea of our calls or our 
communications being intercepted.
    We are aware of technology that makes heard those things 
which were not heard. A whisper is no longer a whisper; it can 
become a shout with the right listening device. What we once 
thought was a secure transmission is now available. We want, we 
yearn for security as individuals, and the idea somehow that 
big business is entitled to encryption and that individuals are 
not in their communication is one of the hurdles that we have 
to kind of come together on somehow to solve this problem.
    Thank you, Mr. Chairman.
    Senator Burns. Senator Cleland, do you have a statement? I 
am sorry. We have had some arrivals here.

          STATEMENT OF HON. MAX CLELAND, U.S. SENATOR 
                          FROM GEORGIA

    Senator Cleland. Mr. Chairman, I would just like my 
ubiquitous opening statement to be----
    Ms. McNamara. I think I am going to regret I ever used that 
term.
    Senator Cleland [continuing]. Submitted, without objection.
    Senator Burns. I want somebody to spell it.
    Senator Ashcroft. The National Spelling Bee concluded last 
week.
    Senator Cleland. Thank you all very much.
    I am an old Army signal officer and I am a little bit 
familiar with encryption and the power of encryption, both for 
the good guys and the bad guys. Mr. Robinson, I would like for 
you to help me a little bit. I am just trying to learn some new 
terminology here about recovery. Apparently for law enforcement 
recovery is a key item, so nonrecoverable encryption becomes a 
problem.
    Recovery of what? How can you recover something that is 
encrypted, or is that the issue itself?
    Mr. Robinson. Well, I think it is, Senator, in a sense. 
What we are really interested in is maintaining our ability--
when we have probable cause and we go to court and get an order 
for electronic surveillance through a careful process that 
Congress has set out--to overhear communications. If what we 
get at the end of the road is encrypted, unrecoverable 
gibberish, we have a serious law enforcement problem.
    I think that is true also of stored electronic data. 
Increasingly, as people store their records in electronic form, 
on laptops and others, we can get a search warrant--and 
frankly, I agree with Senator Ashcroft. I think privacy 
interests are very, very important and I think people have a 
right to privacy. We are not looking for an opportunity to 
evade or invade individuals' or companies' rights to privacy, 
and that is why I said in my statement I think it is important 
to have robust encryption.
    But in those situations in which we have probable cause and 
we have procedures whereby we can go to court and get a wiretap 
order, a search warrant, we are going to be substantially 
handicapped if we do not try to contribute to an infrastructure 
that allows us to get plaintext out of these materials. That is 
our objective.
    The how is a technological question. As the chairman 
indicated, I think we need the resources to try to solve this 
problem of what do we do with encrypted evidence of criminal 
activity. We have got to solve that problem, and we hope that 
there will be an infrastructure, a contribution to an 
infrastructure, that will allow us to get plaintext when law 
enforcement needs to have it to prevent crimes from occurring, 
to investigate them, and then to put the evidence in.
    So that is essentially our equity, I think, in this debate.
    Senator Cleland. Help me out a little bit here. If we ease 
up on controls regarding exports of software, encryption 
software, that expands the bits, namely expands I guess the 
capability of data or information being encrypted, if we ease 
up on controls that allow for those software packages which 
allow for expansion of the bits or expansion of encryption to 
be sold abroad, then what you are saying is that we might get 
that back as a pie in the face. In other words, we might get 
that back in a greater difficulty for law enforcement to 
``recover'' information; is that what I am hearing you say?
    Mr. Robinson. Yes, I think that is true.
    Senator Cleland. Ms. McNamara, in terms of the pie in the 
face for you, that would be the lesser ability to, shall we 
say, to use the terminology, recover, shall we say, 
intelligence to then pass on to our commanders in the field? 
That is what we are talking about?
    Ms. McNamara. That is an accurate characterization of the 
situation, Senator.
    Senator Cleland. Mr. Reinsch, it seems like to me that this 
dovetails somewhat into the issue that we are all struggling 
with. I am on the Governmental Affairs Committee and the Senate 
Armed Services Committee. We are struggling with the issue of 
American technology, sensitive American technology, winding up 
in the hands of others, the most recent example being the 
Chinese, not just the espionage of our nuclear secrets and 
missile technology, but some of the, shall we say, leaked 
technology on missile and satellite information that wound up 
in the hands of the Chinese.
    I would say that I was one of those who supported the 
licensing of this kind of technology to move from the Commerce 
Department to the State Department. I guess I am glad to see 
your bona fide concern, I think, in the Commerce Department 
about easing up on export controls on this sensitive 
information or this sensitive encryption capability.
    I gather that the Commerce Department is very sensitive to 
this, is that correct?
    Mr. Reinsch. Yes, and we would also say we were very 
sensitive in the satellite case as well, as I think I did say 
before your subcommittee when that first came up.
    But yes, the decisions we make--the export control system 
of the United States is based on, leaving aside short supply, 
which is not on the table, controlling exports for national 
security and foreign policy reasons. That is the filter through 
which every decision we make goes. One might agree or disagree 
with a particular decision, but clearly in this case national 
security is a paramount consideration for us.
    Senator Cleland. Mr. Robinson, could you share with me a 
little bit. Does the Justice Department have some role in being 
involved in improving the U.S. end user verification system for 
supercomputers and strong encryption products? Is that a role 
that you play?
    Mr. Robinson. Not directly, we do not. We are obviously 
concerned about the extent to which these issues interface with 
our ability to do our job.
    Mr. Reinsch. We do that, Senator.
    Senator Cleland. That is through you in the Commerce 
Department?
    Mr. Reinsch. Yes, end user visits, which are both pre- and 
post--that is, we do some in advance of making the decision 
about a license because we want to check out the bona fides of 
the end user, and post because we want to see if the item 
actually went where it was supposed to go and if it is being 
used as it was intended--has been an important enforcement tool 
for us for decades.
    It is not the only enforcement tool we use by any means, 
and it has its imperfections. It is also very expensive. I 
would say that in general Congress has been less than generous 
with the resources that it would take to do more.
    We have also been handicapped, frankly, on computers in 
specific, by a congressional requirement that we visit every 
one of them. This has forced us, for example, to visit 
subsidiaries of American companies who are using them, banks, 
companies that bought one computer and then 6 months later 
bought a second one; we have had to visit them twice. It has 
prevented our agents from doing what they do best, which is 
figuring out what the risks are and spending their 
investigatorial time and talent on the places that problems.
    We have had to check a lot that we think are not problems. 
When you see the report of our inspector general on this 
subject next week, I think that--I should not get into this in 
public, but I think that he will make a distinction between 
visits that are useful and visits that are not useful. We want 
to do more of the former.
    Senator Cleland. Thank you very much.
    In closing out my questions, Mr. Chairman--I know I am out 
of time here--Ms. McNamara, I gather that your message to us is 
that we should tread very softly on this issue of encryption 
and opening up or loosening up export controls because it does 
involve sensitive issues of national security?
    Ms. McNamara. Yes, sir.
    Senator Cleland. Thank you, Mr. Chairman.
    Senator Burns. Thank you.
    Senator Dorgan, you have just joined us. Do you have a 
small statement? I am going to turn the chairmanship over to 
Senator Frist--I have got an 11 o'clock that is sort of very 
important to me--if you would agree to do that. We have got one 
more panel to go, by the way.

        STATEMENT OF HON. BYRON L. DORGAN, U.S. SENATOR 
                       FROM NORTH DAKOTA

    Senator Dorgan. Mr. Chairman, I came late and I have to 
leave in a moment because of some other hearings, but I just 
want to make in 30 seconds a comment about all of this. I, as 
you know, worked with you in the last Congress to try to 
resolve some of these issues. These are very difficult issues.
    You raise questions that I think are very important 
questions. Yet the whole export control area is very difficult. 
What used to be a supercomputer is now a laptop, available to 
anybody, any time, anywhere in the world. So as we try to sift 
through all of these issues and consider national security 
concerns, we also have to deal with the reality of what is 
happening in the world.
    My hope is that we can find a resolution that is a 
thoughtful resolution, protecting our national security 
interests and at the same time recognizing what is happening in 
the rest of the world.
    I appreciate the attention Senator Burns has given to this 
over some long period of time, that this is not an easy issue, 
and he has spent a great deal of time on it.
    So thank you very much.
    Senator Burns. Thank you, Senator.
    Senator Frist, I am going to turn this over to you. I have 
an 11 o'clock. I have tried to wheedle out of that thing two or 
three times and I am not having any more luck now than I had 
yesterday.

          STATEMENT OF HON. BILL FRIST, U.S. SENATOR 
                         FROM TENNESSEE

    Senator Frist [presiding]. Thank you, Mr. Chairman. Mr. 
Chairman before you leave, I would like unanimous consent to 
have my opening statement made a part of the record.
    Senator Burns. You are the chairman. You can do anything 
you want to.
    Senator Frist [presiding]. Thank you very much.
    First of all, I thank all three of you for being here. I 
have got a couple of other questions that I would like to just 
run through.
    Director McNamara, do the continued export restrictions on 
U.S. encryption products make sense when Wassenaar partners 
such as the U.K., France and Germany have established new 
policies encouraging their citizens to use strong encryption?
    Ms. McNamara. In terms of the strong use--the use of strong 
encryption by individual nations' citizens, we support strong 
use of encryption by U.S. citizens. We do believe that U.S. 
citizens are entitled to privacy for their own purposes.
    In terms of the export controls, however, there are 
agreements and there is compatibility and comparability between 
those export conditions that the United States has with the 
European partners that you mentioned. Now, there are 
discussions going on in Europe today. We have our eye on that. 
But when we relaxed last September, the European nations along 
with other members of the Wassenaar nations aligned their 
overarching documentation that their export control processes 
should be in line with ours now both in hardware and software.
    Senator Frist. Is progress being made there, if you look 
out?
    Ms. McNamara. Yes, yes. In terms of what we are looking at, 
we still have our eye on Europe. The Administration said last 
year when we did relax to those sectors and encryption bit 
lengths that we would review those again in September, and one 
of the ingredients in that review will clearly be what other 
foreign governments are doing.
    Let me state, though, for the record again, earlier I think 
it was Senator Ashcroft who said that we had--or perhaps it was 
Congressman Goodlatte when he was talking--that we had relaxed, 
the relaxation included going from 40 bits to 56 bits. That is 
clearly true, but in all of the sector relief that was given 
last year there is no bit length, as Secretary Reinsch said. It 
is 128-bits for use in banking, finance, commerce--sorry, 
online commerce, because it was recognition that e-commerce was 
a very important thing for U.S. companies and individuals to be 
able to have access to. So there is a large portion of that 
which is covered by 128-bit encryption.
    Senator Frist. Fine.
    Mr. Robinson, OECD, European Community; could you elaborate 
on our global partners' positions on recoverable encryption 
products and their regulations, and specifically address OECD 
as well as the European Community?
    Mr. Robinson. I think I would defer to the Secretary to 
give you a better answer than I.
    Mr. Reinsch. I can do that.
    Senator Frist. Mr. Secretary.
    Mr. Reinsch. Ambassador Aaron, who is the President's 
special envoy on this subject, has spent a lot of time with 
OECD members, I believe virtually all of whom are also members 
of what is known as the Wassenaar Arrangement, which is a 
multilateral export control regime that controls encryption 
items multilaterally. There are 33 nations in that regime, 
including Russia, including the NATO members, including all of 
the EU members, and a number of others.
    As Director McNamara has said and as I testified, we have 
had a good bit of success in that group harmonizing the export 
control policies of all 33 of those members. At the same time, 
the individual countries are developing encryption policies 
domestically, and they have wrestled with the same issues 
domestically that everybody else has wrestled with: Do we want 
to control imports, do we want to control domestic use, what do 
we want to permit to happen in our countries?
    There is a trend, I think it is fair to say, within the EU, 
which is the first place it would begin after here, away from 
key recovery, certainly away from controls on domestic use and 
in favor of allowing people within each of these countries to 
use whatever they want. There is, then, a trend away from what 
I would refer to as key escrow or key recovery, the idea that 
people mandatorily would have to provide a spare key with some 
third party entity, government or nongovernment.
    We have also taken the position that we do not want to do 
that as a mandatory step. We do see an environment for stored 
data in which people may want to do that voluntarily, and we 
have taken exceptions to provisions in some of the bills that 
we think would discourage it voluntarily.
    Most of our trading partners, whether you say OECD or the 
Wassenaar members or NATO, however you define them, are moving 
away from that kind of government involvement in the domestic 
marketplace. But at the same time they are all, on the export 
front, as near as we can tell, acting in a way that is 
generally consistent both with Wassenaar and with what we are 
doing.
    Senator Frist. Good. When we talk about appropriate 
agencies or parties to serve as key recovery agents, help me. 
What sort of appropriate agents or parties would that be?
    Mr. Reinsch. Well, mostly private parties, in fact I think 
exclusively private parties now. You need to think about it 
from the standpoint of another piece of this issue that is not 
on the table and should not be, which is the question of 
authentication and reliability for authentication. This is not 
a spare key issue, but it is a question of a public key 
infrastructure issue--if I want to send you a message, you want 
to have some certainty that the message you receive with my 
name on it came from me rather than from him or someone else, 
and I want to have some assurance that your response came from 
you and not someone who has intercepted it and is masquerading 
as you.
    That demands some authenticity and some certification that 
your message came from you. What we envision and in fact what a 
number of States have already addressed in their legislation is 
regulating the private entities that will provide that 
authentication function. They will not keep spare keys, because 
the last thing you want for authentication purposes is a spare 
key.
    But what is happening is that private parties are springing 
up that will provide essentially trust services and 
authentication services to warrant that my messages come from 
me and that you can have some confidence in that. In fact, I 
think there are probably some people in that business on one of 
the next panels, and you might want to pursue the technology 
with them.
    Senator Frist. Right. Any other comment on that, Mr. 
Robinson?
    Mr. Robinson. No, Senator.
    Senator Frist. Mr. Secretary, on the issue of research and 
development on computer security, you are against NIST's doing 
that?
    Mr. Reinsch. Not necessarily. I think Justice is.
    Senator Frist. Mr. Robinson.
    Mr. Robinson. Well, we are concerned that law enforcement 
be able to try to develop the techniques necessary to get 
plaintext because, frankly, we are the ones who are going to 
have to use them and we need to have the capacity to do so. We 
think it is critical to public safety and effective law 
enforcement when we encounter encrypted evidence of criminal 
activities to be able to figure out a way to turn that into 
real information, whether it is an audible transmission or 
stored electronic data. Without that capacity, obviously 
encryption in the wrong hands, as many things, can be a 
powerful tool to prevent law enforcement from preventing crimes 
and successfully investigating and prosecuting them. So that is 
a concern that we obviously have.
    Senator Frist. I guess then my question, and feel free to 
comment, is as we look at standardization of an advanced 
encryption system, whoever is doing that, if it is NIST, needs 
to be up to date with state-of-the-art right where we are. I 
guess it is not clear to me how if you put the research and the 
development in computer security with law enforcement, with the 
FBI, and then have NIST looking at the standardization, how 
they are really on top of things. Or is it both?
    Mr. Reinsch. If I could comment, one of my regrets this 
morning, Dr. Frist, was that I did not have an opportunity to 
bring with me a full and complete statement of NIST's views on 
that question. If I may, I would like to have them--what I will 
suggest to them is they might get in touch with you directly, 
knowing of your interest in the issue.
    They do what you are describing. They have an extensive 
computer security laboratory now. They have a lot of 
interaction with the private sector. They validate products 
that they test as a service to the private sector.
    I believe their view is that if the Justice Department 
wants to take the activity on, provided for in this bill, that 
that would be all right. If the committee wants to assign it to 
them, I am sure they would defer to the committee's judgment.
    But what I would prefer is to have them communicate with 
you directly.
    Senator Frist. Fine.
    Mr. Reinsch. I will arrange that.
    Senator Frist. Good.
    Well, thank you. We do have another panel. Would any of you 
like to make any closing statements at all?
    [No response.]
    Senator Frist. Thank you very, very much. We appreciate 
your being with us, and we will ask the second panel to come 
forward.
    I thank all three panelists for being with us. I will go 
ahead and do the introductions and then we will go in 
alphabetical order, I believe: Mr. David Aucsmith, Chief 
Security Architect, Intel Corporation; Mr. Jim Bidzos, Vice 
Chairman of the Board, Security Dynamics Technologies; and 
Professor Lance Hoffman, School of Engineering and Applied 
Science, Cyberspace Policy Institute.
    Welcome to each of you, and let us begin with Doctor--Mr. 
Aucsmith.

 STATEMENT OF DAVID AUCSMITH, CHIEF SECURITY ARCHITECT, INTEL 
                          CORPORATION

    Mr. Aucsmith. Thank you, Mr. Chairman, for this opportunity 
to talk to you this morning about the need for fundamental 
reform of America's encryption policy. I am pleased to appear 
today on behalf of the Business Software Alliance, which 
together with ACP has been in the forefront of efforts to 
persuade the Government to adopt a new U.S. encryption policy.
    I am from Intel. Intel is the world's largest semiconductor 
manufacturer and a major supplier of information technology 
building blocks to the global computer and communications 
industry. We provide our customers with chips, printed circuit 
boards, assemblies, software--all the ingredients that you 
typically think of that go into a personal computer, servers, 
and workstations.
    Actually, my being here to speak on behalf of the Business 
Software Alliance should underscore the fact that encryption is 
both a software and a hardware issue. In fact, as a general 
note, 56-bit hardware products are currently excluded from the 
favorable treatment now given by the Administration. That 
applies only to software products.
    In 1998 we employed more than 40,000 people in the United 
States. We are headquartered in Santa Clara, CA, but have 
significant manufacturing facilities in a number of States, 
including Arizona, New Mexico, Oregon, California, and 
Massachusetts.
    We urge the committee to pass the PROTECT Act with further 
amendments that would make the bill more fully comport with 
technical and marketing realities. This morning I would like to 
briefly make five points which I believe should underpin our 
U.S. encryption policy.
    First: In an Internet economy, encryption is essential to 
all businesses, not just encryption business. I want to 
emphasize this point. While private sector interest in 
encryption export reform is generally characterized in terms of 
the competitiveness of American encryption products abroad, it 
has become a much larger issue for all American businesses.
    In this economy, every business is becoming an Internet 
business. It will affect all businesses. Cryptography has 
emerged as the essential building block for building trust in 
the open Internet. Without it, the hundreds of billions of 
dollars of e-commerce currently projected to occur by the year 
2002 will be at risk.
    Second: Encryption is vital to securing America's critical 
infrastructures. I participated in the Defense Science Board 
evaluation of America's critical infrastructures. We focused on 
the vulnerability of five critical infrastructures and 
concluded that encryption is absolutely essential in their 
protection.
    The security of any network is only as good as its weakest 
link. All wires have two ends, if you will. America's 
infrastructures cannot be protected if they are networked, as 
they will be, with foreign infrastructures that use weak 
encryption. That is why permitting exports of strong encryption 
helps to promote the national security.
    Third: The availability of encryption cannot be reasonably 
controlled. Cryptography is just mathematics. Information about 
cryptography is widely available from many sources and in many 
forms. It is the subject of numerous academic conferences. It 
is taught in universities throughout the world.
    Moreover, while developing good algorithms is extremely 
difficult, if you will, rocket science, implementing them is 
relatively easy once someone has developed them.
    Fourth: Government-required or mandated plaintext access 
will not work. While mandated plaintext access offers at first 
glance a solution to the Government's problems, it is not 
technically possible in most circumstances. It does not let law 
enforcement verify compliance with access requirements a priori 
and it does not give national security interests access to 
stored information.
    There is practically no commercial reason for storing 
communications keys and I believe the need for key recovery of 
stored data is overstated. To be blunt, Intel as a corporation 
does not plan to sell products incorporating key recovery, nor 
does it expect to implement a key recovery system for its own 
use.
    Fifth: The Government needs to find technological 
alternatives to meet its requirements for access to 
information. Intel agrees that access to data communications 
and stored data by law enforcement and intelligence communities 
is both legitimate and extremely important. Clearly, Congress 
needs to adequately fund the technical efforts of these 
agencies so they can meet the challenges of the next century.
    Industry supports additional funding. Industry can also 
provide assistance and is willing to do so. BSA has advocated 
that the U.S. Government should work cooperatively with our 
Nation's hardware and software manufacturers to develop the 
technical know-how that they need. Technical innovation is 
predominantly centered in the private sector. Only a 
government-industry cooperative exchange can effectively 
address the challenge of continued technological change.
    In conclusion, let me say that we strongly believe the 
PROTECT Act should be passed, but with further improvements. 
The PROTECT Act does not--I mean, the PROTECT Act does begin to 
realize the realities of mass market products. It eliminates 
reporting requirements for such products and grants export 
relief to those products at all horizontal layers of the 
information technology sector.
    But the Act still does not grant widespread exportability 
of mass market and publicly available encryption products, and 
there is a complicated bureaucratic process which must be 
pursued. Not until 2002 will American industry be able to 
widely export products that are now using what is basically the 
worldwide standard of 128 bits in the form of the Advanced 
Encryption Standard or its equivalent. We believe that it is in 
our national interest to permit such exportability now and we 
urge the committee to amend the bill accordingly.
    Thank you very much.
    [The prepared statement of Mr. Aucsmith follows:]

    Prepared Statement of David Aucsmith, Chief Security Architect, 
                           Intel Corporation

    Thank you Mr. Chairman for the opportunity to talk to you this 
morning about the need for fundamental reform of America's encryption 
policy. I am pleased to appear today on behalf of the Business Software 
Alliance which, together with ACP, has been in the forefront of efforts 
to persuade the U.S. Government to adopt a new U.S. encryption policy. 
We urge the Committee to pass the PROTECT Act with further amendments 
that would make the bill more fully comport with technological and 
market realities.
    This morning I would like to briefly make five points that we 
believe should underpin U.S. encryption policy.
    First, encryption is essential to all business in an Internet 
economy. While private sector interest in encryption export reform is 
generally characterized in terms of the competitiveness of American 
encryption products in a worldwide market, it is becoming a much larger 
issue for all American business. The global economy, tied together with 
the Internet, is turning businesses into virtual enterprises, localized 
products into global products, and geographically limited networks into 
worldwide networks. In this environment, American businesses must be 
able to sell and support their products worldwide, must be able to 
securely coordinate with their business partners worldwide, and must be 
able to conduct safe electronic commerce worldwide.
    Quite simply, cryptography has emerged as the only possible 
solution to many of the requirements of commercial security. It is the 
essential building block for building trust onto the open Internet. 
Without it, the hundreds of billions of dollars of e-commerce currently 
projected to occur by the year 2002 will not happen.
    Second, encryption is vital to securing America's critical 
infrastructures. Much of the national economy is at risk from the 
decisions that are made today on the issues of infrastructure 
protection. Increasingly, these critical systems are driven by, and 
linked together with, computers making them vulnerable to disruption. 
The single best way, and sometimes the only way to affect effectively 
these critical networks and systems, is encryption. That's why the 
National Research Council found that encryption promotes the national 
security of the United States. However, the security of any network is 
only as good as its weakest link. America's infrastructures cannot be 
protected if they are networked with foreign infrastructures using weak 
encryption.
    Third, the availability of encryption cannot be reasonably 
controlled. Cryptography is a branch of mathematics. Cryptographic 
technology can be reduced to mathematical formulas and protocols. 
Information about cryptography is available from many sources in many 
forms. It is the subject of numerous academic conferences. It is taught 
in universities worldwide. Moreover, while developing good algorithms 
is tough, implementing them is relatively easy.
    Fourth, government promoted or required plaintext access will not 
work. While required plaintext access offers, at first glance, a 
solution to the government's problem: (1) it is not technically 
possible in most circumstances; (2) it does not let law enforcement 
verify compliance with access requirements; and (3) it does not give 
national security interests access to stored keys. There is simply no 
way that law enforcement can determine, in advance, that particular 
text had not been encrypted with more than one program or product. At 
the same time, targets of national security interests are unlikely to 
design or use a plaintext infrastructure which would allow the U.S. 
government to have secret access to plaintext.
    Moreover, there is practically no commercial reason for storing 
communications keys--if the communication is disrupted or compromised a 
new session will be established. At the same time, the need for key 
recovery of stored data also is overstated--the frequent example is an 
employee hit by a bus. With the exception of personal notes, 
information is not solely possessed by an individual. In addition, most 
mission-critical data is held by the corporate data management system 
that has its own control and protection mechanism. Finally, most 
personal data has a time value and rapidly becomes obsolete.
    If one factors in the additional costs and systemic vulnerabilities 
that result from building in access features, we conclude that there is 
no business or consumer need for key recovery or special plaintext 
access. To be blunt: Intel does not plan to implement a key recovery 
scheme for its own use. .
    Fifth, the government needs to find technological alternatives to 
meet its requirements for access to information. Intel agrees that 
access to data communications and stored data by law enforcement 
intelligence communities is both legitimate and extremely important. 
Clearly, Congress should adequately fund the technical efforts of these 
agencies so they can meet the challenges of the next century. Industry 
supports additional funding. Industry can also provide other 
assistance.
    For example, ACP proposed last year the creation of a ``NET 
center'' to help law enforcement officials understand how to deal with 
encryption and other technological advances. ACP also has advocated 
that the U.S. government should work cooperatively with our nation's 
hardware and software manufacturers to develop the technical tools and 
know-how that they need. Technical innovation is predominantly centered 
in the private sector--only a government/industry cooperative effort 
can address effectively the challenge of continued technological 
change.
    In conclusion, let me say that we strongly believe the Protect Act 
should be passed but with further improvements.
    The Protect Act does begin to realize the realities of mass market 
products, eliminates reporting requirements for such products, and 
grants export control relief to products at all horizontal layers in 
the information technology sector. But the Act still does not grant 
widespread exportability for mass market and publicly available 
encryption products. There is a complicated, bureaucratic process which 
must be pursued. Not until 2002 will American industry be able to 
widely export products using the 128-bit Advanced Encryption Standard 
or its equivalent.
    We believe it is in our national interest to permit such 
exportability now and urge the Committee to amend the bill accordingly.
    Once again, many thanks for this opportunity to testify.

                              INTRODUCTION

    My name is David Aucsmith, and as Chief Security Architect for the 
Intel Corporation I am responsible for research, development and 
deployment of data and communications security technologies and 
products, both hardware and software. Currently, my work is focusing on 
developing industry standard architectures for the application and 
interoperability of data security technologies for communications, 
electronic commerce, and content protection. I previously worked on 
security matters for two computer companies and as a Lieutenant 
Commander in Naval Intelligence.
    Intel is the world's largest semiconductor manufacturer and a major 
supplier of information technology building blocks to the global 
computer and communications industries. We provide our customers with 
chips, printed circuit board assemblies and software that are the 
``ingredients'' of PC's, servers and workstations. Our flagship 
business involves the mass production and sale of the Pentium 
family of processors and other microprocessors, which are frequently 
described as the ``brains'' of a computer because they control the 
central processing of data in computers. In 1998, our sales exceeded 
$26 billion, and we employed more than 40,000 people in the United 
States.
    Like most information technology companies, Intel's business model 
is global in scope. The bulk of our production takes place in the 
United States. Our products are sold worldwide to original equipment 
manufacturers of computer systems and peripherals, PC users who make 
purchases through various distribution channels including the Internet, 
and other manufacturers who produce a wide range of industrial and 
telecommunications equipment. Information security plays a prominent 
role in the conduct of our business.
    Intel is headquartered in Santa Clara, California, and we have 
significant manufacturing facilities in a number of states, including 
Arizona, New Mexico, Oregon, California and Massachusetts.
    Intel Corporation is a member of the Business Software Alliance 
(``BSA'') and Americans for Computer Privacy (``ACP''). Both 
associations have been in the forefront of efforts to persuade the 
government to adopt a new encryption policy.
    Since 1988, BSA has been the voice of the world's leading software 
developers before governments and with consumers in the international 
marketplace. BSA promotes the continued growth of the software industry 
through its international public policy, education and enforcement 
program in 65 countries throughout North America, Europe, Asia and 
Latin America. Its members represent the fastest growing industry in 
the world. BSA worldwide members include Adobe, Attachmate, Autodesk, 
Bentley Systems, Corel Corporation, Lotus Development, Macromedia, 
Microsoft, Network Associates, Novell, Symantec and Visio. Additional 
members of BSA's Policy Council include Apple Computer, Compaq, Intuit, 
Sybase and my company Intel. BSA websites: www.bsa.org; 
www.nopiracy.com.
    Intel Corporation takes, as a given, that access to data 
communications and stored data by the intelligence and law enforcement 
communities is both legitimate and extremely important. But, we also 
recognize that there is an inevitable tide of advancing technology that 
renders most conventional intercept methodologies obsolete. We also 
believe that all American businesses need access to strong cryptography 
to remain competitive in an ever increasing global economy.
    We believe that these varied objectives can be met if only 
government does not seek to force solutions on industry that are 
incompatible with the development of technology and market demands. It 
is our view that, given the breathtaking pace at which information 
technology (including cryptography) is developing around the globe, the 
only way to achieve these goals is to adopt policies that will ensure 
American industry leadership in the area of information technology.
    This morning I would like to discuss five points that we believe 
should underpin U.S. encryption policy:

    1. Encryption is essential to conducting all business in an 
Internet economy;
    2. Encryption is vital to securing America's critical 
infrastructures;
    3. The availability of encryption cannot be reasonably controlled;
    4. Government promoted or required plaintext access will not work; 
and
    5. The government needs to find technological alternatives to meet 
its requirements for access to information.
   encryption is essential to conducting all business in an internet 
                                economy
    While the private sector interest in encryption export reform is 
generally characterized in terms of the competitiveness of American 
encryption products in world markets, it is, in reality, a much larger 
issue for American businesses. In an Internet economy, all American 
businesses are affected by encryption export constraints.
    The future of business is fundamentally changing. The Internet 
presents two distinctly different business opportunities.
     Moving existing business to the Internet. Taking our 
existing paper-based commerce models and moving them to the electronic 
world.
     Creating new businesses because of the Internet. The 
Internet provides a ubiquity, connectivity and speed that has never 
existed before. There are many hereto unimagined businesses that will 
arise to capitalize on these capabilities.
    The global economy, tied together with the Internet, is turning 
businesses into virtual enterprises, localized products into global 
products, and geographically limited networks into worldwide networks. 
Taking place on a massive scale, this phenomenon rests on the following 
business principles:
     American businesses must be able to sell and support their 
products worldwide.
     American businesses must be able to securely communicate 
and coordinate with their foreign subsidiaries and business partners 
worldwide.
     American businesses must be able to conduct safe 
electronic commerce worldwide.
    I will address each of these three principles in more detail. 
However, it should be obvious that they all depend on secure 
communications and financial infrastructures. Cryptography is an 
essential component of the security of these critical infrastructures, 
regardless of the nature of the company involved.
    It is easy to underestimate the magnitude of the information 
technology industry in the U.S. and the importance of Internet driven 
electronic commerce. The Department of Commerce reported that:
    Without information technology--and the electronic commerce it 
fosters-- overall inflation would have hit 3.1% last year, more than a 
full percentage point higher than the 2% it was . . . \1\
    By the year 2002, Internet commerce is expected to be $327 billion 
\2\ annually. By the year 2001, the U.S. information technology 
industry will be directly responsible for 5% of the GNP.\3\
American businesses must be able to sell their products worldwide
    Much has been said about the need for American businesses to be 
able to sell their encryption products worldwide as will be discussed 
later in this testimony. What is not obvious is that encryption 
controls may make it difficult to sell non-encryption products on the 
world market as well. For example, a telecommunications application may 
need to have an integrated cryptographic component to meet an 
international standard.
American businesses must be able to securely communicate and coordinate 
        with their foreign subsidiaries and business partners worldwide
    Business practices demand tight coordination with both a companies 
overseas subsidiaries, their suppliers and their customers. It is 
essential that confidentiality and access control to business 
information be maintained. Frequently companies are suppliers or 
customers on one product and competitors on another. The tightly 
integrated networks required for coordination could rapidly become a 
source of competitive intelligence if not adequately protected. Only 
strong cryptography can offer the level of protection required.

American businesses must be able to conduct safe electronic commerce 
        worldwide
    In the near future, there will now longer be dedicated Internet 
companies--virtually every company will have to be an Internet company 
to survive. This requires that companies have the capability to 
securely sell products over the Internet to markets around the world. 
The ability to prevent fraud and protect intellectual property will 
depend heavily on the use of strong cryptography.
    Importantly, corporate participation in electronic commerce 
includes both business-to-business and business-to-consumer 
transactions.

There is a need for commercial security
    There has always been some level of need for data security in 
commercial environments. However, the Internet has enabled the 
connected PC and, with it, created both new business opportunities and 
new security vulnerabilities.
    Both the value and volume of on-line information has sharply risen. 
This information includes organizational information such as financial 
data, manufacturing information, customer information, medical and 
legal records, and human resources data. Additionally, there is a 
growing amount of data which has intrinsic value, such as monetary 
instruments (e.g., credit cards, coupons, etc.) and intellectual 
property (e.g., movies, images, etc.).
    In the past, such data was protected by physical and procedural 
controls. The connected PC largely negates those conventional controls 
and requires new security mechanisms, thus creating a need for 
commercial security technology.
    After many years of false starts, commercial data security has 
become a viable business. The Internet has provided the driving force 
for this change. Physical barriers have all but disappeared, and 
security perimeters have become vague.
    The Internet has created needs for security that were not present 
in isolated security domains. This has, in turn, created opportunities 
for vendors of security technologies and has also created a need for 
standards so those technologies can interoperate.
    Cryptography is the only viable solution to most commercial 
security requirements
    Cryptography has emerged as the only possible solution to many of 
the requirements of commercial security. It is the essential building 
block for projecting trust onto the open Internet.
    The modern global commercial information infrastructure is 
characterized by more than 95 million Internet-connected computers,\4\ 
most of which are in open environments with little or no physical 
control. They use a wide variety of hardware and software and implement 
no common security policy.
    Only cryptographic technologies are capable of projecting security 
onto a completely open, arbitrary environment. Cryptography, by itself, 
does not guarantee any level of security. It is a necessary component 
but not a sufficient component.
    Privacy, also known as confidentiality, is the characteristic that 
information is protected from being viewed in transit during 
communications and/or when stored in an information system. With 
cryptographically-provided confidentiality, encrypted information can 
fall into the hands of someone not authorized to view it without being 
compromised. It is almost entirely the confidentiality aspect of 
cryptography that has posed public policy dilemmas.
    The commercial use of privacy (or confidentiality) encompasses not 
only the traditional view described above, but also the protection of 
intellectual property such as digital video and digital audio. The same 
technology used to keep communications private are required to ensure 
that a digital movie is not illegally copied.

   ENCRYPTION IS VITAL TO SECURING AMERICA'S CRITICAL INFRASTRUCTURES

    Governments also are recognizing that without encryption, the 
electronic networks that control such critical functions as airline 
flights, health care functions, electrical power and financial markets 
remain highly vulnerable. The U.S. General Accounting Office in its 
report issued in May of 1996 entitled ``Information Security: Computer 
Attacks at Department of Defense Pose Increasing Risks'' found that 
computer attacks are an increasing threat, particularly through 
connections on the Internet, such attacks are costly and damaging, and 
such attacks on Defense and other U.S. computer systems pose a serious 
threat to national security.
    There is an awareness within the government of the vulnerability of 
the national information infrastructure to potential attack. The Marsh 
Report \5\ highlighted the vulnerabilities very well. Much of the 
national economy is at risk from the decisions that are made today on 
the issues of infrastructure protection. Any action that degrades the 
security of Internet commerce or the viability of the industries 
involved must be viewed as a serious risk to the national security.
    As the President said on January 22, 1999, before the National 
Academy of Sciences, ``[w]e must be ready--ready if our adversaries try 
to use computers to disable-power grids, banking, communications and 
transportation networks, police, fire and health services--or military 
assets. More and more, these critical systems are driven by, and linked 
together with, computers, making them more vulnerable to disruption.''
    The President has been so concerned that he established a 
Commission on Critical Infrastructure Protection to provide him with 
guidance and issued two Presidential Directives based on the 
Commission's recommendations.
    In the Report of the President's Commission on Critical 
Infrastructure Protection entitled Critical Foundations: Protecting 
America's Infrastructures (October 1997), the Commission emphasized 
that ``Strong encryption is an essential element for the security of 
the information on which critical infrastructures depend.'' In fact 
``[p]rotection of the information our critical infrastructures are 
increasingly dependent upon is in the national interest and essential 
to their evolution and full use. A secure infrastructure requires the 
following:
     Secure and reliable telecommunications networks.
     Effective means for protecting the information systems 
attached to those networks . . . .
     Effective means of protecting data against unauthorized 
use or disclosure.
     Well-trained users who understand how to protect their 
systems and data.''
    An earlier blue ribbon National Research Council (NRC) Committee 
similarly concluded in its (May 1996) CRISIS Report (``Cryptography's 
Role in Securing the Information Society'') that encryption promotes 
the national security of the United States by protecting ``nationally 
critical information systems and networks against unauthorized 
penetration.''
    Thus, the NRC Committee found that on balance the advantages of 
widespread encryption use outweighed the disadvantages and that the 
U.S. Government has ``an important stake in assuring that its important 
and sensitive . . . information . . . is protected from foreign 
government or other parties whose interests are hostile to those of the 
United States.''
    In recognition of the risks and threats to information, on January 
15, 1999, the National Institute of Standards and Technology (NIST) 
established a new draft Federal Information Processing Standard (FIPS 
46-3) to require the use of stronger encryption in government systems. 
NIST stated that it ``can no longer support the use of the DES for many 
applications'' and that all new systems must use the significantly 
stronger Triple DES ``to protect sensitive, unclassified data''. Under 
the FIPS, all existing systems are now expected to develop a strategy 
to transition to Triple DES, with critical systems receiving a 
priority.
    The vulnerability of national infrastructures has not been lost on 
other governments. Within the European Union, there is discussion on 
how to encourage companies to develop products to protect national 
infrastructures in their respective countries. Such mutual government 
encouragement will help to grow technical capabilities and fuel a 
viable world market.
    Already the Swiss government is providing 128-bit encryption plug-
ins for download off the Internet. The SecureNet system is required for 
use in accessing Telegiro, an Internet payment system. The plug-ins 
support SSL connections using IDEA encryption. Several Swiss banks are 
now using on-line banking systems compatible with the Telegiro 
cryptosystem.\6\
    Information security is critical to the integrity, stability and 
health of individuals, corporations and governments. While cryptography 
is but one element of security, it is the keystone of secure, 
distributed systems. Frankly, there is no substitute for good, 
widespread, strong cryptography when attempting to prevent crime and 
sabotage through these networks. The security of any network, however, 
is only as good as its weakest link. America's infrastructures cannot 
be protected if they are networked with foreign infrastructures using 
weak encryption.
    In the long-term, we believe it is in America's best interest to 
protect critical infrastructures and national security by relying on 
strong American encryption products. This will not happen if the U.S. 
Government limits the ability of U.S. companies to provide strong 
encryption to consumers. Indeed, the question is not whether critical 
infrastructures will be protected. Rather it is a question of who will 
protect them--U.S. or foreign companies. With individuals increasingly 
relying on critical infrastructures and governments increasingly 
desiring to safeguard these infrastructures, it is only a matter of 
time before strong encryption becomes a commodity feature of global 
networks and information systems.

U.S. encryption export controls hurt our national security
    Our current export policy puts at risk America's global leadership 
in information security. U.S. export policy should, therefore, be 
changed so it no longer limits American participation in efforts to 
secure global e-commerce and related information infrastructures and no 
longer cedes the world market for encryption products to foreign 
competitors. Strong, high-quality encryption products already are 
widely available from foreign makers. Foreign producers of IT systems 
are finding that their ability to provide end-to-end systems 
incorporating stronger encryption than U.S. companies are permitted to 
export gives them a decided market advantage. We are concerned that as 
a result America will lose the critical encryption market to foreign 
companies. If that happens, it will be too late to change U.S. policy 
and too late to preserve U.S. leadership in this vital arena.
    What will the loss of that U.S. leadership position mean? It will 
mean that the national security agencies will be confronting ubiquitous 
encryption made not by U.S. companies, but by foreign companies. Where 
then will the national security agencies go for technical help on 
encryption? It also will mean that the protection of our critical 
national infrastructure may depend on foreign-made systems 
incorporating foreign-made encryption--and that's unacceptable.
    America must retain leadership in this vital technology if we are 
to meet our long-term national security objectives. That is why we must 
assess our encryption export policies from a long-term, not a short-
term, perspective.
    In the long run, U.S. national security objectives are best served 
by an IT world in which U.S. companies are market leaders in all 
aspects, especially encryption. U.S. export controls have had the 
effect of creating an encryption expertise outside the United States 
that is gathering momentum. Unfortunately, every time research and 
development of an encryption technique or product moves off-shore, U.S. 
law enforcement and national security agencies lose. We believe that 
continuing down this path will be ultimately more harmful to our 
national security and law enforcement efforts as American companies 
will no longer be the world leaders in creating and developing 
encryption products.
    In fact, as long ago as 1996, the NRC Committee concluded that as 
demand for products with encryption capabilities grows worldwide, 
foreign competition could emerge at levels significant enough to damage 
the present U.S. world leadership in information technology products. 
The Committee felt it was important to ensure the continued economic 
growth and leadership of key U.S. industries and businesses in an 
increasingly global economy, including American computer, software and 
communications companies. Correspondingly, the Committee called for 
immediate and easy exportability of products meeting general commercial 
requirements--which is currently 128-bit level encryption!
    We recognize this is a difficult balance to strike, but we strongly 
believe that our long term national security objectives can only be 
achieved if the United States realistically acknowledges the 
inevitability of a world of ubiquitous, strong encryption. Trying to 
control the proliferation of encryption is like trying to control the 
proliferation of mathematics. For that is what we are talking about 
here. Encryption algorithms are nothing but sophisticated mathematics. 
And while the United States may realistically hope to remain the leader 
in such a field, it cannot realistically expect to monopolize it.
    We are joined in this view by the Center for Strategic and 
International Studies (``CSIS''). CSIS recently conducted a study of 
our nation's technical vulnerabilities; the study was chaired by 
William Webster, the former director of the FBI and Central 
Intelligence and former U.S. Circuit Judge. The subsequent report, 
entitled Cybercrime . . . Cyberterrorism . . . Cyberwarfare . . . 
Averting an Electronic Waterloo, calls for the ``intelligence gathering 
communities--law enforcement and foreign intelligence--to examine the 
implications of the emerging environment and alter their traditional 
sources and means to address the SIW (strategic information warfare) 
needs of the twenty-first century. Continued reliance on limited 
availability of strong encryption without the development of 
alternative sources and means will seriously harm law enforcement and 
national security.''

    THE AVAILABILITY OF ENCRYPTION CANNOT BE REASONABLY CONTROLLED.

    Cryptography is a specialized branch of mathematics. Cryptographic 
technology can be reduced to mathematical formulas and protocols. 
Information about cryptography is available from many sources and in 
many forms. Implementation of cryptography is no more difficult than 
the implementation of any complicated mathematical technology such as 
digital video or digital signal processing.
Ease of implementation
    Creation of good cryptographic algorithms that will withstand the 
test of time is amazingly difficult. Recent history is littered with 
failed attempts. Even so, many algorithms have survived and have become 
part of common usage. Inventing good cryptography is the mathematical 
equivalent of ``rocket science.'' Implementing those algorithms is 
comparably ``child's play.''
    Information security is such an important part of information 
technology that it is rare for a graduate level computer science 
student to graduate without having implemented a cryptographic 
algorithm or protocol. Many of these students become competent systems-
level programmers who could easily fashion a production-quality 
cryptographic application. Many of these students are non-U.S. 
residents.

Open research
    Cryptography and cryptanalysis are legitimate academic research 
topics. There is a growing, worldwide academic community specializing 
in the subject. Last year alone there were over 30 international 
conferences focusing on cryptography or related topics and over 100 
books and journals. Many of these books include detailed specifications 
and source code of cryptography algorithms and protocols.\7\ As an 
example, Bruce Schneier's popular cryptography text, Applied 
Cryptography, has sold over 100,000 copies world wide.\8\
Intangible software
    The intangible nature of cryptographic software defies any physical 
controls. In an instant, software, cryptographic or otherwise, can be 
shipped virtually anywhere in the world. As an example, within hours of 
the U.S. release of PGP 5.0, it was available from sites in Western 
Europe.\9\
    Cryptography exists in many uncontrollable forms, such as general 
knowledge, academic research, and network deliverable software.
Availability of strong encryption products abroad
    Having export controls assumes that they are at least marginally 
effective. Cryptography is basically mathematics. The knowledge is 
inherently uncontrollable. This has led to the worldwide availability 
of strong encryption products and technologies.
    One of the ironies of the U.S. cryptographic export regime is that 
it has fostered a growth in non-U.S. cryptographic technology providers 
who can sell strong cryptography worldwide without the constraints 
imposed by the U.S. government, while U.S. companies can not make the 
same claim.
    The belief that U.S. export regulations enable foreign cryptography 
businesses is held by the European Commission. The EC stated at the 
Copenhagen Hearing:
    The current U.S. export regulations can provide a chance for 
European companies to enter the market for cryptographic products. 
Nevertheless this would require a concentrated effort of European 
industry and governments to prepare the basis for this market.\10\
    Some European companies and governments have turned this belief 
into practice. The following is quoted from a Siemens Nixdorf ad 
regarding a software product of theirs called TrustedWeb:
    By simply downloading the TrustedWeb software from the Internet, 
you can create a highly secure Intranet infrastructure in a matter of 
days. The organization itself can decide on the level of security and 
adapt it in stages in line with needs--Ranging from simple password 
protection to authentication using cryptographic procedures (Public 
Key/Private Key) with full 128-bit key length. TrustedWeb is an 
independent European product and hence is not subject to the export 
restriction imposed by the US government in relation to encryption 
software.\11\
    Siemens Nixdorf runs similar ads covering their hardware products. 
Security products are available worldwide, in spite of, or perhaps 
because of, strong U.S. export controls.
Wide deployment of strong encryption is inevitable
    There are huge commercial incentives for the spread of 
cryptography. There is a legitimate need for the technology and a sharp 
increase in the amount of money being spent on security technology.\12\ 
This has created a viable market for the technology, and there are many 
suppliers worldwide willing and able to meet the market demand.
    The recognition of the importance of security to data 
communications has lead to the inclusion of security protocols within 
international standards. Examples of such standards include the Secure 
Sockets Layer (SSL) and the Internet Packet Security (IPSEC) protocols.
    In most cases, the implementation of security components in 
international standards is optional. However, there is a strong trend 
to make many of these features mandatory. Thus, compliance with 
international communications standards will promote the diffusion of 
security technologies.

     GOVERNMENT PROMOTED OR REQUIRED PLAINTEXT ACCESS WILL NOT WORK

    As the spread of strong cryptography threatens traditional 
intelligence methods, the government has used export control relief as 
an incentive for companies to build plaintext access capability into 
every product. There have also been attempts in Congress to mandate 
plaintext access capability in such products. The overall approach has 
revolved largely, though not exclusively, around key recovery 
requirements. This section primarily addresses specific concerns about 
key recovery issues, but it is applicable to all plaintext access 
solutions that may be promoted or mandated by the U.S. Government 
(hereinafter referred to as ``required plaintext access''). The basic 
point is that non-market driven requirements to build any plaintext 
access mechanism into products will not work.
    Key recovery, as a concept, now applies not only to the initial 
purpose of assuring law enforcement access to encrypted materials, but 
also to possible end-user or organizational requirements for a 
mechanism to protect against lost, corrupted, or unavailable keys. It 
can also mean that some process, such as authority to decrypt a header 
containing a session key, is escrowed with a trusted party, or it can 
mean that a corporation or individual is ready to cooperate with law 
enforcement to access encrypted materials. It may also mean that some 
technical mechanism must be put in place to bypass the use of the key 
entirely (strict ``plaintext access'').
    While required plaintext access offers, at first glance, the 
promises of solving the technical problems of plaintext access, it is 
not technically possible for it to do so in most circumstances. It is 
unlikely to actually meet plaintext access requirements, and its 
deployment as a national strategy is fraught with technical challenges 
and dangers.

Required plaintext access systems will not satisfy government access 
        requirements
    Required plaintext access does not meet either law enforcement or 
national security requirements, but for slightly different reasons. Law 
enforcement can not verify compliance with key recovery requirements, 
and national security interests are unlikely to have access to stored 
keys.

Compliance can not be verified by law enforcement
    Required plaintext access has a serious technical flaw in the area 
of a priori verification of compliance. Encryption, if applied, is 
likely to be applied at several different levels of the communications 
infrastructure. An example is having link-level encryption applied by 
IPSEC, having session-level encryption applied by SSL, and having 
application-level encryption applied by S/MIME.
    Assuming one could construct a protocol to allow for the monitoring 
of IPSEC key recovery compliance, there is no physical way to verify 
that the other two levels have complied with the required plaintext 
access requirements unless one actually decrypts the IPSEC-data packet. 
If it requires probable cause to get a court order to obtain the IPSEC 
recovered key or mechanism, it would only be after law enforcement has 
probable cause of criminal activity that they would be able to verify 
whether or not the upper-level protocols have complied with the 
required plaintext access requirements.

Required plaintext access does not address national security 
        requirements
    While law enforcement may serve a warrant on a key recovery agent 
or other access mechanism provider to obtain encryption keys or the 
plaintext, national security interests are likely to have that 
opportunity. Required plaintext access does not provide any benefit to 
lawful access unless one is able to actually recover the plaintext. 
Targets of national security interests are unlikely to design a 
plaintext access infrastructure which would allow the U.S. government 
to have surreptitious access to stored keys or stored plaintext. This 
view has been born out by National Security Agency testimony before 
Congress.\13\

Required plaintext access systems are of limited commercial value
    Product announcements of key recovery companies to the contrary, 
there is not a compelling market for commercial key recovery systems 
and no market for other plaintext access systems. There is no general 
reason to recover communications keys, and the use of key recovery for 
stored data ignores the fundamental properties of information.
    A market for key recovery technology will emerge only when it is 
artificially created by government regulations. Prior to the current 
law enforcement push for key recovery, there were no widespread 
deployments of key recovery mechanisms even though the basic technology 
had been in existence for some time.

            Not required for data communications

    While key recovery may, debatably, be important in certain stored 
data systems, in communications cryptography there is little or no user 
demand for this feature. In particular, there is hardly ever a reason 
for an encryption user to want to recover the key used to protect a 
communication session such as a telephone call, FAX transmission, or 
Internet link. If such a key is lost, corrupted, or otherwise becomes 
unavailable, the problem can be detected immediately and a new key 
negotiated.\14\ There is also no reason to trust another party with 
such a key.

            Ignores the nature of stored data

    Many of the proposed needs for key recovery of stored data operate 
under a false assumption about how data is actually stored and 
utilized. The frequent example is the assertion that a company will 
need to recover the encrypted files of an employee who has been hit by 
a bus.
    There are three problems with this assertion. First, with the 
exception of personal notes, information is not solely possessed by an 
individual. Information is shared among a team of employees or partners 
in order to be of any benefit. Second, most mission-critical data is 
held by corporate data management systems (e.g., data bases) that have 
their own access control and protection mechanisms, which are 
administered by the corporation. Third, most personal data has a time 
value and rapidly becomes obsolete.
    Given the observations above, we conclude that there is no business 
or consumer need for key recovery. Indeed, taking into account the 
observations and risks, Intel does not plan to implement a key recovery 
scheme.

Key recovery introduces additional vulnerabilities
    Centralizing all of a user's secrets or access controls in a system 
with increased technological and procedural operational complexities 
can only increase the security vulnerabilities of the operation.

            Centralized attack point
    Regardless of the implementation, if key recovery systems must 
provide timely law enforcement access to a whole key or to plaintext, 
they present a new and fast path to the recovery of data that never 
existed before.
    The key recovery access path is completely out of the control of 
the user. In fact, this path to lawful access is specifically designed 
to be concealed from the encryption user, removing one of the 
fundamental safeguards against the mistaken or fraudulent release of 
keys.
    In contrast, non-recoverable systems can usually be designed 
securely without any alternative paths. Alternative paths to access are 
neither required for ordinary operation nor desirable in many 
applications for many users.\15\

            Complexity of implementation
    Key recovery systems must be, in terms of functionally, a secure, 
distributed, open key management system. They have many of the 
properties of both large scale distributed databases and of command and 
control systems. Both types of systems have significant inherent 
complexity. As we have no practical experience, key recovery mechanisms 
represent a system of unknown and potentially daunting complexity.\16\
    Commercial organizations would have to add the cost and risk of key 
recovery systems to their bottom line. Even government agencies 
participating in key recovery pilot programs have found the cost of 
centralized key recovery unacceptable.\17\

Key recovery mechanisms do not work in the horizontal information 
        industry
    The information technology industry is characterized by an open, 
international, horizontal architecture. Microprocessors are sold to 
OEMs who build motherboards, who then contract to have BIOSs and 
operating systems installed. The final product is then sold to an end 
user who adds whatever applications they wish. New capabilities or 
requirements must have an active acceptance within each of the layers 
in order to be widely deployed. Key recovery discussion has focused 
only on the upper, application layer.

            Low-level layers have no visibility into higher-level 
                    layers
    The nature of the information technology industry is that it is 
made-up of distinct horizontal architectural layers, from the 
microprocessor up through application programs. The components in each 
of these layers are supplied by different companies, having different 
economic models and different diffusion channels.
    For valid security reasons, cryptography is migrating further 
``down'' the layers toward the basic hardware. Key recovery, on the 
other hand, is a user-initiated protocol problem and can not be pushed 
down to the hardware. In short, cryptography implemented on hardware 
can not determine how it will ultimately be used.
    Key recovery is under the end user's control and is performed by 
communications protocols or applications programs. The original 
microprocessor could have no knowledge of how its cryptography would be 
used any more than it could know how its multiplication instructions 
will be used.
    Key recovery regulation is envisioned from the perspective of the 
end user. The end user ``sees'' a vertical single product, but the 
reality is that the PC is actually a collection of products from many 
different companies.

            Horizontal interfaces are international standards
    Within the horizontal architecture of the computer industry, the 
interfaces between horizontal layers are defined by established 
international industry standards. None of these interface standards 
currently support key recovery of keys stored in mass market hardware. 
To change these standards would be a slow and difficult process.
Key recovery does not work in an international setting
    The information technology industry is based on international 
standards. No U.S.-only solution is commercially feasible. Most U.S. 
information technology companies derive a large share of their revenue 
from non-U.S. sources. To restrict their products to only U.S. markets 
would be devastating.

            Not all countries will adopt key recovery
    Very few countries have embraced key recovery to the extent that 
the U.S. government has done. In particular, countries with strong 
privacy laws have generally regarded key recovery schemes as being in 
violation of those laws. As an example, Lotus Notes, which includes a 
key recovery feature, specifically lost a major sale to the Government 
of Sweden when the Swedish press discovered the key recovery 
feature.\18\
    The European Commission has not endorsed key recovery as a solution 
to lawful access problems. It is therefore unlikely that a European-
wide agreement can be reached. Indeed, the European Committee on 
Banking Standards (ECBS)--a powerful consortium of financial 
institutions--has filed a submission with the European Commission 
arguing against key recovery.\19\
            Requires modification to existing standards
    Data communications and architectural standards are 
internationally-negotiated standards. None of these standards include 
data recovery provisions. Products must be built to conform to these 
standards to become mass market products. Many of these standards are 
not controlled by any government, rather they are controlled by 
commercial or user communities (such as the IETF).
    Negotiating provisions for key recovery into these standards will 
require international--agreement on the form and procedures of key 
recovery technology. Given the current international climate, it is 
unlikely that such negotiations would succeed.\14\

            Interoperability will require a non-recovery mode
    If there is even one major country which prohibits key recovery, 
then all developed systems will have to have a ``non-key recovery'' 
mode to facilitate interoperability. There is little that one could do 
to ensure that the ``non-key recovery'' mode was not used in normal 
communications.

            Mutual access to keys opens U.S. companies to industrial 
                    espionage
    There is no way to guarantee that other countries will have the 
same level of constitutional safeguards on access to their key recovery 
agents as guaranteed in the U.S. U.S. corporations would be at high 
risk of international economic espionage if forced to deposit 
encryption keys with foreign key recovery agents.
    According to the FBI, U.S. corporations are already targets of 
major industrial espionage efforts. The FBI says foreign spies have 
stepped up their attacks on American companies, and a new national 
survey estimates that intellectual property losses from foreign and 
domestic espionage may have exceeded $300 billion in 1997 alone.\20\
    Governments of at least 23 countries, ranging from Germany to 
China, are targeting American companies, according to the FBI. More 
than 1,100 documented incidents of economic espionage and an additional 
550 suspected incidents that could not be fully documented were 
reported last year by companies in a survey conducted by the American 
Society for Industrial Security.\21\

  THE GOVERNMENT NEEDS TO FIND TECHNOLOGICAL ALTERNATIVES TO MEET ITS 
                 REQUIREMENTS FOR ACCESS TO INFORMATION

    Given the global availability of strong, non-recoverable encryption 
and the fast pace of technological advancement, it is clear that 
current U.S. policy is not working. An alternative means to gather 
lawful intelligence is needed by both national security and law 
enforcement interests.
    Clearly, Congress should adequately fund the technical efforts of 
our law enforcement and national security agencies so they can meet 
these challenges. And industry would support additional funding.
    For example, ACP, for example, has advocated that the U.S. 
Government should work cooperatively with our nation's hardware and 
software manufacturers to develop the technical tools and know-how to 
achieve a policy that effectively responds to society's needs for law 
enforcement, national security, critical infrastructure protection, 
privacy preservation, and economic well-being.
NET center proposal
    Last year, ACP proposed the creation of a National Center for 
Secure Network Communications (``NET Center''). The NET Center (now 
called ``Tech Center'') concept is 15 aimed at helping law enforcement 
officials to understand how to deal with encryption and other technical 
advances when encountered in a criminal setting.
    The Tech Center should be a public-private entity operating within 
a national laboratory for information technology to perform research 
and act as a forum for further discussions on technology trends and 
vulnerabilities. Clearly a Tech Center must operate within a legal 
framework that provides reasonable safeguards.
    Attorney General Janet Reno announced plans for the Federal Bureau 
of Investigation to set up a new $64 million center to protect the 
nation's critical infrastructures, particularly computer networks, from 
both physical and cyber attack.
Industry cooperation
    The national security is best secured by the American companies 
actively competing for and supplying the fundamental technologies of 
the national infrastructure. Only those companies directly involved in 
the research and development of information technology components can 
assess the security and vulnerabilities of the infrastructures created 
from those components. Technical innovation is predominantly centered 
in the private sector. Only a government/industry cooperation can 
effectively address the challenge of continued technological change.

 CONCLUSION: THE PROTECT ACT SHOULD BE PASSED WITH FURTHER IMPROVEMENTS

The mass market model
    Mass-market hardware manufacturers and software publishers sell 
products through multiple distribution channels such as OEMs (i.e., 
hardware manufacturers that pre-load software onto computers), value-
added resellers, retail stores and the emerging channel of on-line 
distribution. Thus, mass market products are available to the general 
public from a variety of sources.
    The mass-market distribution model presupposes that hardware 
manufacturers and software publishers will take full advantage of these 
multiple channels to ship identical or substantially similar products 
worldwide (allowing only for differences resulting from localization) 
irrespective of specific customer location or characteristics. As mass 
market products are uncontrollable, Intel believes U.S. companies 
should be able to export the current market standard of 128-bit 
encryption. Unfortunately, the Administration only permits easy exports 
of 56-bit encryption even if foreign products exist in the 
marketplace'. And the Administration continues to impose onerous 
controls on 56-bit toolkits and hardware encryption components, notably 
semiconductors.

The PROTECT Act grants export control relief to products at all 
        horizontal levels
    Intel believes that all distinct horizontal architectural layers, 
from the microprocessor up through application programs should be 
treated identically under any encryption export policy. However, 
contrary to the Administration's original announcement regarding export 
relief which included export relief for hardware, the new regulations 
still do not permit 56-bit encryption chips, integrated circuits, 
toolkits and executable or linkable modules to be easily exported 
except to subsidiaries of U.S. companies or otherwise relax export 
controls on stronger mass market hardware. We are pleased that the 
PROTECT Act remedies this problem and treats mass market hardware in 
the same manner as mass market software.

The PROTECT Act eliminates reporting requirements for mass market 
        products
    We are encouraged that the PROTECT Act recognizes the difficulties 
in complying with reporting requirements for mass market encryption 
products and eliminates such reporting requirements. It is virtually 
impossible for mass-market exporters to report the name and address of 
each end-user. Millions of these products are sold through multi-level 
distribution channels (e.g, VAR's and chain stores). Moreover, as 
registration of mass market products is customarily voluntary. This is 
a vast improvement over the Administration's proposed regulations which 
effectively require companies to develop a system to obtain the names 
and addresses for each health and medical end-user of stronger 
encryption products and all foreign online merchants.

The PROTECT Act's export relief for mass market products and for 
        products which face competition from comparable foreign 
        products is too complicated and creates an unwieldy bureaucracy
    We are pleased that the PROTECT Act does recognize that mass market 
and publicly available encryption products, and encryption products for 
which comparable foreign products are available, should be treated 
differently under the U.S. export regime. The bill acknowledges the 
futility of trying to control a product that can be bought off of the 
Internet or easily purchased from commercial vendors such as CompUSA or 
from Circuit City by any individual in America regardless of 
nationality, or a comparable product can be easily purchased from 
similar stores in a foreign country. ``Bad guys'' certainly will have 
no problems obtaining the encryption products, and no concerns about 
``exporting'' the products via telephone lines or the Internet or 
smuggled out on personally pressed CDs. The only impact of the export 
controls will be to stop American companies from selling American 
products to legitimate users.
    Unfortunately, the PROTECT Act establishes a complicated private/
public board structure for deciding after-the-fact whether or not a 
product is a mass market product or whether comparable foreign products 
are available. The Secretary of Commerce has thirty days to approve or 
disapprove the Board determination, subject to judicial review, and the 
President may override any determination. There is no guarantee of any 
consistency in the Board's decisions. Thus, while the Board procedure 
is an improvement, and the opportunity for judicial review provides a 
mechanism to ensure that exports are not denied in an arbitrary and 
capricious manner, it is not a predictable, clear process giving 
American companies certainty as to whether they can export their 
products. Such predictability is necessary so that American companies 
can have confidence designing and building security features into their 
products.
    The PROTECT Act should, but does not, afford complete and immediate 
export relief for mass market encryption without any complicated 
oversight. The Act also does not recognize that if a comparable foreign 
product is available, any delay in exports provides a significant 
advantage to the foreign product.

The PROTECT Act supports development of AES, but delays full export 
        control relief until 2002
    The PROTECT Act also provides Congressional support for, and sets a 
5-year limit on the selection of, the 128-bit Advanced Encryption 
Standard which is being developed under the auspices of the National 
Institute of Standards and Technology. The 2002 deadline will provide 
impetus for NIST to finish developing the standard in a timely manner 
while providing NIST with sufficient time to study the final standard's 
security features. This is an important process that will result in a 
new standard for government's sensitive, but unclassified, information 
and most likely will serve as the new worldwide standard for strong 
encryption similar to the Data Encryption Standard when it was 
introduced in the 1970's. Once the algorithm is selected, the PROTECT 
Act removes all export controls on encryption products using the 128-
bit standard or its equivalent strength.
    Unfortunately, because the PROTECT Act limits easy exportability of 
mass market products until the AES is adopted, general distribution of 
these products will have to wait almost three years. Considering the 
current speed of technological change, where Internet products are now 
on three-month product cycle times, and the fact that 128-bit 
comparable foreign encryption is currently available, this is an 
eternity in Internet time. Law enforcement and national security 
interests have known for a long time that ubiquitous use of strong 
encryption by consumers worldwide is just around the corner. They 
cannot hope to continue to delay the world from using strong encryption 
according to their timeframe.

A new approach
    The preceding has made the argument that:
     Encryption is essential to conducting all business in an 
Internet economy;
     Encryption is vital to securing America's critical 
infrastructures;
     The availability of encryption cannot be reasonably 
controlled;
     Government promoted or required plaintext access will not 
work; and
     The government needs to find technological alternatives to 
meet its requirements for access to information.
    If accepted, these arguments force one to the conclusion that a new 
approach to encryption policy is required.
                                endnotes
    \1\ Wall Street Journal, Department of Commerce talks about 
Inflation, 16 April 1998.
    \2\ Forrester Research
    \3\ Dataquest
    \4\ Ibid., p. 8.
    \5\ Marsh, R., Chairman, Critical Foundations: Protecting America's 
Infrastructure, The President's Commission on Critical Infrastructure 
Protection, October 1997.
    \6\ See http://www.swisspost.ch/E/21.html
    \7\ Schneier, B., Applied Cryptography, John Wiley & Sons, Inc., 
New York, NY, 1996.
    \8\ Schneier, B., Private correspondence, June 1998.
    \9\ Hayward, D., Europeans Break Encryption Barriers, TechWire, 17 
June 1997.
    \10\ Ministry of Research and Information Technology Denmark for 
the European Commission Directorate-General XIII Telecommunications, 
Information Market and Exploitation of Research, Report of Day 1 of the 
European Expert Hearing on Digital Signatures and Encryption 
(Copenhagen, April 23, 1998), Copenhagen, Denmark, 23-24 April 1998
    \11\ Siemens Nixdorf, Press Release, http://www.trustedweb.com/
whats--new/pressrelease.html, Hanover, Germany.
    \12\ Burnahm, B., The Electronic Commerce Report, Piper Jaffray 
Research, p. 75, August 1997.
    \13\ Crowell, W., Deputy Director National Security Agency, 
Testimony before Senate Commerce Committee, 1997.
    \14\ Neumann, P., et.al., The Risks of Key Recovery, Key Escrow, 
and Trusted Third Party Encryption, Final Report of The Cryptographers' 
Working Group, 27 May 1997.
    \15\ Ibid.
    \16\ Ibid.
    \17\ Wayner, P., Administration Gets Sour Taste From Own Encryption 
Medicine, New York Times, 1 July 1997.
    \18\ Laurin, F., and Froste, C., Secret Swedish E-Mail Can Be Read 
by the U.S.A., Svenska Dagbladet, 18 Nov 1997.
    \19\ Computing, Banks Slam Snoops, 26 March 1998.
    \20\ Nelson, J., FBI: Commercial Spying Rises, Los Angeles Times, 
12 January 1998.
    \21\ Ibid.

    Senator Frist. Thank you very much.
    Mr. Bidzos.

  STATEMENT OF D. JAMES BIDZOS, VICE CHAIR, SECURITY DYNAMICS 
                       TECHNOLOGIES, INC.

    Mr. Bidzos. Thank you, Mr. Chairman. Let me also thank you 
and the committee for the opportunity to be here and testify 
this morning. At the outset, I want to say that the PROTECT Act 
definitely moves us in the right direction and is a real 
improvement over the current administration policy, but, as I 
will explain in a few moments, the bill could be further 
improved in several important respects.
    I am pleased to be here this morning and testify on behalf 
of Americans for Computer Privacy. ACP is a coalition of over 
4,000 individuals, 40 trade associations, and over 100 
companies representing financial services, manufacturing, high 
tech, transportation industries, as well as law enforcement, 
civil liberty, taxpayer, and privacy groups.
    Currently I am vice chairman of Security Dynamics 
Technologies, but during the last 13 years I served as 
president and chief executive officer of RSA Data Security. RSA 
Data Security is the leading American company producing 
encryption products. It was founded in 1982 and our encryption 
technology is embedded in virtually every mainstream product, 
from things such as Microsoft Windows to Netscape's Navigator, 
also Microsoft's browser Internet Explorer, Intuit's Quicken, 
and Lotus Notes. It is very widespread. Most of it is 128 bits.
    I am also the founder and chairman of a company called 
Verisign, which is the leader in Internet authentication and 
certification, and I am a director of several other security 
companies, including two in Japan and two in Europe. I think 
this has given me unique insight into the global encryption 
issue.
    I have been deeply involved in the debate over encryption 
policy during this time and hope my experience can benefit the 
committee. I testified for the first time about 10 years ago 
before the House Committee on Science, Space, and Technology, 
and made many of the arguments that we are hearing here today.
    I used to joke that encryption, the type of encryption that 
my company developed, was a solution in search of a problem. I 
do not say that any more because the problem is obvious and we 
have discovered it. Quite simply, it is e-commerce. E-commerce, 
however, is not going to reach its full potential unless it 
becomes secure. That would be a tremendous disappointment since 
electronic commerce between businesses alone is expected to 
reach over $300 billion per year by the year 2002. At least 60 
percent of all Americans will be using the Internet and the 
number of worldwide online users is expected to reach 250 
million by the year 2002.
    Without relaxation of export controls, U.S. manufacturers 
remain at a competitive disadvantage and foreign consumers will 
purchase encryption products from foreign suppliers. Just in 
reaction to a comment made on the other panel, I would welcome 
the opportunity after my statement to go into more detail, but 
I think that the Administration underestimates the 
determination and the capabilities of the companies that we 
compete with overseas.
    Foreign products are comparable in capabilities and 
quality, and do not let anyone tell you otherwise. When a 
foreign purchaser cannot obtain an American product, they 
simply purchase it from a foreign supplier. The Siemens example 
we heard about is a good one. There are numerous others. 
Indeed, foreign companies are even testifying against 
relaxation of U.S. export controls.
    Unfortunately, not only are American companies losing the 
sale of an encryption item, but they are also using a sale of 
the program or hardware, such as an Internet server or an 
application browser, that incorporates the encryption 
capability. In fact, companies risk losing sales of entire 
systems because of their inability to provide necessary 
security features.
    Over the last 13 years I have seen security move from 
literally out of nowhere to being No. 1, No. 2, or No. 3 on 
everybody's list of absolutely critical essential features in 
products and systems that they intend to purchase. Companies 
that cannot offer that essential feature are cut out of the 
entire business opportunity.
    Thus, the only impact of the Administration's export policy 
is widespread deployment of foreign-designed and manufactured 
software and hardware.
    But I think it is also essential to understand that full 
deployment of strong encryption is vital to America's national 
interest. ACP and its members are responsible citizens. We have 
no wish to facilitate the commission of crime or hurt national 
security. It is precisely because we hold these views that we 
believe it is in America's best interest to prevent crime and 
promote national security through widespread reliance on strong 
American encryption products both here and abroad.
    We also believe that our law enforcement and intelligence 
agencies must be given the additional resources and technical 
help they need to meet the challenge of the next century. But 
those challenges are far greater if these agencies are forced 
to face a world in which the majority of information and 
communications systems--communications pass over systems and 
networks that are foreign-designed, foreign-built, foreign-
installed, and incorporate foreign encryption. That may well 
apply to systems here in the United States as well, based on 
the way things are going now.
    The PROTECT Act is an improvement over current 
administration policy. It affirms that Americans may use and 
sell any type of encryption domestically and ensures that the 
U.S. Government may not use its full powers and capabilities to 
compel Americans to use or sell a certain type of encryption. 
The PROTECT Act also provides a broader range of export relief 
for American encryption products and it provides a certain 
timeframe for export reviews. Also, the Act provides 
congressional support for and sets a 5-year limit on the 
selection of the 128-bit Advanced Encryption Standard.
    But even a good thing can be made better. The PROTECT Act 
should be further improved to reflect market and technological 
realities. The PROTECT Act does not permit individual foreign 
consumers to obtain strong non-recoverable encryption, making 
it impossible for them to securely purchase products from 
American companies.
    Also, the Act does not provide immediate export relief for 
encryption sales to small businesses, one of the fastest 
growing worldwide business sectors. Unfortunately, the PROTECT 
Act limits easy exportability of mass market products with 
strong 128-bit encryption until NIST adopts the Advanced 
Encryption Standard. Exportability in the mean time is 
dependent on an unwieldy complex bureaucracy that will 
determine whether American products are generally available or 
compete with comparable foreign products. We believe the 
evidence is already overwhelming regarding these facts.
    I would be happy to answer any questions about the 
significance of this 3-year delay in terms of how our 
competitors will exploit it and how that translates into 
Internet years and what it means for future opportunities.
    In conclusion, Mr. Chairman, ACP strongly urges the 
committee to move forward with the PROTECT Act and to adopt 
amendments to permit the immediate exportability of strong 
encryption to a broader range of businesses and individuals 
abroad.
    Thank you.
    [The prepared statement of Mr. Bidzos follows:]

 Prepared Statement of D. James Bidzos, Vice Chair, Security Dynamics 
                           Technologies, Inc.

    Congress must immediately relax export controls on software and 
hardware with encryption capabilities. Widespread deployment of 
American products with encryption capabilities will help to accelerate 
dramatically the growth of electronic commerce by protecting consumers' 
privacy and preventing electronic crime.
    Without relaxation of export controls, U.S. manufacturers remain at 
a competitive disadvantage, and foreign consumers will purchase 
encryption products from foreign suppliers. Foreign products are 
comparable in capabilities and quality. When a foreign purchaser cannot 
obtain an American product they simply purchase it from a foreign 
supplier. Unfortunately, not only are American companies losing a sale 
of an encryption item, but they are also losing the sale of the program 
or hardware such as an Internet server or an application browser that 
uses the encryption capability. In fact, companies risk losing sales of 
entire systems because of their inability to provide necessary security 
features. The only impact of the Administration's export policy is 
widespread deployment of foreign designed and manufactured software and 
hardware.
    The Administration took the first step towards developing a 
sensible long-term encryption policy by permitting exports of select 
products to select users, but they still have not gone far enough.
    The PROTECT Act is an improvement over current Administration 
policy. It affirms that Americans may use and sell any type of 
encryption domestically, and ensures that the U.S. Government may not 
use its full powers and capabilities to compel Americans to use or sell 
a certain type of encryption. The PROTECT Act also provides a broader 
range of export relief for American encryption products and provides a 
certain timeframe for the export review process. Also, the Act provides 
Congressional support for, and sets a 5-year limit on the selection of, 
the 128-bit Advanced Encryption Standard.
    The PROTECT Act should be further improved to reflect market and 
technological realities. The PROTECT Act does not permit individual 
foreign consumers to obtain strong, non-recoverable encryption, making 
it impossible for them to securely purchase products from American 
companies. Also, the Act does not provide immediate export relief for 
encryption sales to small businesses--one of the fastest growing 
worldwide business sectors.
    Unfortunately, the PROTECT Act limits easy exportability of mass 
market products with strong 128-bit encryption until NIST adopts the 
Advanced Encryption Standard. This means individual consumers and small 
businesses will have to wait three years to obtain strong American 
encryption, and foreign companies will have had three more years to 
market their products. Exportability in the meantime is dependent on an 
unwieldy complex bureaucracy that will determine whether American 
products are generally available or compete with comparable foreign 
products. We believe the evidence already is overwhelming regarding 
these facts.

                              INTRODUCTION

    Good Morning. My name is Jim Bidzos, and I am Vice Chair of 
Security Dynamics Technologies, Inc., a Massachusetts-based security 
firm that is also the parent company of RSA Data Security, located in 
San Mateo, California. For over 13 years, until earlier this year, I 
was the President and CEO of RSA Data Security, the world's leading 
encryption company.
    RSA's technology is embedded in both Netscape and Microsoft 
browsers, and in over 500 other products, all used by hundreds of 
millions of people around the world to secure internet transactions and 
digital data of many types. Over many years, I have personally 
negotiated hundreds of licenses to RSA encryption technology, including 
licenses with companies such as IBM, Microsoft, ATT, Netscape, Oracle, 
and Motorola. These negotiations almost always involve discussions 
about encryption needs, end-user requirements, and export policy. I 
have thus gained unique insights into the needs and concerns of both 
industry and users with respect to encryption.
    I am also founder and chairman of Verisign, Inc., the leader in 
Internet authentication. Verisign is the world's largest Internet 
security products and services company as measured by both customers 
and market capitalization.
    I am a member of the board of directors of several other security 
companies. One specializes in virtual private networks. Another is a 
manufacturer of security tokens. Another offers cryptographically 
secure digital time stamping services. I am also a director of a UK-
based encryption hardware company, a Dublin-based secure electronic 
payments company, and two Japanese security companies.
    I have been deeply involved in the debate over encryption, from 
many aspects, including US policy on the export of this technology. 
Over the last 13 years, I have testified many times before both the 
House and Senate on encryption policy, and I have participated in 
numerous US and international standards activities.
    I believe that my long and unique history in the encryption area 
allows me to offer testimony today that may help the committee better 
understand industry's concerns over US encryption policy.
    On behalf of Americans for Computer Privacy (``ACP''), thank you 
for the opportunity to testify on S.798, the PROTECT Act, sponsored by 
Chairman McCain and cosponsored by four other committee members 
Senators Bums, Wyden, Abraham, and Kerry.
    ACP is a coalition of over 3,500 individuals, 40 trade associations 
and over 100 companies representing financial services, manufacturing, 
high-tech, and transportation industries as well as law enforcement, 
civil-liberty, taxpayer and privacy groups. ACP supports policies that 
allow American citizens to continue using strong encryption without 
government intrusion, and advocates the lifting of export restrictions 
of U.S. made encryption products.
    But we really are here today to speak on behalf of the tens of 
millions of users of American software and hardware products. The 
American software and hardware industries have succeeded because we 
have listened and responded to the needs of computer users worldwide. 
We develop and sell products that users want and for which they are 
willing to pay.
    One of the most important features computer users are demanding is 
the ability to protect their electronic information and to interact 
securely worldwide. American companies have innovative products which 
can meet this demand and compete internationally. But there is one 
thing in our way--the continued application of overbroad, unilateral, 
export controls by the U.S. Government.
    At the outset, I want to say that the PROTECT Act definitely moves 
us in the right direction and is a significant improvement over the 
Administration's current policy--but it could be further improved in 
several important respects (along the lines of the SAFE Act).
    ACP recognizes a legitimate governmental need to obtain access to 
information and communications when authorized by proper legal 
authority. ACP and its members are responsible citizens. We have no 
wish to facilitate the commission of crime or the spread of terrorism. 
Similarly, we are committed to strengthening the nation's 
infrastructure and promoting national security, enhancing the privacy 
of American citizens and ensuring the security of electronic commerce.
    But we believe that the best way of meeting all these objectives is 
promote the widespread use of encryption!
    Ultimately, any truly successful, sensible encryption policy that 
has America's best interests at heart must be based on technological 
and market realities, and should not create winners and losers in the 
encryption marketplace on a sector-by-sector basis. It would recognize 
that:
     The worldwide encryption standard is 128-bit encryption;
     Mass market software and hardware is inherently 
uncontrollable; and
     It is in America's national and economic security 
interests to have American designed and manufactured encryption 
products deployed worldwide.
    We believe it is preferable for Congress to put encryption policy 
on a statutory basis rather than continuing to leave it up to 
inconsistent Administration regulations--sending a strong message 
around the world that encryption is important for protecting the 
privacy of citizens, for promoting e-commerce, preventing crime and 
protecting our critical infrastructures and national defense.

  THE AMERICAN COMPUTER SOFTWARE AND HARDWARE INDUSTRIES--AN AMERICAN 
                             SUCCESS STORY

    The computer software and hardware industries are American success 
stories, but they are being threatened. America's software and hardware 
industries are important contributors to U.S. economic security. 
Information technology industries now are directly responsible for over 
one-third of real growth of the U.S. economy, and both the computer and 
software industries are continuing to grow. From 1990 through 1996, the 
software industry grew at a rate of 12.5%, nearly 2.5 times faster than 
the overall U.S. economy.
    More than 7 million people work in IT industries. In 1996, the 
software industry provided a total of over 619,000 direct jobs and $7.2 
billion in tax revenues for the U.S. economy. The software industry is 
expected to create an average of 45,700 new jobs each year through 
2005. If piracy were to be eliminated in the United States, the number 
of new software jobs created would double to an average of 93,000 a 
year.
    Moreover, the computer software industry has achieved tremendous 
success in the international marketplace with global sales of packaged 
(i.e., non-custom) software reaching over $118.4 billion in 1996, and 
rising to $135.4 billion in 1997. American produced software accounts 
for 70% of the world market, with exports of U.S. programs constituting 
half of the industry's output.
    The incredible growth of the industry and its exporting success 
benefits America through the creation of jobs here in the United 
States. Many of these jobs are in highly skilled and highly paid areas 
such as research and development, manufacturing and production, sales, 
marketing, professional services, custom programming, technical support 
and administrative functions. In the U.S. software industry, workers 
enjoy more than twice the average level of wages across the entire 
economy--$57,319 versus $27,845 per person.
    All of these revenues and jobs are dependent upon American software 
and hardware producers remaining the market leaders around the world, 
especially as the major growth markets continue to be outside the 
United States. Strong export controls on products with encryption 
capabilities are crippling the ability of these companies to compete 
with foreign providers and are only ensuring that foreign products are 
securing worldwide critical infrastructures, not American products.

 SECURE NETWORKS AND CONFIDENTIAL INFORMATION IN THE INTERNET AGE ARE 
                    THE KEY TO PRIVACY AND COMMERCE

    American individuals and companies are rapidly becoming networked 
together through private local area networks (LANs), wide area networks 
(WANs) and public networks such as the Internet. Combined, these 
private and public networks are the economic engine driving electronic 
commerce, transactions and communications. This engine is sputtering 
and threatens to stall.
    Traffic on the Internet doubles every 100 days. Predictions of 
business-to-business Internet commerce for the year 2000 range from $66 
billion to $171 billion, and by 2002, electronic commerce between 
businesses is expected to reach $300 billion. During 1997, one leading 
manufacturer of computer software and hardware sold $3 million per day 
online for a total of $ 1.1 billion for the year.
    More and more individual consumers also are going on line arid 
spending. Five years from today, we anticipate nearly 60 percent of all 
Americans to be using the Internet. More than 10 million people in 
North America alone have already purchased something over the Internet, 
and at least 40 million have obtained product and price information on 
the Internet only to make the final purchase off-line. Altogether last 
year, consumers spent nearly $8 billion online. Nearly 1.5 million 
Americans join the online population every month, and the number of 
worldwide online users is expected to reach 248 million by 2002.
    The incredible participation by American consumers in the Internet 
phenomenon clearly demonstrates that the need for strong encryption is 
no longer merely the purview of our national security agencies 
concerned about securing data and communications from interception by 
foreign governments. Today, every American even merely dabbling on the 
Internet requires access to strong encryption. Imagine the boost in 
volume of e-commerce if all of these consumers had enough confidence in 
the security of the Internet to purchase on-line. Yet in 1996 the 
Computer Security Institute/FBI Computer Crime Survey indicated that 
our worldwide corporations will be increasingly under siege: over half 
from within the corporation, and nearly half from outside of their 
internal networks.
    Network users must have confidence that their communications and 
data--whether personal letters, financial transactions or sensitive 
business information--are secure and private. Electronic commerce is 
transforming the marketplace--eliminating geographic boundaries and 
opening the world to buyers and sellers. Companies, governments and 
individuals now realize that they can no longer protect data and 
communications from others by relying on limiting physical access to 
computers and maintaining stand-alone centralized mainframes. Instead, 
users expect to be able to pick up their e-mail or modify a document 
from any computer anywhere in the world simply by using their Internet 
browsers. Thus, consumers worldwide are demanding to be able to protect 
their electronic information and interact securely worldwide, and 
access to products with strong encryption capabilities has become 
critical to providing them with confidence that they will have this 
ability.

        UNILATERAL U.S. EXPORT CONTROLS HARM AMERICAN INTERESTS

    Currently, there are no restrictions on the use of cryptography 
within the United States. However, the U.S. Government maintains strict 
unilateral export controls on computer products that offer strong 
encryption capabilities.
    American companies are forced to limit the strength of their 
encryption to the 56-bit key length level set late in 1998. The 
recently announced regulations will also permit companies to export 
stronger encryption on a sector-by-sector, user-by-user basis. However, 
this policy ignores the fact that:
     The minimum strength now required by new Internet 
applications is 128-bit encryption;
     American companies cannot export encryption products to a 
vast majority of non-U.S. commercial entities. Foreign manufacturers 
provide 128-bit encryption alternatives and add-ons--filling the market 
void created by U.S. export controls;
     Providing sector-by-sector relief is unworkable for mass 
market products and does not reflect commercial realities for sales of 
custom products;
     56-bit encryption has been demonstrated to be vulnerable 
to commercial let alone governmental attack. (In the beginning of this 
year at the RSA Encryption Conference, a 56-bit DES encoded message was 
broken by private companies and individuals working together in 22 
hours and 15 minutes--imagine what a hostile government with serious 
resources could do); and
     New developments in technology are introduced everyday 
that speed up decryption time. Adi Shamir, the Israeli computer 
scientist who is the ``S'' in RSA, recently announced ``Twinkle'', 
which is a proposed method for quickly unscrambling computer-generated 
codes that have until now been considered secure, at the International 
Association for Cryptographic Research's latest meeting in Prague.

     THE WASSENAAR ARRANGEMENT IS NOT A MULTILATERAL AGREEMENT TO 
                           CONTROL ENCRYPTION

    I want to take one minute to discuss the Wassenaar Arrangement at 
this point. Please do not be fooled by any claims from the 
Administration that the Wassenaar Arrangement is the multilateral 
agreement on encryption that they have been touting was just around the 
corner for the past several years.
    The Wassenaar Arrangement replaced the old COCOM regime with a non-
binding agreement among 30 countries to report on their sensitive 
exports. The December 1998 Wassenaar Arrangement agreement actually 
decontrolled encryption products. Many countries, such as Israel and 
South Africa, who export strong encryption are not signatories to the 
Arrangement. The Wassenaar Arrangement eliminates controls of any sort 
on 56-bit encryption and permits exports of up to 64-bit encryption in 
mass-market software and hardware. It also removed any reporting 
requirements--the sole official means for actually monitoring what 
countries are doing. Although the Arrangement left open the possibility 
that countries might individually control 128-bit encryption, we are 
skeptical that they will do so. There is no penalty for failing to 
control 128-bit encryption, and most countries are actually moving 
towards encouraging the use of stronger encryption. Finally, a country 
could technically comply with the Arrangement, while still permitting 
easy exports of strong encryption.
    Ironically, the U.S. government is a good example of the lack of 
effect of the Wassenaar Arrangement. In its new encryption regulations, 
the Administration is still controlling encryption products with 
greater than 56, not 64, bit keys, and they have imposed reporting 
requirements on mass market products even if they are using 64-bit 
encryption.
    Recently, on June 2, 1999, the German government established a new 
encryption policy seeking to improve protection of German users of 
global information networks and clarifying that any encryption product 
may be developed, produced marketed and used without restrictions in 
Germany. The German government declared its intention to simplify their 
export review process and to strengthen the performance and ability of 
German manufacturers to compete internationally. The German government 
will monitor abuses of encryption for illegal purposes and attempt to 
further improve the technical capabilities of German law enforcement 
and security agencies to handle advances in encryption technology.
    Even France, traditionally the country which placed the greatest 
restrictions on its own citizens by limiting them to the easily broken 
40-bit level of encryption, has recognized that technology has 
progressed. Near the end of 1998, France relaxed controls on the 
domestic use of encryption and is now permitting, and in fact 
encouraging, the use of 128-bit encryption by its citizens.

 WITHOUT EXPORT RELIEF, FOREIGN CONSUMERS WILL PURCHASE THEIR PRODUCTS 
  FROM FOREIGN SUPPLIERS, KEEPING U.S. MANUFACTURERS AT A COMPETITIVE 
                              DISADVANTAGE

    Export controls also have made American companies less competitive 
and opened the door for foreign software and hardware developers to 
gain significant market share--decreasing our national and economic 
security.
    As a result of U.S. unilateral export controls, encryption 
expertise is being developed off-shore by foreign manufacturers who now 
provide hundreds of encryption alternatives and add-ons. The 
Administration's export controls are in no way preventing foreigners, 
let alone those with criminal intent, from obtaining access to 
encryption products. In fact, foreign software and hardware 
manufacturers have seized the opportunity to create sophisticated 
encryption products and to capture sales.
    As long ago as 1995, the General Accounting Office confirmed that 
sophisticated a encryption software is widely available to foreign 
users on foreign Internet sites. In 1996, a Department of Commerce 
study again confirmed the widespread availability of foreign 
manufactured encryption programs and products. Professor Hoffman today 
releases the results of his latest survey which shows the continuing 
growth in foreign encryption products in the face of U.S. export 
controls.
    If an encryption product is combined with other applications such 
as Internet browsers and application servers, U.S. companies generally 
will lose both sales. In fact, companies risk losing sales of entire 
systems because of inability to provide necessary security features. 
This permits foreign manufacturers to gain entry into companies as well 
as gain credibility--providing the foreign manufacturers with further 
opportunity to take away future sales in the same and other product 
lines.

U.S. ENCRYPTION EXPORT CONTROLS HURT AMERICAN COMPANIES WITHOUT HELPING 
                  LAW ENFORCEMENT OR NATIONAL SECURITY

    U.S. export controls have had the effect of creating an encryption 
expertise outside the United States that is gathering momentum. 
Unfortunately, every time research and development of an encryption 
technique or product moves off-shore, U.S. law enforcement and national 
security agencies lose. We believe that continuing down this path will 
be ultimately more harmful to our national security and law enforcement 
efforts as American companies will no longer be the world leaders in 
creating and developing encryption products.
    In fact, as long ago as 1996, the NRC Committee concluded that as 
demand for products with encryption capabilities grows worldwide, 
foreign competition could emerge at levels significant enough to damage 
the present U.S. world leadership in information technology products. 
The Committee felt it was important to ensure the continued economic 
growth and leadership of key U.S. industries and businesses in an 
increasingly global economy, including American computer, software and 
communications companies. Correspondingly, the Committee called for an 
immediate and easy exportability of products meeting general commercial 
requirements--which is currently 128-bit level encryption!
    To summarize:
     Foreign competitors not subject to outdated U.S. export 
controls are ready to take sales and customers from U.S. companies 
today.
     Complex and cumbersome U.S. export controls make American 
companies less competitive. They significantly increase the costs of 
developing, marketing and selling products with encryption 
capabilities, delay the introduction of new products or features, and 
encourage foreign customers to purchase from foreign suppliers due to 
the uncertainty and delay in obtaining a comparable American product.
     Current export controls do not keep strong encryption out 
of the hands of foreign customers; they just keep U.S. products out of 
their hands.
     In the future, if export controls on encryption are not 
relaxed, both American and foreign infrastructures will be secured by 
foreign encryption products, creating a significant problem for 
American law enforcement and national security agencies.
    American companies do have exciting and innovative products that 
can meet the demand for 128-bit encryption and compete internationally. 
But unless the current unilateral U.S; export restrictions are changed 
to allow the use of strong encryption, American individuals and 
businesses will not be active participants in this new networked world 
of commerce--let alone continue to be the leaders in its development. 
Furthermore, American companies will no longer be providing the world, 
and its critical infrastructures, with the answers to their security 
problems. Instead foreign companies will. It is unclear how U.S. 
national security or law enforcement will be aided or how our critical 
infrastructures will be secure when foreign encryption products 
dominate the world market.

                           THE BERNSTEIN CASE

    The absurdity of the existing export control regime is further 
highlighted by the recent decision of the 9th Circuit Court of Appeals 
in Bernstein v. DOJ. In that case, the court held that the existing 
restrictions on the export of source code, the language in which 
programmers communicate their ideas to one another, are an 
unconstitutional prior restraint on first amendment rights of free 
speech. So now we have a situation where it is permissible to export 
jobs (because one can export source code to teach foreign programmers), 
but not American products (because one cannot embody that source code 
in a product)!
    More generally, Judge Fletcher's opinion raises some very valid, 
more general questions and points out how important encryption is to 
the mainstream life of Americans rather than merely to obscure 
technologists. Judge Fletcher states:

          In this increasingly electronic age, we are all required in 
        our everyday lives to rely on modern technology to communicate 
        with one another. This reliance on electronic communication, 
        however, has brought with it a dramatic diminution in our 
        ability to communicate privately. Cellular phones are subject 
        to monitoring, email is easily intercepted, and transactions 
        over the internet are often less than secure. Something as 
        commonplace as furnishing our credit card number, social 
        security number, or bank account number puts each of us at 
        risk. Moreover, when we employ electronic methods of 
        communication, we often leave electronic ``fingerprints'' 
        behind, fingerprints that can be traced back to us. Whether we 
        are surveilled by our government, by criminals, or by our 
        neighbors, it is fair to say that never has our ability to 
        shield our affairs from prying eyes been at such a low ebb. The 
        availability and use of secure encryption may offer an 
        opportunity to reclaim some portion of the privacy we have 
        lost. Government efforts to control encryption thus may well 
        implicate not only the First Amendment rights of cryptographers 
        intent on pushing the boundaries of their science, but also the 
        constitutional rights of each of us as potential recipients of 
        encryption's bounty. Viewed from this perspective, the 
        government's efforts to retard progress in cryptography may 
        implicate the Fourth Amendment, as well as the right to speak 
        anonymously, . . ., the right against compelled speech, . . ., 
        and the right to informational privacy. While we leave for 
        another day the resolution of these difficult issues, it is 
        important to point out that Bernstein's is a suit not merely 
        concerning a small group of scientists laboring in an esoteric 
        field, but also touches on the public interest broadly defined.

    THE ADMINISTRATION TOOK A SMALL FIRST STEP TOWARDS DEVELOPING A 
SENSIBLE LONG-TERM ENCRYPTION POLICY, BUT THEY STILL HAVE NOT GONE FAR 
                                 ENOUGH

    Progress was made last year in the new Administration policy 
announced by the Vice President in September and contained in the 
interim final regulations of December 31, 1998.
    ACP welcomed the Administration's efforts to relax export controls 
on select products used by select users. We especially appreciated the 
Administration's apparent abandonment of its key escrow policy that 
would have required all encryption exports (except for 40-bit and less 
encryption) to be capable of providing third parties with immediate 
access to the plaintext of stored data or communications without the 
knowledge of the user. Foreign companies and consumers simply would not 
purchase such products as a multitude of foreign products without key 
escrow are readily available.
    However, the Administration's actions are merely a first step. U.S. 
export controls still ignore the realities of mass-market software and 
hardware distribution. Mass-market software publishers and hardware 
manufacturers sell products through multiple distribution channels such 
as OEMs (ie., hardware manufacturers that pre-load software onto 
computers), value-added resellers, retail stores and the emerging 
channel of on-line distribution. Thus, mass market products are 
available to the general public from a variety of sources. (It also is 
why continued reporting requirements about end-uses and end-users make 
no sense.)
    The mass-market distribution model presupposes that software 
publishers and hardware manufacturers will take full advantage of these 
multiple channels to ship identical or substantially similar products 
worldwide (allowing only for differences resulting from localization) 
irrespective of specific customer location or characteristics. As mass 
market products are uncontrollable, ACP believes U.S. companies should 
be able to export the current market standard of 128-bit encryption. 
Unfortunately, the Administration has only proposed permitting easy 
exports of 56-bit encryption even if foreign products exist in the 
marketplace.
    ACP also believes that encryption hardware and software should be 
treated identically. However, contrary to the Administration's original 
announcement regarding export relief which included export relief for 
hardware, the new regulations still do not permit 56-bit encryption 
chips, integrated circuits, toolkits and executable or linkable modules 
to be easily exported except to subsidiaries of U.S. companies or 
otherwise relax export controls on stronger mass market hardware.
    In addition, ACP believes that the new regulations are so complex 
and contain unrealistic requirements that they undermine many of the 
benefits of the Administration's export relief for stronger encryption, 
especially for mass market hardware and software. U.S. companies are 
now required to meet a number of new, unilateral reporting 
requirements. For example, exporters now are required to report the 
name and address of end-users, a virtual impossibility for mass-market 
exporters because registration of end-users is customarily voluntary. A 
system to obtain the names and addresses of each of the millions of 
potential health care end-users, for example, would cost more than the 
profits yielded from many products.
    ACP also is disappointed that the Administration's regulations do 
not clearly provide online merchants with the level of export control 
relief originally envisioned as they do not permit ISPs to provide 
``services'' as a permissible end-use. This could chill the use by ISPs 
located abroad of U.S.-origin encryption products for billing, payment, 
and delivery purposes, despite the widespread foreign availability of 
such products.

  THE PROTECT ACT IS AN IMPROVEMENT OVER CURRENT ADMINISTRATION POLICY

The PROTECT Act Establishes The Correct Domestic Encryption Policy
    The PROTECT Act affirms that Americans may use and sell any type of 
encryption domestically. Even more importantly, the PROTECT Act ensures 
that the U.S. Government may not use its full powers and capabilities 
to compel, directly or indirectly, Americans to use or sell a certain 
type of encryption. This will prevent the U.S. Government from 
attempting to achieve domestic controls on encryption through 
regulations or ``incentives''.
    For example, the Act prohibits the U.S. Government from linking the 
ability to electronically sign a document to a requirement that the 
consumer use a particular encryption methodology for ensuring 
confidentiality. Thus, the U.S. Government cannot require Americans to 
use a certain type of encryption (such as key escrow) to engage in 
electronic commerce.
    Also, the PROTECT Act specifically restricts the government from 
requiring any American to use a particular encryption product or 
methodology to communicate with or transact business with the 
government. The U.S. Government may only specify technologies for its 
own internal uses.

The PROTECT Act Provides Additional Export Relief For Encryption 
        Products
    The PROTECT Act provides a broader range of export relief for 
American encryption products than the Administration. We are pleased 
that the PROTECT Act provides immediate export relief after a one-time 
review by the government for:
     All encryption products using key lengths of 64-bits or 
less rather than the less secure 56-bit key lengths proposed by the 
Administration;
     All recoverable encryption products regardless of key 
length, including telecommunications related products; and
     All encryption products using key lengths greater than 64-
bits to certain legitimate and responsible commercial users, including 
publicly traded firms, firms subject to government regulation, U.S. 
companies' foreign subsidiaries, affiliates and strategic partners, on-
line merchants who use encryption products to support electronic 
commerce, and foreign governments who are members of NATO, OECD and 
ASEAN.
    We are also pleased that the PROTECT Act recognizes the need for a 
quicker and more certain timeframe for the export review process. 
Businesses simply cannot live with the U.S. Government taking between 3 
to 6 months to determine whether a product is exportable when many 
Internet products have 90 day product cycles and most businesses do not 
want to wait through one or two business quarters to update their 
computer systems.

The PROTECT Act Begins To Recognize Mass Market Product Realities
    We also are encouraged that the PROTECT Act recognizes the 
difficulties in complying with reporting requirements for mass market 
encryption products and eliminates such reporting requirements. It is 
virtually impossible for mass-market exporters to report the name and 
address of each end-user. Millions of these products are sold through 
multi-level distribution channels (e.g., VAR's and chain stores). 
Moreover, as registration of mass market products is customarily 
voluntary. This is a vast improvement over the Administration's 
proposed regulations which effectively require companies to develop a 
system to obtain the names and addresses for each health and medical 
end-user of stronger encryption products and all foreign online 
merchants.
    The PROTECT Act also provides Congressional support for, and sets a 
5-year limit on the selection of, the 128-bit Advanced Encryption 
Standard which is being developed under the auspices of the National 
Institute of Standards and Technology. The 2002 deadline will provide 
impetus for NIST to finish developing the standard in a timely manner 
while providing NIST with sufficient time to study the final standard's 
security features. This is an important process that will result in a 
new standard for government's sensitive, but unclassified, information 
and most likely will serve as the new worldwide standard for strong 
encryption simiiar to the Data Encryption Standard when it was 
introduced in the 1970's. Once the algorithm is selected, the PROTECT 
Act removes all export controls on encryption products using the 128-
bit standard or its equivalent strength.

   THE PROTECT ACT SHOULD BE FURTHER IMPROVED TO REFLECT MARKET AND 
                        TECHNOLOGICAL REALITIES

The PROTECT Act Does Not Provide Immediate Export Relief For Indi-
        vidual Consumers
    The PROTECT Act does not go far enough to protect the millions and 
millions of consumers that are now engaging in electronic commerce. 
Foreign consumers still will not be able to obtain an American Internet 
browser with strong, non-recoverable encryption, making it impossible 
for them to securely purchase products from American companies. Also, 
an everyday foreign consumer who wants to protect an on-line diary, 
copies of health care records or a business proposal, may not easily 
obtain strong encryption to do so from American sources if any portion 
of the encryption used by the product is non-recoverable. Under the 
bill, all these individuals must wait until 2002.

The PROTECT Act Does Not Provide Immediate Export Relief For Small 
        Businesses
    We believe the PROTECT Act provides greater export relief for 
larger corporate customers. However, until 2002, small and privately-
owned businesses face significant difficulty in easily obtaining U.S. 
encryption under any of the License Exceptions established by the 
PROTECT Act. So, for example, if two doctors in private practice 
together in Brazil or a restaurant owner in France or a small shopping 
market in Germany wants to purchase non-recoverable encryption, these 
small businesses probably would purchase a comparable foreign product 
as an American company could not easily export it to them.
    Unfortunately, as companies install the security ``plumbing'' into 
their individual computers and company networks, it becomes 
increasingly difficult for American companies to replace the foreign 
software and hardware that already has been installed. Because the 
small business sector is, and most likely will continue to be, the 
fastest growing business sector, this puts American companies at a 
distinct disadvantage in selling encryption products at a later date.

The PROTECT Act's Export Relief For Mass Market Products And For 
        Products Which Face Competition From Comparable Foreign 
        Products Is Too Complicated And Creates An Unwieldy Bureaucracy
    The PROTECT Act does recognize that mass market and publicly 
available encryption products, and encryption products for which 
comparable foreign products are available, should be treated 
differently under the U.S. export regime. The bill acknowledges the 
futility of trying to control a product that can be bought off of the 
Internet or easily purchased from commercial vendors such as CompUSA or 
from Circuit City by any individual in America regardless of 
nationality, or a comparable product can be easily purchased from 
similar stores in a foreign country. ``Bad guys'' certainly will have 
no problems obtaining the encryption products, and no concerns about 
``exporting'' the products via telephone lines or the Internet or 
smuggled out on personally pressed CDs. The only impact of the export 
controls will be to stop American companies from selling American 
products to legitimate users.
    Unfortunately, the PROTECT Act establishes a complicated private/
public board structure for deciding after-the-fact whether or not a 
product is a mass market product or whether comparable foreign products 
are available. The Secretary of Commerce has thirty days to approve or 
disapprove the Board determination, subject to judicial review, and the 
President may override any determination. Unfortunately, there is no 
guarantee of any consistency in the Board's decisions. Thus, while the 
Board procedure is an improvement, and the opportunity for judicial 
review provides a mechanism to ensure that exports are not denied in an 
arbitrary and capricious manner, it is not a predictable, clear process 
giving American companies certainty as to whether they can export their 
products. Such predictability is necessary so that American companies 
can have confidence designing and building security features into their 
products.
    The PROTECT Act should, but does not, afford complete and immediate 
export relief for mass market encryption without any complicated 
oversight. The Act also does not recognize that if a comparable foreign 
product is available, any delay in exports provides a significant 
advantage to the foreign product.

The PROTECT Act's Relief For 128-Bit AES Products Is Too Little, Too 
        Late
    I want to make one final comment regarding the general 
exportability of mass market products. We support NIST's efforts to 
establish a new 128-bit Advanced Encryption Standard; however, under 
the bill, it will not be finalized until 2002. Because the PROTECT Act 
limits easy exportability of mass market products until the AES is 
adopted, general distribution of these products will have to wait 
almost three years. Considering the current speed of technological 
change, where Internet products are now on three-month product cycle 
times, and the fact that 128-bit comparable foreign encryption is 
currently available, this is an eternity in Internet time. Law 
enforcement and national security interests have known for a long time 
that ubiquitous use of strong encryption by consumers worldwide is just 
around the corner. They cannot hope to continue to delay the world from 
using strong encryption according to their timeframe.

                       THE TIME FOR ACTION IS NOW

    To keep American vendors on a level international playing field and 
American computer users adequately protected, U.S. export controls must 
be immediately updated to reflect technological and international 
market realities.
    Thank you.

    Senator Frist. Thank you, Mr. Bidzos.
    Dr. Hoffman.

STATEMENT OF LANCE J. HOFFMAN, PH.D., PROFESSOR, DEPARTMENT OF 
 ELECTRICAL ENGINEERING AND COMPUTER SCIENCE, AND DIRECTOR OF 
   THE SCHOOL OF ENGINEERING AND APPLIED SCIENCE, CYBERSPACE 
       POLICY INSTITUTE, THE GEORGE WASHINGTON UNIVERSITY

    Dr. Hoffman. Thank you, Mr. Chairman. I appreciate the 
opportunity to be here this morning. I will give an abridgment 
of my written statement which has been previously furnished to 
this committee.
    My name is Lance Hoffman. I am a professor in the 
Department of Electrical Engineering and Computer Science at 
The George Washington University here in Washington, DC. I am 
also director of the School of Engineering's Cyberspace Policy 
Institute and the author or editor of five books and numerous 
articles on computer security and privacy. My most recent book 
is a compendium of papers on the encryption policy problem 
entitled ``Building in Big Brother.''
    Our Institute recently produced a report which we are 
releasing today, which I think you have been furnished, 
entitled ``Growing Development of Foreign Encryption Products 
in the Face of U.S. Export Regulations.'' This report is also 
available from the Institute and will be available later on 
this afternoon on our web site, where detailed tables and 
charts supporting the testimony I am giving are available.
    We did this work in cooperation with NAI Labs, the Security 
Research Division of Network Associates in Glenwood, MD. The 
project manager for NAI Labs, Dave Balenson, is with me today. 
We were assisted in this project by three students.
    In our work, we found that the development of cryptographic 
products outside the United States is not only continuing, but 
is expanding to additional countries. With the rapid growth of 
the Internet, communications-related cryptography especially 
has been experiencing high growth.
    We identified 805 hardware and/or software products which 
incorporate cryptography. These were manufactured in 35 
countries outside the United States. Attachment 1 to the 
written testimony provides the details on the countries and 
products.
    These 805 foreign cryptographic products represent a 149-
product increase, or 22 percent, over the most recent previous 
survey in December 1997. At least 167 of these use strong 
encryption, the kind that one cannot export from the United 
States without applying for and receiving export license 
approval.
    Cryptography product manufacturers have appeared in six new 
countries since December 1997: Estonia, Iceland, Isle of Man, 
Romania, South Korea, and Turkey. In established markets, there 
have been some large increases in the number of products 
offered. For example, the United Kingdom jumped by 20 products 
and Germany jumped by 28 products, going from 76 to 104.
    Mr. Chairman, in 70 countries outside the United States, 
foreign companies are manufacturing or distributing 
cryptographic products. We found 512 of these companies. On 
average, the quality of foreign and U.S. products is comparable 
and there are a number of very good foreign encryption products 
that are quite competitive in strength, standards compliance, 
and functionality.
    A significant number of foreign competitors to U.S. 
manufacturers are developing products with strong encryption 
and have as customers a number of large foreign or 
multinational corporations. Our report gives more detail on 
some of these companies and their offerings.
    We also found some examples of advertising used by non-U.S. 
companies that generally attempted to create the perception 
that purchasing American products may involve significant red 
tape and the encryption may not be strong due to export 
controls. Cited earlier this morning was material from 
Cybernetica's web site in Estonia, and that is also in the 
written testimony.
    Mr. Chairman, companies want to sell encryption products 
that meet certain accepted worldwide standards. To give you 
just two examples, in the case of IPsec, the Internet Protocol 
Security Standard, there are implementations from at least nine 
companies in five foreign countries. One of these is a joint 
effort of several Japanese companies, including Fujitsu, 
Hitachi, Toshiba, and NEC.
    Two years ago NIST solicited algorithms for the Advanced 
Encryption Standard to replace the Data Encryption Standard, 
DES, as the U.S. Government standard. The majority of the 15 
candidate algorithms submitted came from foreign countries. So 
it is very possible that the next U.S. Government encryption 
standard will have been designed outside the United States.
    Finally, Mr. Chairman, our empirical product data could be 
combined with economic measures and economic theories to better 
explain why we are seeing this observed growth in the 
cryptography marketplace and to examine the effects of Internet 
growth, electronic commerce development, and regulatory actions 
on the market over time. With this knowledge, we would be able 
to more easily adjust our national laws for a global economy.
    Thank you.
    [The prepared statement of Dr. Hoffman follows:]

Prepared Statement of Lance J. Hoffman, Ph.D. Professor, Department of 
Electrical Engineering and Computer Science, and Director of the School 
 of Engineering and Applied Science, Cyberspace Policy Institute, The 
                      George Washington University

    My name is Lance J. Hoffman. I am a professor in the Department of 
Electrical Engineering and Computer Science at The George Washington 
University in Washington, D.C. I also am Director of the School of 
Engineering's Cyberspace Policy Institute and the author or editor of 
five books and numerous articles on computer security and privacy. My 
most recent book is a compendium of papers on the encryption policy 
problem entitled Building in Big Brother (Springer-Verlag, New York, 
1995).
    Currently, I am the principal investigator for a project entitled 
``Cryptography Products and Market Survey''. As part of that project, 
we have recently produced a report entitled ``Growing Development of 
Foreign Encryption Products in the Face of U.S. Export Regulations''. I 
am leaving you copies of that report, which is also available from the 
Institute or on our Web site at http://www.seas.gwu.edu/seas/
institutes/cpi/library/papers.html, where detailed tables and charts 
supporting this testimony are also available. We did this work in 
cooperation with NAI Labs, the Security Research Division of Network 
Associates, Inc., Glenwood, Md. The project manager for NAI Labs, Mr. 
David Balenson, is with me today. We were assisted in this project by 
three students.
    In the project, we surveyed encryption products developed outside 
the United States and found that the development of cryptographic 
products outside the United States is not only continuing but is 
expanding to additional countries; with rapid growth of the Internet, 
communications-related cryptography especially is experiencing high 
growth.
    As of June 8, 1999, we identified 805 hardware and/or software 
products incorporating cryptography manufactured in 35 countries 
outside the United States. As shown in Attachment 1, the greatest 
number of foreign cryptographic products are manufactured in the United 
Kingdom, followed by Germany, Canada, Australia, Switzerland, Sweden, 
the Netherlands, and Israel in that order. Other countries accounted 
for slightly more than a quarter of the world's total of encryption 
products.
    These 805 foreign cryptographic products represent a 149-product 
increase (22%) over the most recent previous survey in December 1997. 
At least 167 of them use strong encryption, the kind that one cannot 
export from the United States without applying for and receiving export 
license approval. The algorithms used in these are Triple DES, IDEA, 
BLOWFISH, CAST-128, or RC5.
    Cryptography product manufacturers have appeared in six new 
countries since December 1997: Estonia, Iceland, Isle of Man, Romania, 
South Korea, and Turkey. There has also been a large increase in the 
number of products produced by certain countries. The United Kingdom 
jumped by 20 products from 119 to 139, and Germany jumped from 76 
products to 104. Also notable was Japan's increase, from 6 products to 
18, and Mexico's, from a single product to six.
    There are now 512 foreign companies that either manufacture or 
distribute foreign cryptographic products in 70 countries outside the 
United States. Attachment 2 lists these countries.
    On average, the quality of foreign and U.S. products is comparable. 
We have encountered poor products both within and outside the U.S., and 
we have encountered good products both within and outside the U.S. 
There are a number of very good foreign encryption products that are 
quite competitive in strength, standards compliance, and functionality.
    A significant number of foreign competitors to U.S. manufacturers 
of software and hardware with encryption capabilities are developing 
products with strong encryption, and have as customers a number of 
large foreign or multinational corporations. The report gives thumbnail 
sketches of some of these companies and their offerings.
    We found some example of advertising used by non-U.S. companies 
that generally attempted to create the perception that purchasing 
American products may involve significant red tape and the encryption 
may not be strong due to export controls. As an example, we show in 
Attachment 3 material from Cybernetica's Web site in Estonia. We give 
several other examples of similar advertising in the report.
    Companies want to sell encryption products that meet certain 
accepted worldwide standards. Encryption experts from all over the 
world have contributed to two important international standards 
efforts, IPsec and the Advanced Encryption Standard. In the case of 
IPsec, there are currently implementations (complete or in the works) 
from at least nine companies in five foreign countries. One effort, the 
KAME Project, is a joint effort of several Japanese companies (Fujitsu, 
Hitachi, IIJ Research Laboratory, NEC, Toshiba, and Yokogawa).
    In 1997, the National Institute of Standards and Technology (NIST) 
solicited algorithms for the Advanced Encryption Standard (AES) to 
replace the Data Encryption Standard (DES) as a U.S. government 
encryption standard. Individuals and companies from eleven different 
foreign countries proposed 10 out of the 15 candidate algorithms 
submitted to NIST. So it is very possible that the next U.S. government 
encryption standard will have been designed outside the United States. 
Details on who submitted what algorithm are given in Attachment 4.
    Finally, our empirical product data could be combined with economic 
measures and economic theories to better explain why we are seeing the 
observed growth in the cryptography marketplace, and to examine the 
effects of Internet growth, e-commerce development, and regulatory 
actions on the international cryptographic market over time, thus 
getting better insights into the implications of various policy 
options. We should be able to combine previous work with studies 
already available on the information technology sector and the data in 
our study to better understand the changes we are seeing in the global 
marketplace, and thus be able to more easily adjust national laws for a 
global economy.

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[GRAPHIC] [TIFF OMITTED] T9984.002

[GRAPHIC] [TIFF OMITTED] T9984.003

[GRAPHIC] [TIFF OMITTED] T9984.004

Growing Development of Foreign Encryption Products in the Face of U.S. 
                           Export Regulations

                           EXECUTIVE SUMMARY

    Development of cryptographic products outside the United States is 
not only continuing but is expanding to additional countries; with 
rapid growth of the Internet, communications-related cryptography 
especially is experiencing high growth, especially in electronic mail, 
virtual private network, and IPsec products. This report surveys 
encryption products developed outside the United States and provides 
some information on the effect of the United States export control 
regime on American and foreign manufacturers.
    We have identified 805 hardware and/or software products 
incorporating cryptography manufactured in 35 countries outside the 
United States. The most foreign cryptographic products are manufactured 
in the United Kingdom, followed by Germany, Canada, Australia, 
Switzerland, Sweden, the Netherlands, and Israel in that order. Other 
countries accounted for slightly more than a quarter of the world's 
total of encryption products. A full summary listing of the foreign 
cryptographic products can be found in an appendix to the report.
    The 805 foreign cryptographic products represent a 149-product 
increase (22%) over the most recent previous survey in December 1997. A 
majority of the new foreign cryptographic products are software rather 
than hardware. Also, a majority of these new products are 
communications-oriented rather than data storage oriented; they heavily 
tend towards secure electronic mail, IP security (IPsec), and Virtual 
Private Network applications.
    We identified at least 167 foreign cryptographic products that use 
strong encryption in the form of these algorithms: Triple DES, IDEA, 
BLOWFISH, RC5, or CAST-128. Despite the increasing use of these 
stronger alternatives to DES, there also continues to be a large number 
of foreign products offering the use of DES, though we expect to see a 
decrease in coming years.
    New cryptography product manufacturers have appeared in six new 
countries since December 1997, and there has been a large increase in 
the number of products produced by certain countries. The new countries 
are Estonia, Iceland, Isle of Man, Romania, South Korea, and Turkey. 
The United Kingdom jumped by 20 products from 119 to 139, and Germany 
jumped from 76 products to 104. Also notable was Japan's increase, from 
6 products to 18, and Mexico's, from a single product to six at the 
present time.
    We identified a total of 512 foreign companies that either 
manufacture or distribute foreign cryptographic products in at least 67 
countries outside the United States. A full summary listing of these is 
given in an appendix to the report.
    On average, the quality of foreign and U.S. products is comparable. 
There are a number of very good foreign encryption products that are 
quite competitive in strength, standards compliance, and functionality.
    We present sketches of some representative competitors to U.S. 
manufacturers of software and hardware with encryption capabilities; 
all are developing products with strong encryption and have as 
customers a number of large foreign or multinational corporations. The 
specific companies highlighted are Baltimore Technologies, Brokat, 
Check Point, Data Fellows, Entrust, Radguard, Seguridata Privada, 
Sophos, and Utimaco.
    We found some examples of advertising used by non-U.S. companies 
that generally attempted to create a perception that purchasing 
American products may involve significant red tape and the encryption 
may not be strong due to export controls. This almost always appeared 
on Web sites.
    We observed that companies vie to have encryption products that 
meet certain accepted worldwide standards. Encryption experts from all 
over the world have contributed to two important international 
standards efforts, IPsec and the Advanced Encryption Standard..
    Finally, we suggested that our empirical product data could be 
combined with economic measures and economic theories to better explain 
why we are seeing the observed growth and to examine the effects of 
Internet growth, e-commerce development, and regulatory actions on the 
international cryptographic market over time, thus getting better 
insights into the implications of various policy options.

                            1. INTRODUCTION

    This project has three main goals: to provide a comprehensive 
survey of foreign encryption products available worldwide; to identify 
specific foreign competitors likely to present a significant economic 
threat to U.S. manufacturers of software and hardware with encryption 
capabilities; and to provide evidence, if found, of potential threats 
to U.S. leadership in information technology as a result of U.S. export 
regulations on encryption products.
    While this work was undertaken within a very short time frame, and 
with limited resources, it still provides much new evidence to support 
the conclusions in Section 7. This evidence can be augmented with 
additional information as time permits. We do not offer opinions or 
analysis of key escrow or recovery policies, do long-term technological 
forecasting, or offer detailed political/social analysis of export 
control policies. Our goal is to provide an accurate, up-to-date survey 
of encryption products developed outside the United States and to 
provide some information on the United States export control regime and 
its effect on American and foreign manufacturers.

                             2. PRIOR WORK

    One of our first tasks in this project was to examine prior 
relevant work. Several important documents were studied in this regard.

2.1 U.S. Department of Commerce/National Security Agency Study
    The U.S. Department of Commerce Bureau of Export Administration 
(BXA) and the National Security Agency (NSA) jointly issued a study 
[Commerce/NSA Study 1996] that assessed the then current and future 
market for software products containing encryption and the impact of 
export controls on the U.S. software industry. Quoting from the press 
release that accompanied the study, ``. . . The study found that the 
U.S. software industry still dominates world markets. In those markets 
not offering strong encryption, U.S. software encryption remains the 
dominant choice. However the existence of foreign products with labels 
indicating DES (Data Encryption Standard) or other strong algorithms, 
even if they are less secure than claimed, can nonetheless have a 
negative impact on U.S. competitiveness. The study also notes that the 
existence of strong U.S. export controls on encryption may have 
discouraged U.S. software producers from enhancing security features of 
general purpose software products to meet the anticipated growth in 
demand by foreign markets. All countries that are major producers of 
commercial encryption products were found to control exports to some 
extent. The study found that because customers lack a way to determine 
actual encryption strength, they sometimes choose foreign products over 
apparently weaker U.S. ones, giving those foreign products a 
competitive advantage.'' [U.S. DoC 1996]

2.2 National Research Council CRISIS Report
    A report [CRISIS 1996] was published in 1996 by the National 
Research Council's Committee to Study National Cryptography Policy. It 
examined a number of issues related to our study. Based on work by a 
committee chaired by former Deputy Secretary of State Kenneth Dam and 
populated by a number of professionals from the law, intelligence, and 
computer science communities, it concluded that the United States 
should promote widespread commercial use of technologies that can 
prevent unauthorized access to electronic information, that the export 
of the Data Encryption Standard (DES) should be allowed to provide 
(what was then considered)-an acceptable level of security, and that 
the United States should progressively relax but not eliminate export 
controls.
    The report also states ``widespread commercial and private use of 
cryptography in the U.S and abroad is inevitable in the long run and 
its advantages, on balance, outweigh the disadvantages''. The committee 
concludes by noting ``the interests of the government and the nation 
would be best served by a policy that fosters a judicious transition 
toward a broad use of cryptography''.

2.3 President's Export Council Subcommittee on Encryption Report
    The President's Export Council Subcommittee on Encryption (PECSENC) 
is chartered by the Secretary of Commerce to provide the private and 
public sector with the opportunity to advise the U.S. Government on the 
future of commercial encryption export policy. The members of the 
PECSENC consist of representatives from industry, academia, nonprofit 
foundations, state and local law enforcement, and elsewhere in the 
private sector. In Septemberl998, its Working Group on International 
Issues issued a report [PECSENC 1998, included as Appendix D] that 
found ``the difference between U.S. encryption controls and those of 
other nations is a serious--but not the only--factor determining 
success in the computer security market.'' It also concluded that, 
``the adverse impact of controls on U.S. industry is palpable. For many 
software applications, business customers simply demand security and 
encryption; it is a checklist item, and its absence is a deal 
breaker.''
    The report also highlighted an example of a non-U.S. company using 
the difference in export control regimes as ``leverage'' to ultimately 
attempt to dominate particular applications:

         ``. . . Brokat, a German company that scarcely existed four 
        years ago, now has 250 employees and offices in several 
        countries including the United States. Brokat's specialty is 
        Internet banking and electronic commerce, but it broke into 
        that business on the strength of being able to offer stronger 
        encryption than German banks could obtain in Netscape or 
        Microsoft browsers. It is now a major player in this niche, 
        with 50% of the European Internet banking market and enough 
        U.S. customers to justify a 20-person U.S. branch office. 
        Meanwhile, encryption constitutes 10% or less of Brokat's 
        revenue, and it has expanded its initial Internet banking 
        offerings to include support for other forms of electronic 
        commerce. Loss of U.S. competitiveness in the electronic 
        commerce software market obviously raises concerns not just 
        about encryption software but other software opportunities. 
        Indeed, it foreshadows a weakening of the U.S. position as a 
        leader in electronic commerce generally.''

    The report also was concerned that ``the persistent emphasis in 
U.S. export control policy over the past two years on key recovery, or 
``lawful access,'' has also taken a toll on the credibility of U.S. 
security products. . . . Foreign governments and competitors, 
particularly in Europe, have misinterpreted this U.S. policy, perhaps 
deliberately. In essence, foreign customers are told often by their 
governments as well as local security companies that all U.S. 
encryption products come with a back door allowing the U.S. government 
to read the contents. In part this is the result of outmoded `Recovery' 
supplements to U.S. export rules that demand an unrealistic level of 
U.S. government access to key recovery products.''

          3. SURVEY OF CRYPTOGRAPHIC PRODUCTS OUTSIDE THE U.S.

3.1 Overview
    The principal investigator and the subcontractor of this current 
project also studied the worldwide availability of cryptographic 
products since April 1993 as part of what has become known as the ``TIS 
Survey'' [TIS 1997]. The results of this earlier work have been 
presented to the Computer Systems Security and Privacy Advisory Board 
(CSSPAB) of the National Institute of Standards and Technology (NIST) 
and presented by Stephen T. Walker, President of Trusted Information 
Systems, to two Congressional subcommittees [Walker 1993, Walker 1994]. 
The survey was also provided to numerous government agencies and 
departments as part of their efforts to understand the availability of 
cryptographic products and its impact on U.S. export control policies.
    The TIS Survey continued until December 1997, at which time it 
identified 656 foreign cryptographic products from 29 countries. The 
survey also identified 963 domestic products, for a worldwide total of 
1619 products produced and distributed by 949 companies (474 foreign 
and 475 domestic) in at least 68 countries.
    Our goal for this current study was to update the foreign product 
portion of the TIS Survey. We focused mainly on discovering new 
products from foreign manufacturers and also spent some time updating 
entries for the existing foreign products in the database.
    Information collected by the TIS Survey was assembled into an MS 
Access database. The database includes two tables, one for 
cryptographic products and a second table for companies that either 
produce or distribute cryptographic products. Each entry in the product 
table includes the following information: Name/Version, Manufacturer 
and Country, Platforms:
     PC, Mac, Workstation, Mainframe, DOS, Windows, UNIX, etc., 
Interfaces;
     RS232, X.21, X.25, V.21, V.24, RJ-11, etc., Type;
     HW, SW, HW/SW combo, What It Encrypts;
     Data, Files, Directories, Disks, Communications, Voice, 
Fax, Tape, Email, etc., Embodiment;
     Program, Kit, Chip, Board, Box, Tokens, PCMCIA, Smart 
Card, Phone, etc. Cryptographic Algorithms;
     DES, Triple DES (3DES), Blowfish, IDEA, CAST, Proprietary, 
RC2/4/5, SKIPJACK, Stream Ciphers, RSA, El Gamal, DH, DSA, ECC, MD2/4/
5, SHA-1, etc., How Distributed;
     Mass-Market, Direct, Shareware, Internet, etc., Company 
Information;
     Name, Country, Address, Contact Information, etc.

3.2 Data Collection Methodology
    We used the following methods of data collection: issue a call for 
information and examine the results, plumb existing work available to 
us, and use the World Wide Web to conduct searches for new products and 
information.
    The call for information to elicit information from the computer 
cryptography community regarding new products (Appendix A) was posted 
in the following newsgroups and mailing lists (IETF is the Internet 
Engineering Task Force [IETF]):
     sci.crypt newsgroup: discussion of the science of 
cryptology, including cryptography, cryptanalysis, and related topics 
such as one-way hash functions.
     Risks mailing list: describes many of the technological 
risks that happen in today's environment.
     Cypherpunks mailing list: forum for discussing 
cryptography, privacy, and related social issues.
     Cryptography mailing list: mailing list devoted to 
cryptographic technology and its political impact.
     Firewalls mailing list: discussion of Internet 
``firewall'' security systems and related issues.
     IETF Web Transaction Security (wts) Working Group mailing 
list: discussion of the development of requirements and a specification 
for the provision of security services to Web transaction.
     IETF Secure Shell (secsh) Working Group mailing list: 
discussion of efforts to update and standardize the SSH protocol.
     IETF IP Security Protocol (ipsec) Working Group mailing 
list: discussion of the standards efforts on IP Security.
     IETF An Open Specification for Pretty Good Privacy 
(openpgp) Working Group mailing list: discussion of extending the 
current PGP protocol.
    The Call and Survey were also posted on the Web site of the 
Cyberspace Policy Institute of The George Washington University [CPI 
1999]. Additionally, project team members sent the survey out to 
individuals who they believed might know of foreign products.
    The existing work available to us included trade magazines, 
journals, buyers guides [CSI, ICSA Survey], and other print material.
    Most of our new information on foreign cryptography products was 
found by using Web search engines and gathering information from Web 
pages.

3.3 Results of Update to Cryptographic Products Survey
    Our effort to update the cryptographic products survey focused 
mainly on discovering new products from foreign producers, but also 
involved updating information on some of the existing foreign products 
in the database. Since we did not set out to update information on 
cryptographic products produced in the U.S., the number of domestic 
cryptographic products changed only slightly (when we came across 
something and thus updated the information). However, we expect that 
the number of cryptographic products produced in the U.S. has in fact 
also increased. NAI Labs plans to further update the domestic portion 
of the survey in the near future.
    The updated foreign cryptographic product survey (see summary table 
on following page) now identifies a total of 805 hardware and/or 
software products incorporating cryptography manufactured in 35 
countries outside the United States. The most foreign cryptographic 
products are manufactured in theUnited Kingdom, followed by Germany, 
Canada, Australia, Switzerland, Sweden, the Netherlands, and Israel in 
that order. Other countries accounted for slightly more than a quarter 
of the world's total of encryption products. A full summary listing of 
the foreign cryptographic products can be found in Appendix B.
    The 805 foreign cryptographic products resulting from the current 
update represents a 149-product increase over the December 1997 survey. 
A majority of the new foreign cryptographic products are software 
rather than hardware.
    Another notable finding is that a majority of new foreign 
cryptographic products are oriented toward communications rather than 
data storage applications; and these heavily tended towards secure 
electronic mail, IP security (IPsec), and Virtual Private Network (VPN) 
applications. The results also showed a lot of activity in IPsec 
implementation, which is likely prompted by the recent emergence of new 
IPsec specifications from the IETF [IPSEC].
    The updated foreign cryptographic product survey also identified a 
total of 512 foreign companies that either manufacture or distribute 
foreign cryptographic products in at least 67 countries outside the 
United States. A full summary listing of these is given in Appendix C.

            3.3.1 More ``Strong'' Encryption is on the Market
    The updated foreign cryptographic products survey also showed 
increasing use of ``strong'' alternative cryptographic algorithms to 
DES, which uses a 56-bit key. Altogether, we identified at least 167 
foreign cryptographic products that use Triple DES, IDEA, BLOWFISH, 
RC5, or CAST-128, which support larger key lengths. Despite the 
increasing use of these stronger altematives to DES, there also 
continues to be a large number of foreign products offering the use of 
DES, though we expect to see a decrease in coming years.
    We identified at least 123 foreign cryptographic products that use 
Triple DES, which employs either two traditional DES keys, for an 
effective key length of 112 bits, or three DES keys, for an effective 
key length of 168 bits.
    We identified at least 54 foreign cryptographic products that use 
the International Data Encryption Algorithm (IDEA), a Swiss-developed 
symmetric block cipher with a 128-bit key length [Lai 1990, Lai 1991].
    We identified at least 36 foreign cryptographic products that use 
BLOWFISH, a symmetric block cipher developed by Bruce Schneier with a 
variable key length ranging from 32 to 448 bits [Schneier 1993, 
Schneier 1994]. Many of these products appear to use BLOWFISH with the 
full 448-bit key length.
    We identified at least 2 foreign cryptographic products that use 
RC5, a symmetric block cipher developed by Ron Rivest (one of the RSA 
inventors) with a variable length key up to 2040 bits [Rivest 1996].
    We identified at least 12 foreign cryptographic products that use 
CAST-128, a symmetric block cipher developed by Carlisle Adams of 
Entrust Technologies in Canada with a variable length key up to 128 
bits [Adams 1997].

[GRAPHIC] [TIFF OMITTED] T9984.005

            3.3.2 New Countries and Growth Countries for Cryptographic 
                    Products
    The update identified six new countries producing cryptographic 
products. The countries that have started producing encryption products 
since December 1997 are Estonia, Iceland, Isle of Man, Romania, South 
Korea, and Turkey.
    We also noticed a large increase in the number of products produced 
by certain countries, such as the United Kingdom, which jumped by 20 
products from 119 to 139, and Germany, which jumped from 76 products to 
104.
    Japan also showed a large increase, jumping from 6 products in the 
December 1997 survey to 18 products in the updated survey. Most of the 
new products come from Mitsubishi Electronic Corporation, which has 
introduced a number of hardware and software cryptographic products 
that make use of a Japanese cryptographic algorithm known as MISTY, 
which uses a 128-bit key as well as Triple DES [Matsui 1996, MISTY].
    Mexico also increased, from a single ``freeware'' product in the 
December 1997 survey to six products in the updated survey, due to the 
discovery of five new commercial cryptographic products from Seguridata 
Privada S.A de C.V., which is described in greater detail in Section 4.
[GRAPHIC] [TIFF OMITTED] T9984.006

            3.3.3 Growing Numbers of Foreign Products & Companies
    The TIS Survey was initiated in April 1993 and conducted on an 
ongoing basis through December 1997. Figure 2 depicts the evolution of 
the survey in terms of the increasing numbers of foreign cryptographic 
products and companies (manufacturers and distributors) identified each 
year of the survey effort and after the recent update. Overall, there 
clearly continues to be increasing and expanding development of foreign 
cryptographic Products.

            3.3.4 Quality of Foreign Cryptographic Products
    NAI Labs has obtained a number of foreign cryptographic products 
over the life of the survey effort. The products were all purchased via 
routine channels, either directly from the foreign manufacturer, a 
foreign distributor, or an U.S. distributor. We have also downloaded a 
large number of foreign cryptographic products over the Internet via 
the World Wide Web.
    The quality of cryptographic products varies greatly both within 
and outside the U.S. We have encountered poor quality products both 
within and outside the U.S., and we have encountered good quality 
products both within and outside the U.S. On average, the quality of 
foreign and U.S. products is comparable. There are a number of very 
good foreign encryption products that are quite competitive in 
strength, standards compliance, and functionality. We highlight some of 
these in the next section.

      4. some competitors to u.s. products employing cryptography
    After updating the cryptography product database, based on prior 
surveys and new information, we searched out information on the foreign 
manufacturers that were representative competitors to U.S. 
manufacturers of software and hardware with encryption capabilities. We 
did this by examining traditional sources such as business magazines, 
major newspapers, and trade publications; interviewing industry leaders 
and security professionals; and using various Web-based search methods 
[Lexis-Nexis, ABI/Inform, FirstSearch, Gale] to find appropriate 
combinations of keywords (encryption, U.S., US, United States, foreign, 
overseas, regulation, export, export controls).
    We identified a substantial number of foreign companies that are 
developing a number of products with strong encryption and have as 
customers a number of large foreign or multinational corporations. We 
sketch nine of these in this section to provide a representative 
sampling. All but one already provide strong encryption (as defined in 
Section 3.3.1).
    Some of the material below has references to cryptographic 
algorithms, protocols, and other computer science terms that may not be 
familiar to some readers. More information on these can generally be 
found in [Stallings 1999] and [Rivest 1978].
Baltimore Technologies Plc, IRELAND/UNITED KINGDOM/AUSTRALIA
    Baltimore Technologies plc. was formed by the merger in January 
1999 of Zergo Holdings plc. (UK) and Baltimore Technologies Ltd. 
(Ireland). Its regional headquarters are located in Dublin (Ireland), 
Plano (Texas) and Sydney (Australia). Corporate headquarters are 
located in London, UK [Baltimore 1999a].
    Baltimore develops and markets security products and services for a 
wide range of e-commerce and enterprise applications. Its products 
include Public Key infrastructure (PKI) systems, cryptographic 
toolkits, security applications and hardware cryptographic devices.
    Baltimore's security toolkits include PKI-Plus, ECS Desktop, C/SSL, 
J/SSL, SMT, CST, and J/CRYPTO. The PKI-Plus toolkit provides clients 
with the functionality to support a Public Key Infrastructure and 
provides encryption capabilities with full strength DES, Triple DES and 
IDEA. ECS Desktop is a high level GSS toolkit that supports 64-bit DES 
and 128-bit Triple DES. C/SSL and J/SSL are cryptographic toolkits for 
developing SSL 3.0 applications written in C and Java respectively. C/
SSL supports 56-bit DES and 128-bit Triple DES, IDEA and RC4. J/SSL 
supports 56-bit DES, and 128-bit Triple DES and RC4. SMT (Secure 
Messaging Toolkit) provides developers the ability to add security to 
messaging (email) applications. The encryption algorithms supported are 
56-bit DES, 128-bit Triple DES, and 40-bit, 64 bit, and 128-bit RC2. 
CST (Crypto Systems Toolkit) is a set of cryptographic components 
enabling developers to build strong information security systems. It 
contains implementations of a variety of encryption algorithms 
including DES, Triple DES with up to 192 bits key length, IDEA, BSA4, 
BSA5, RC2, RC4, up to 2048-bit RSA, and DSA. J/CRYTPO is a 
cryptographic class library for Java applications that supports 56-bit 
DES, 112-bit Triple DES, and RC4 encryption, and 512-, 1024-, and 2048-
bit RSA key exchange and digital signature.
    Security application solutions include FormSecure, MailSecure, 
MailSecure Enterprise, and WebSecure. Of its security applications, 
FormSecure which provides PKI security for Web browser forms uses DES 
and triple-DES encryption with 128-bit keys. MailSecure provides secure 
email for MS Outlook, Exchange and Eudora using 128-bit DES, Triple DES 
and RC2. MailSecure Enterprise, a centralized secure email product, 
provides encryption with 128-bit Triple DES. WebSecure enhances web 
server to browser communication in eases where export versions of 
specific browsers are limited to 40 bits of encryption by diverting all 
web traffic to its Java programs that use 128-bit RC4 encryption.
    Baltimore's hardware cryptographic device, HS4000-Assure provides a 
security kernel for high speed servers and workstations and features 
56-bit DES and 112-bit Triple DES data encryption, and up to 4096-bit 
RSA key exchange and digital signatures.
    ``Baltimore has customers in over forty countries including some of 
the world's leading financial, e-commerce, telecommunications companies 
and government agencies. Customers include: ABN-AMRO Bank, Australian 
Tax Office, Bank of England, Bank of Ireland, Belgacom, Digital 
Equipment, European Commission, Home Office (UK), IBM, Lehman Brothers, 
Ministry of Defense (UK), NatWest, NIST (USA), PTT Post (Netherlands), 
S.W.I.F.T., Tradelink (Hong Kong), TradeVan (Malaysia) and VISA 
International'' [Baltimore 1999a] .
    ``Baltimore has also formed alliances with other major global 
providers of information security technology and services, including 
ActivCard, Axent Technologies, CDC, Certicom, Chrysalis, CISCO, Dascom, 
DataKey, GemPlus, Gradient, Hewlett-Paekard, ICL, Isocor, Kyberpass, 
Logica, Netseape, Oracle, Racal and Valicert'' [Baltimore l999a].

Brokat Infosystems AG, GERMANY
    BROKAT was founded in 1994. Its headquarters is in Stuttgart, 
Germany. Subsidiaries are located in Great Britain, Ireland, 
Luxembourg, Austria, Switzerland, Singapore, Australia, South Africa 
and the United States. Brokat develops secure solutions for Internet-
banking, Internet-brokerage and Internet-payment by allowing companies 
through the use of its products to develop secure electronic banking 
and electronic commerce solutions [Brokat l999a]. Its main product, 
Brokat Twister, is a software package enabling secure electronic 
business solutions and provides Java-based 128-bit encryption. Brokat's 
X-PRESSO Security Gateway provides Twister with a secure Internet 
channel, using strong SSL encryption. It supports 128-bit IDEA and 
Triple DES for data encryption, and RSA up to 2048 bits for key 
exchange and digital signatures.
    In its press release of May 19, 1999 Brokat claims a sales increase 
of 125% in the third quarter of 1998/1999 compared to the same quarter 
in the previous year [Brokat 1999b].
    More than 100 financial service companies use Twister. Brokat 
customers include Deutsche Bank, Bank 24, Allianz, Fortis Bank 
Luxembourg the Zurich Kantonalbank, Hypo Bank of Munich, and The Swiss 
National Telephone Company [Andrews 1997].
    Brokat's ``Product Partners'' include AOL Bertelsmann Online, 
Corporate Interactive, Inc., Intershop Communications, Micrologica, 
Netscape Communications, Giesecke & Devrient, and Concord-Eracom.
Check Point Software Technologies Ltd., ISRAEL
    ``Check Point provides secure enterprise networking solutions 
through an integrated architecture that includes network security, 
traffic control and IP address management. Check Point solutions are 
aimed at enabling customers to implement centralized policy-based 
management with enterprise-wide distributed deployment'' [Check Point 
1999a].
    ``The company's integrated architecture includes network security 
(FireWall-1, VPN-1, Open Security Manager and Provider-1), traffic 
control (FloodGate-1 and ConnectControl) and IP address management 
(Meta IP)'' [Check Point 1999b].
    ``Check Point products protect and manage the corporate assets of 
the majority of Fortune 100 companies and other leading companies and 
government agencies across the globe. As of April 1999, the company had 
more than 30,000 registered customers with over 77,000 installations 
worldwide and 17,000+ networks worldwide using its VPN solution. The 
Meta IP and Meta DNS products had some 15,000 installations worldwide'' 
[Check Point 1999b].
    The company's international headquarters are located in Ramat-Gan, 
Israel. International subsidiaries are located in the United Kingdom, 
France, Germany, Japan, Singapore, Australia, the Middle East and 
Canada. U.S. subsidiaries are located in northern and southern 
California, Colorado, Georgia, Illinois, Massachusetts, Michigan, New 
York, North Carolina, Philadelphia, Texas, Virginia and Washington.
    In an April 19, 1999 press release, Check Point announced that 
``revenues for the first quarter ending March 31 were $43,772,000 
compared to $31,956,000 for the same period in 1998, an increase of 
37%. Net income for the quarter was $19,703,000, or $0.49 per share 
compared to net income of $15,149,000, or $0.39 per share in the same 
quarter in 1998, an increase of 30% in net income and 26% in net income 
per share. Check Point experienced growth across all geographic 
regions, particularly in Japan. Revenues from the U.S. accounted for 
45% of revenues, Europe 34% and Rest of World 21%. In addition, 
revenues from Technical Services reached 17% in the first quarter. OEM 
revenues, including those from Nokia and Sun Microsystems, represented 
11% of revenues'' [Check Point 1999c] .
    Based on figures from 1997, Check Point is the leading vendor of 
firewalls with a 23% share in the firewall market--a revenue of $83 
million in firewall sales [Inter@ctive Week 1998].
    Checkpoint's firewall solution, Firewall-1 provides a comprehensive 
set of security solutions which includes VPN through the support of 
encryption algorithms such as 40- and 56-bit DES, 168-bit Triple DES, 
40-bit RC4, 40- and 128-bit CAST, and 48-bit FWZ-1 (FWZ-1 is Check 
Point's 48-bit exportable proprietary symmetric encryption algorithm).
    Check Point's VPN solution products include VPN-1 Gateway, VPN-1 
SecuRemote, VPN-1 Accelorator Card, and VPN-1 Appliance. VPN-1 Gateway 
products are software solutions that provide encryption supporting the 
following algorithms: 40- and 56-bit DES, 168-bit Triple DES, 40-bit 
RC4, 40- and 128-bit CAST, and 48-bit FWZ-1. VPN-1 SecurRemote provides 
VPN support for remote and mobile users. It supports 40- and 56-bit 
DES, 168-bit Triple DES, 40-bit CAST, and 48-bit FWZ-1. VPN-1 
Accelorator Card provides hardware-based data encryption using 56-bit 
DES and 168-bit Triple DES. VPN-1 Appliance uses 40-and 56-bit DES, 40-
bit RC4, and 48-bit FWZ-1.
    Check Point's Open Platform for Secure Enterprise Connectivity 
(OPSEC) is an alliance that delivers the industry's first enterprise-
wide security framework. OPSEC provides a single framework that 
integrates and manages all aspects of secure enterprise networking 
through an open, extensible management framework Via the OPSEC 
Alliance, Check Point Software's products seamlessly integrate with 
``best-of-breed'' products from more than 200 leading industry 
partners. A complete listing of OPSEC partners can be found at http://
www.opsec.com/.

Data Fellows Ltd., FINLAND
    ``Data Fellows develops, markets and supports data security 
products for corporate computer networks. Its products include anti-
virus software, and data security and cryptography software. Its main 
offices are in San Jose, California and Espoo, Finland, and it has 
branch offices as well as corporate partners, VARs and other 
distributors in over 80 countries around the world. Its products have 
been translated into over 20 languages'' [Data Fellows 1999a].
    Data Fellows' F-Secure cryptography products are a family of 
cryptography software to protect the integrity and confidentiality of 
sensitive information. Its family of products include F-Secure VPN+, F-
Secure VPN, F-Secure SSH, F-Secure FileCrypto, and F-Secure Desktop. F-
Secure VPN+ provides IPSec protocol based security for secure 
networking between remote offices, business partners and travelling 
salesmen using 56-bit DES, 168-bit Triple DES, 128-bit Blowfish, and 
128-bit CAST. F-Secure VPN (Virtual Private Network) is an SSH security 
protocol based solution for pure LAN-to-LAN encryption using a variety 
of user selectable algorithms including Triple DES, Blowfish, RSA, and 
IDEA (optional). The symmetric algorithms all use at least 128 bits. F-
Secure SSH Server provides users with secure login connections, file 
transfer, X11, and TCP/IP connections over untrusted networks using 
128-bit Triple DES and 128-bit IDEA. F-Secure SSH Terminal&Tunnel 
provides the user with secure login connections over untrusted networks 
and to create local proxy servers for remote TCP/IP services. F-Secure 
SSH Tunnel&Terminal products support the following cryptographic 
algorithms: 56-bit DES, 168-bit Triple DES, 128-bit IDEA, 128-bit 
Blowfish, 256-bit Twofish, and 128-bit ARCFour (an RC4 compatible 
stream cipher). F-Secure FileCrypto is a product that encrypts and 
decrypts files using 256-bit Blowfish and 168-bit Triple DES. F-Secure 
Desktop provides encryption and decryption of files, directories, and 
Windows 95/NT 4.0 folders using 256-bit Blowfish and 168-bit DES.
    ``The Company's net sales have doubled annually since it was 
founded in 1988. Turnover has reached $3.3 million, $7.6 million and 
$14.1 million in the fiscal years 1995, 1996 and 1997, respectively'' 
[Data Fellows 1999a].
    ``Data Fellows has customers in more than 100 countries. These 
include many of the world's largest industrial corporations and best-
known telecommunications companies; major international airlines; 
several European governments, post offices and defense forces; and 
several of the world's largest banks. Customers include NASA, the US 
Air Force, the US Department of Defense Medical branch, the US Naval 
Warfare Center, the San Diego Supercomputer Center, Lawrence-Livermore 
National Laboratory, IBM, Unisys, Siemens-Nixdorf, EDS, Cisco, Nokia, 
Sonera (formerly Telecom Finland), UUNet Technologies, Boeing, Bell 
Atlantic, and MCI'' [Data Fellows 1999a].

Entrust Technologies, CANADA
    Entrust is a Canadian company that spun off from Northern Telecom 
(Nortel). It develops cryptographic products in Canada and exports them 
from there. It now has offices across the United States, Canada, the 
United Kingdom, Switzerland, Germany, and Japan.
    Entrust develops products for trusted electronic transactions. Its 
products include solutions for secure Internet transactions including 
digital certificate services and public-key infrastructures (PKI) 
products.
    Entrust File Toolkit delivers a set of application programming 
interfaces (APIs) to add encryption and digital signatures to store-
and-forward (email, e-forms) applications. It Supports DES, Triple DES, 
RSA and RC2. Entrust Session Toolkit is designed for third-party 
applications that need to protect data communications in real-time. It 
supports DES, Triple DES, and RC2. Entrust/Solo is a product that 
provides data encryption, digital signature and data compression 
functionality for the desktop and e-mail using DES, Triple DES and 
CAST.
    The company's more than 800 corporate customers include J.P. 
Morgan, the Salomon Smith Barney unit of Citigroup, ScotiaBank, 
S.W.I.F.T, FedEx, the Canadian Government and several U.S. government 
agencies.
    Entrust's industry partners include development partners such as 
Hewlett-Packard, Network Associates, Oracle, Nortel Networks and 
others, 25 channel partners including Hewlett-Packard and Compaq OEM 
Partners: IBM, Tandem, Check Point and others, specifiers and referral 
partners such as PriceWaterhouse Coopers, Deloitte & Touche; KPMG Peat 
Marwick, Ernst & Young, and others, and service provider partners such 
as BCE Emergis, EDS, Scotiabank and others [Entrust 1999].

Radguard, ISRAEL
    RADGUARD was founded in 1994 as a member of the RAD Group of data 
communications companies. Privately held, the company is backed by 
American and foreign corporate investors. The company's international 
headquarters are located in Tel Aviv, Israel; its US headquarters are 
in Mahwah, NJ.
    Radguard is a pioneer and leader in the secure Virtual Private 
Network (VPN) market. Incorporating security technologies and industry 
standards into high-performance hardware architectures, Radguard 
provides solutions to Internet-based 
virtual private networking, secure non-Internet transmission, safe 
Internet connectivity and client encryption. Its VPN and network 
security products include cIPRO, CryptoWall, and NetCryptor. cIPRO is 
an Internet-working security system for VPNs. The cIPRO family uses DES 
and up to 168-bit Triple DES for encryption. CryptoWall is an 
encrypting firewall that supports subnet-to-subnet security in TCP/IP 
environments. It supports DES for data encryption and RSA for key 
exchange and digital signature. NetCryptor is a hardware-based 
encryption device that employs DES.
    Customers include NTT Data, a subsidiary of Japan's Nippon 
Telephone and Telegraph (NTT), Germany's major car makers and component 
suppliers including BMW, Bosch, BEHR, Drexlmaier, Audi, Freudenberg, 
DaimlerChrysler, Volkswagen and Hella.

Seguridata Privada S.A de C.V., MEXlCO
    SeguriDATA is a Mexican company founded in 1996 with the purpose of 
participating actively in the construction of security standards in 
Mexico and Latin America by means of integration in committees, with 
products in electronic security. It has offices in Peru and Spain as 
well as Mexico. The company provides confidentiality and authenticity 
of electronic documents with applications to electronic commerce, 
financial transactions and confidential systems of communications.
    Its products include SeguriDOC, SeguriEDIFACT, SeguriLIB, 
SeguriPROXY, and SeguriTELNET. SeguriDOC offers Triple DES for 
confidentiality of archived data. SeguriEDIFACT provides security for 
EDI communications using Triple DES. SeguriPROXY provides security 
between web server and web browser sessions using 128-bit RC4.

Sophos Plc., UK
    Sophos Plc was founded in 1980 and moved into data security in 
1985, producing software and hardware for data encryption, 
authentication and secure erasure. Its virus detection product has 
positioned the company as a leading supplier of enterprise-wide virus 
protection tools. Subsidiaries include Sophos Pty Ltd, Australia, 
established in April 1999, Sophos Plc, France, established in May 1998, 
Sophos GmbH, Germany established in October 1997, and Sophos Inc, USA, 
a wholly-owned subsidiary of Sophos Plc based in Massachusetts, USA 
[Sophos 1999]. Sophos data security products include D-Fence 4 HMG, D-
Fence 4 SPA, E-DES, and PUBLIC. D-FENCE HMG is a disk authorization and 
encryption system for HMG, providing encryption and authentication of 
floppy and hard disks using SEVERN BRIDGE, a U.K. Government standard 
algorithm. D-FENCE SPA is a data encryption system for PCs and laptops 
using SPA (Sophos Proprietary Algorithm) for encryption of floppy and 
hard disks. SPA is a 64-bit block cipher with 64-bit keys. E-DES and 
PUBLIC are products used for secure file storage and transmission. E-
DES encrypts files using DES or SPA, while PUBLIC encrypts files using 
512-bit RSA or MDH in combination with DES or SPA.
    Customers include government, financial institutions and multi-
national corporations.

Utimaco Safeware AG, GERMANY
    Utimaco Safeware AG has subsidiaries in Belgium, France, Finland, 
Great Britain, Austria, the Netherlands, Norway, Sweden and Switzerland 
and additional distribution partners (Value-Added-Resellers) in almost 
all European countries, in the USA, Australia, Asia and in South 
Africa. Utimaco also has strategic alliances with IBM Deutschland 
Informationssysteme GmbH, SIEMENS AG and Toshiba Europe.
    Utimaco develops IT security solutions for the areas of mobile/
desktop security (authentication, access control, encryption), network 
security (authentication, encryption), e-commerce security (digital 
signature, encryption) and security infrastructure (smart card reader).
    ``Utimaco has three development centres. The SafeGuard product line 
focussing on the ``Mobile/Desktop Security'' area is developed in 
Munich, Germany. The development of the SafeGuard product family for 
``Network Security'' and the smart card technology and card reader 
family CardMan is done in Linz, Austria. The third development centre 
near Brussels (Holsbeck), Belgium, is responsible for the SafeGuard 
``E-Commerce Security'' product line (digital signatures, e-mail 
security) and the CriptWare technology (high-performance 
implementations of standardized basis-crypto algorithms and 
interfaces)'' [Utimaco 1999a].
    Products for mobile/desktop security include SafeGuard Easy, and 
SafeGuard Desktop. SafeGuard Easy is a security program for the online-
encryption of hard disks and diskettes. It operates with the encryption 
algorithms Blowfish, STEALTH, 56-bit DES and 128-bit IDEA to guarantee 
the confidential storage of sensitive data. SafeGuard Desktop is a 
security solution for OS/2 operating systems offering boot and virus 
protection as well as user logon, and allows online encryption of hard 
disks and floppies with DES, IDEA, STEALTH, Blowfish, and XOR.
    Utimaco network security products include SafeGuard LAN Crypt and 
SafeGuard VPN. SafeGuard LAN Crypt provides protection of selected 
files against access by persons who are physically capable of accessing 
the data carrier. The solution guarantees the security of encrypted 
data through a key length of 128 bits and globally accepted, strong 
algorithms such as IDEA. SafeGuard VPN provides Virtual Private 
Networks with secure data transmission using 168-bit Triple DES and 
128-bit IDEA.
    Utimaco's E-commerce security products include CryptWare Board, 
CryptWare Server, Cryptware Toolkit, and SafeWare Sign&Crypt. Cryptware 
Board comes with a DES chip, but allows any other encryption algorithm 
to be easily installed. The CryptWare Server is a cryptographic black 
box designed for applications with high security requirements and/or 
high-speed cryptographic capabilities. It employs DES and 1024-bit RSA. 
The CryptWare Toolkit is a library that provides all necessary 
cryptographic and administrative functions to build secure electronic 
messaging systems. It supports RSA, Triple DES, IDEA, RIPEMD160, MD5, 
and SHA-1. SafeWare Sign&Crypt offers signing and verification of 
electronic documents. It can provide encryption with 128-bit IDEA.
    The breakdown of Utimaco Group sales by industry in the last 
business year, 1997/98, is as follows: 29.7% for public institutions, 
29.3% for banks, 26.8% for industry and commerce and 14.1% for 
insurance companies. In the last business year 57 percent of sales were 
made outside Germany. Its customers include Bertelsmann (Gutersloh) 
Colonia Nordstern Versicherungsmanagement AG (Cologne), Daimler-Benz 
Aerospace AG (Kiel), Dresdner Bank, Eduscho GmbH (Bremen), Frankfurter 
Sparkasse (Frankfurt), Goldwell GmbH (Darmstadt), Innenministerium 
Mecklenburg-Vorpommem (Schwerin), Landesamt fur Datenverarbeitung, 
(Potsdam), Motorola GmbH (Taunusstein), Otto Versand International GmbH 
(Hamburg), Oberverwaltungsgericht Thuringen (Weimar), Price Waterhouse 
(Frankfurt), Police Forces (Belgium), Isaserver (Belgium), State Police 
(Belgium), Unisys for Christelijke Mutualiteiten (Belgium), The 
European Commission (Belgium and Luxembourg), Danfoss A/S (Denmark), 
ICL Pathway Ltd. (Great Britain), Robert Fleming & Co. Ltd. (Great 
Britain), Standard Chartered Bank (Great Britain), Conseil de I Union 
Europeenne (Luxembourg), KPN Telecom (The Netherlands), ABN AMRO Bank 
N.V. (The Netherlands), Nycomed Amersham Group (Norway), Schweizer Post 
(Switzerland), DDJ, and Justizdirektion des Kantons Zurich 
(Switzerland).

            5. foreign marketing use of u.s. export controls
5.1 Introduction
    As Under Secretary of Commerce William A. Reinsch noted in recent 
Congressional testimony, ``encryption remains a hotly debated issue. 
The Administration continues to support a balanced approach that 
considers privacy and commerce as well as protecting important law 
enforcement and national security equities. We have been consulting 
closely with industry and its customers to develop a policy that 
provides that balance in a way that also reflects the evolving 
realities of the market place'' [Reinsch 1999]. As the Commerce 
Department struggles to craft and finely tune export regulations to 
satisfy these objectives, many foreign cryptography manufacturers are 
citing these regulations as reasons for their prospects to not ``buy 
American''. Even foreign governments sometimes overtly use these 
regulations. For example, ``In a letter sent [in January 1999] to 
India's Central Vigilance Commission (CVC)--an intelligence agency 
comparable to the United States' National Security Agency--the Indian 
Defense Research and Development Organization said the limits the U.S. 
government places on exported encryption products render the products 
too weak for reliable use. The CVC responded that it might mandate that 
all Indian financial institutions buy security software from India'' 
[Dunlap 1999].

5.2 Advertising Related to Cryptographic Controls
    Trade magazines, industry reports, and news articles were searched 
for consumer preference data, including checklists, ease of use'' and 
``best buy'' ratings, etc., to try to find anecdotal justification or 
rebuttal of the claim that consumers strongly prefer U.S.-made 
encryption products and systems incorporating U.S.-made encryption, as 
asserted, for example, in [Ernst 1999].
    We did find a reference to a U.S. government study that 
acknowledged that ``in many countries surveyed, exportable U.S. 
encryption products are perceived to be of unsatisfactory quality'' 
[Commerce/NSA 1996] (date given as June 1995, page ES-3, possibly a 
draft, in [Olbeter 1998]). We also found some information from 
companies that claimed or implied that their products are more secure 
and/or easier to use than American products burdened by U.S. export 
controls. Descriptions of the various export control regimes are found 
in [Baker 1998, Koops 1999, and GILC 1998].

    Examples of the statements of foreign companies are given below.
            Brokat Infosystems AG (Germany)
    Brokat, on its web page [Brokat 1999c] discusses ``Secure 
Communication using 128-bit encryption'' and states that ``In 
comparison to other solutions, X-AGENT allows very secure 
communication. Highly sensitive information can be exchanged using this 
consultation tool. All data is encrypted with the 128-bit Twister 
security component. Even so-called 'weak' Internet browsers, which only 
use a 40-bit encryption due to US government export restrictions can be 
'topped up' accordingly for the duration of the session.''

            Baltimore Technologies plc. (Ireland/United Kingdom/
                    Australia)
    Baltimore Technologies states that WebSecure, a product designed to 
provide secure web server to browser communication is useful because 
``US export restrictions dictate that most web servers and browsers 
cannot perform 128-bit encryption for security. Instead, export 
versions of browsers like Internet Explorer and Netscape Navigator and 
export versions of web servers like Netscape Enterprise Server and 
Microsoft Internet Information Server are limited to 40 bits of 
encryption, which is not secure enough for most applications'' 
[Baltimore 1999b].

            Cybernetica (Estonia)
    Cybernetica advertises ``. . . full strength cryptographic security 
with long keys and no backdoors'' and its Web pages for their products 
prominently feature this selling point.

[GRAPHIC] [TIFF OMITTED] T9984.007

    In their Frequently Asked Questions list on the Web, they go on to 
celebrate the differences between their product and U.S. products:
     Strong crypto? What algorithms are supported? And what key 
lengths?
    IDEA. Triple DES. Blowfish. RSA. Diffie-Hellman. The end user has 
the opportunity of selecting the algorithms he trusts. And, if the user 
so requires, support for further algorithms may be added. You can use 
as long keys as the algorithms you have selected allow you to. There 
are no ``political'' restrictions on key lengths to be used in the 
Privador system.
     What about back doors, key recovery etc?
    There are no back doors built into the Privador system. We can--and 
will--prove It if so required.
     How come you don't care about export restrictions?
    Because there are none. The Privador System is entirely developed 
by Cybernetica, the first private-law R&D institution in Estonia. The 
laws of the Republic of Estonia allow us to export strong cryptographic 
technologies to almost any country in the world.
            Utimaco Safeware AG (Germany)
    On its web site, Utimaco states that [Utimaco 1999b] ``. . . As a 
German manufacturer, Utimaco guarantees that no national key depositing 
requirements (ESCROW) exist which could jeopardize the security of the 
solution . . .''

[GRAPHIC] [TIFF OMITTED] T9984.008

    Note Utimaco's home page, illustrated in Figure 3. It is user-
friendly for speakers of a number of languages. It makes the point that 
Utimaco has representatives in a number of European countries. If the 
user clicks on his or her country (either on the map or on the country 
abbreviation in the vertical list), he or she is transported to a page 
in their native language that further presents Utimaco and its products 
and services. As an example, Figure 4 shows the homepage of Utimaco 
Norway that the user is transported to when Norway is selected from the 
map.

[GRAPHIC] [TIFF OMITTED] T9984.009

            Data Fellows Corporation (Finland)
    Data Fellows makes the readers of its web page aware of U.S. export 
restrictions and states that its products are designed with ``much more 
security'' than U.S. products:
         ``. . . The encryption technology used in the F-Secure 
        products has been developed in Europe and thus does not fall 
        under the US ITAR export regulations. F-Secure products can be 
        used in every country where encryption is legal, including the 
        United States of America . . .'' [Data Fellows 1999b]
         ``. . . F-Secure FileCrypto uses well-known fast block cipher 
        algorithms. You can choose either three-key 3DES or Blowfish. 
        Both algorithms have been analyzed by the world's leading 
        cryptographers. They are known to be strong and safe. These 
        algorithms provide security with a minimum of 168-bit keys. 
        They provide much more security than DES-based or U.S. products 
        that fall under U.S. ITAR export restrictions.'' [Data Fellow 
        1999c].
            JCP Computer Services (United Kingdom)
    JCP takes on U.S. products directly based on export controls [JCP 
1999]:

         ``Many companies are using or considering using 
        implementations of these algorithms which originate in the US. 
        The US government prohibits export of strong cryptographic 
        tools, and, except under specific conditions, only permits the 
        export of weak implementations. These 'crippled' cryptographic 
        tools do not provide sufficient protection to allow Internet e-
        commerce and communications to proceed securely. In an amateur 
        attack on a US export-strength cryptographic routine, the key 
        was broken in 56 hours. And such times will decrease markedly 
        as computer processing power continues to improve.
         ``JCP has developed full strength implementations outside of 
        the US using industry proven standard algorithms. JCP are the 
        leading company outside the US producing high performance 
        cryptographic tools in Java, which has become the Internet's 
        standard programming language. The product provides a set of 
        packages that implement specific cryptography algorithms for 
        use within any Internet application.''

            SSH Communications Security (Finland)
    SSH states on their web site [SSH 1999] that ``The software from 
SSH is free from strict US export restrictions'' as one of ``six good 
reasons why SSH IPSEC Express is the best choise (sic)''; it goes on 
``IPSEC is supposed to be an international standard. However, because 
of export restrictions in different countries. (sic) SSH is one of the 
few to deliver full standards compliance and strong security virtually 
anywhere in the world.''

            RPK Security, Inc. (New Zealand, Switzerland, United 
                    Kingdom)
    RPK advertises on its web site of its flagship RPK Encryptonite 
Engine [RPK 1999], ``Developed outside the U.S., the RPK Encryptonite 
Engine is not subject to US government regulations. It is available 
with strong encryption worldwide, with dramatically better performance 
at significantly lower implementation cost compared with competing 
technologies.'' Reading further on its web site, one finds that ``RPK's 
cryptographic research and product development is based in New Zealand, 
Switzerland and the U.K, with worldwide sales and marketing operations 
in San Francisco, CA.''

                    6. standards and their influence
6.1 Pervasiveness of Standards
    From the material above, one can see that companies vie to have 
encryption products that meet certain accepted worldwide standards. If 
the products do not, they often will not interoperate successfully with 
other computer systems. This section highlights two important 
international standards efforts. Note the contribution of encryption 
expertise from all over the world to both.

            6.1.1 IPsec
    Today's widespread and pervasive use of the Internet has 
accentuated the need for security for the underlying Internet Protocol 
(IP). The IETF has developed the IP Security (IPsec) protocol as an 
integral element of internet security. IPsec is a proposed standard 
Internet protocol designed to provide cryptographic-based security, 
including authentication, integrity, and (optional) confidentiality 
services. While the use of IPsec is currently optional, its use will be 
mandatory for the next version of the Internet Protocol, IPv6 [IPsec].
    As a result of the dramatic impact IPsec will have on improving the 
security of the Internet, there has been enormous interest in 
developing implementations of IPsec. This interest has extended 
throughout the entire world, due to the global nature of the Internet 
and need for cryptographic-based security. Many freely available and 
commercial implementations of IPsec are available or are under 
development. Ted Ts'o of MIT, co-chair of the IETF IPsec Working Group, 
maintains a list of companies implementing (or planning to implement) 
IPsec. The list currently cites implementations from 49 companies 
around the world. At least nine of the companies are from outside the 
U.S. There is also one effort, the KAME Project, being conducted by a 
combination of several Japanese companies (Fujitsu, Hitachi, IIJ 
Research Laboratory, NEC, Toshiba, and Yokogawa) [KAME 1999].
    Another important aspect of IPsec is that it supports encrypted 
``tunnels'', whereby an IP packet is completely encrypted as it travels 
from one point of a network to another. Encrypted tunnels are one of 
the primary means for establishing Virtual Private Networks, or VPNs, 
which emulate private networks over public, shared IP networks, such as 
the Internet.
    IPsec is designed to be independent of any specific cryptographic 
algorithms; it can support several, but it will require one strong 
algorithm, Triple DES; the relatively weak DES will be permitted but 
not required. Specifications have also been developed for the use of 
the IDEA, BLOWFISH, RC5, and CAST strong cryptographic algorithms with 
long key lengths for IPsec [Stallings 1999].

            6.1.2 Advanced Encryption Standard (AES)
    In 1997, NIST solicited algorithms for the Advanced Encryption 
Standard (AES), to replace the Data Encryption Standard (DES) [FIPS PUB 
46-2] as a government encryption standard. Individuals and companies 
from eleven different foreign countries proposed 10 out of the 15 
candidate algorithms submitted to NIST [Smid 1998]:

------------------------------------------------------------------------
                                       Candidate
             Country                   Algorithm         Submittor(s)
------------------------------------------------------------------------
Australia.......................  LOKI97............  Lawrie Brown,
                                                       Josef Pieprzyk,
                                                       Jennifer Seberry
Belgium.........................  RIJNDAEL..........  Joan Daemen,
                                                       Vincent Rijmen
Canada..........................  CAST-256..........  Entrust
                                                       Technologies,
                                                       Inc.
                                  DEAL..............  Outerbridge,
                                                       Knudsen
Costa Rica......................  FROG..............  TecApro
                                                       Internacional
                                                       S.A.
France..........................  DFC...............  Centre National
                                                       pour la Recherche
                                                       Scientifique
                                                       (CNRS)
German..........................  MAGENTA...........  Deutsche Telekom
                                                       AG
Japan...........................  E2................  Nippon Telegraph
                                                       and Telephone
                                                       Corporation (NTT)
Korea...........................  CRYPTON...........  Future Systems,
                                                       Inc.
USA.............................  HPC...............  Rich Schroeppel
                                  MARS..............  IBM
                                  RC6...............  RSA Laboratories
                                  SAFER+............  Cylink Corporation
                                  TWOFISH...........  Bruce Schneier,
                                                       John Kelsey, Doug
                                                       Whiting, David
                                                       Wagner, Chris
                                                       Hall, Niels
                                                       Ferguson
UK/lsrael/Norway................  SERPENT...........  Ross Anderson, Eli
                                                       Biham, Lars
                                                       Knudsen
------------------------------------------------------------------------

    ``Of the five submissions likely to be chosen for the next round, 
about half will be from outside the U.S. It is very possible that the 
next U.S. government encryption standard will have been designed 
outside the U.S.'' [Schneier 1999].

                             7. conclusions
    Based on the research described above, we arrive at two 
conclusions:

    1. Foreign development of cryptographic products is not only 
continuing but is expanding to additional countries.
    2. Communications-related cryptography is experiencing high growth, 
especially in electronic mail, VPN, and IPsec products.

7.1 Foreign Development of Cryptography Continues to Grow
    There are now 805 cryptography products produced in 35 countries 
outside the United States. In at least 67 countries, 512 foreign 
manufacturers and distributors are involved. In just three weeks, with 
limited resources, we identified 149 foreign cryptographic products new 
to market since the December 1997 TIS survey.
    It is difficult to gauge how many additional products would be 
identified, given sufficient time and resources, but it is safe to 
anticipate that we would identify many more products from the countries 
within the database, and possibly several additional countries.
    Development of cryptographic products in nations around the world 
is increasing. Moreover, as additional nations seize opportunities in 
e-commerce, nation-centric islands of competence develop, as do 
ultimately international markets. Often these islands of competence are 
developed by bright young entrepreneurs and computer scientists who 
have trained elsewhere (often the United States) and then play key 
roles in jump-starting their native countries' e-commerce. This fits 
nicely in the theory of technoglobalization, as espoused by Robert 
Reich, discussed more in Section 8.

7.2 Communications-Related Cryptography Leads Storage Cryptography
    Within the 149 new products we discovered, communications-related 
products, as opposed to data storage encryption, were predominant. It 
appears that the efforts of the Internet Engineering Task Force (IETF) 
to provide standardized protocols for the Internet has facilitated the 
development of solutions and products to communications related 
problems. We conjecture that this and the expansion of e-commerce have 
resulted in a high growth of communications related cryptographic 
products such as those for electronic mail, VPNs, and IPsec.
    Ipsec's support of encrypted tunnels will greatly improve security 
for private, enterprise-based networks. As the comfort level of users 
(and organizations) grows, and as the potential and actual gains of 
(consumer to business and business to business) e-commerce become 
apparent, there will be increased worldwide need for communications-
related cryptography.

                           8. future research
    To date there have been only a few efforts to attempt to quantify 
the impact of regulatory measures on the international cryptographic 
market [Olbeter 1998, BSA 1998, CDT 1997]. The TIS survey and this 
effort to update the foreign products inventory of the database have 
been one of the few ways to quantitatively assess the state of the 
market over time. As noted in Section 7, we saw developments both in 
countries already producing cryptographic products and expansion into 
new countries that did not have cryptographic product development as of 
December 1997. We saw a number of firms become multinational.
    In the face of continuing U.S. export controls on encryption 
products, technology, and services, some American companies have 
financed the creation or growth of foreign cryptographic firms. We have 
seen some U.S. companies (e.g., PGP, RSA, Sun) buy some foreign 
expertise, leaving it in place (rather than bringing the talent back to 
the United States). With this expertise offshore, the relatively 
stringent U.S. export controls for cryptographic products can be 
avoided, since products can be shipped from countries with less 
stringent controls. All of these facts indicate that both nations and 
companies see opportunities in this rapidly changing technological 
market, and it could be argued that globalization plays a major role in 
future growth for this market.
    This is not a case of the technology slipping away from the United 
States. The technological expertise is already available in many places 
around the world. Indeed, we noted earlier that the majority of 
submissions for the Advanced Encryption Standard (AES) have been 
designed outside the United States. This may be simply an example of 
the general thesis of economists David Mowery and Nathan Rosenberg 
[Mowery 1989], who argue that, in general, foreign firms' technological 
sophistication has caught up with that of the United States in many 
cases. In those cases, they reason:

         ``Since foreign firms now are more technologically 
        sophisticated and technology is more internationally mobile, 
        however, the competitive advantages that accrued in the past 
        from basic research and a strong knowledge base have been 
        eroded. Faster international transfer of new technologies is 
        undercutting a major source of America's postwar superiority in 
        high-technology markets.'' (p. 218)

    Our empirical product data could be combined with economic measures 
and economic theories to better explain why we are seeing the observed 
growth in encryption products and companies around the world, and to 
examine the effects of Internet growth, e-commerce development, and 
regulatory actions on the international cryptographic market over time.
    Porter [1990], for example, tests his theses by using quantitative 
measures from several nations, by industrial sector. His national 
economic profiles include primary goods, machinery, and specialty 
inputs and services data for each industrial sector. Given appropriate 
quantitative measures, similar work could be done for the international 
cryptography market.
    As the global information-based economy continues to grow, and as 
the nature of industrial research and development continues to shift 
from nation-centric to international collaboration, we will continue to 
witness more rapid technological development and global economic 
growth. We should be able to put together previous economic work 
[Duysters 1996] with material already available on the information 
technology sector [Mowery 1996, Rosenberg [1992] and the data in this 
study to better understand the changes we are seeing in the global 
marketplace and thus be able to more easily adjust national laws for a 
global economy.

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                               __________

                               Appendices

                        a. call for information
    Please forward this message to others who are interested on the 
topic. A WWW-version of this message can be found at http://
www.seas.gwu Xedu/seas/institutes/cpi/cryptosurveylcall4info.html
    Non-U.S. Cryptographic Product Survey Call for Information
    The George Washington University and NAI Labs, The Security 
Research Division of Network Associates (formerly the research division 
of Trusted Information Systems) are conducting a survey to identify 
cryptographic products manufactured outside the United States and are 
examining product specifications to assess their functionality and 
security.
    We are soliciting input from those with knowledge of cryptographic 
products through the use of this survey form. If you know of 
cryptographic products that are manufactured in countries other than 
the United States, please complete this form and submit it to the 
Cyberspace Policy Institute (CPI) NO LATER THAN TUESDAY MAY 18, 1999. 
You may submit this form via email to cpiWseas.gwu.edu or fax at (202) 
994-5505 in Washington D.C.
    In addition, we ask you to send or post this survey to anyone or 
place that would have knowledge of cryptographic products. Inquiries 
about this survey may be made to the Cyberspace Policy Institute at 
[email protected] or (202) 994-5512. This survey may also be found on 
the CPI Web site at http://www.seas.gwu.edu/seas/institutes/cpi.
    Your cooperation is greatly appreciated.
    Professor Lance J. Hoffman, The George Washington University David 
Balenson, NAI Labs, The Security Research Division of Network 
Associates

                 NON-U.S. CRYPTOGRAPHIC PRODUCT SURVEY
    DATE:
    COMPLETED BY:
    Your Name:
    Phone:
    E-mail:

                    NAME AND ADDRESS OF MANUFACTURER

    Name:
    Address:
    City:
    State:
    Zip Code:
    Country:
    URL:

                    MANUFACTURER CONTACT INFORMATION

    Name:
    Phone:
    E-mail:
    Title:
    FAX:
    800#:

                          PRODUCT DESCRIPTION

    Name (including model and version information):
    Product-specific URL:
    Is it software-only, hardware-only, or a software/hardware 
combination?
    What does it encrypt (e.g., disk, file, communications, FAX, voice, 
magnetic tape, electronic mail)?
    If embedded software or hardware, what platforms does it support 
(e.g., PC, Mac, UNIX workstation, IBM mainframe), else if standalone 
hardware, what interfaces does it support (RS-232, telephone, V.24, 
V.35)?
    If software, is it in the form of a kit or as an end-user program, 
else if hardware, what is the embodiment (e.g., chip, board, PCMCIA 
card, smart card, box, phone)?
    What algorithms does it employ for data encryption (including 
proprietary algorithms and key length)?
    If applicable, what algorithms does it employ for key management 
(including proprietary algorithms and key length)?
    If applicable, what algorithms does it employ for data 
authentication (including proprietary algorithms)?
    How is the product sold or distributed (e.g., store front, mail 
order, telephone order, World Wide Web, anonymous ftp over the 
Internet)?
    If applicable, what is the quantity one purchase price?
    (Optional) Approximate number of units sold or distributed?
    (Optional) Approximate date product was first available?
    Please provide a list of the names and relationships of any 
associated companies (e.g., parent company, sister company, 
distributors). Include full address and contact name, title, phone, 
FAX, and e-mail address.Other information:
    Please Provide a Copy of Any Relevant Product Literature.
    Send completed forms and product literature via e-mail to 
[email protected] or via fax to the Cyberspace Policy Institute at 202-
994-5505 in Washington D.C.
    Thank You!
    This survey is part of an ongoing worldwide study of cryptographic 
products started in April 1994 by Trusted Information Systems and Dr. 
Lance J. Hoffman of the George Washington University. The December 1997 
summary results of the survey are available on the World Wide Web at 
http://www.nai.com/products/security/tis__research/
cryptolCrypt__surv.asp.

          B. SUMMARY LISTING OF FOREIGN CRYPTOGRAPHIC PRODUCTS

    The following table is a summary listing of the foreign products 
currently contained in the cryptographic product database. We cannot 
guarantee the accuracy and completeness of this information. In many 
cases, products may support additional platforms or interfaces, encrypt 
additional types of information, include additional embodiments, or 
support additional encryption algorithms. Additional information will 
be available on the NAI Labs Crypto Products Survey Web page at http://
www.nai.com/products/security/tis__research/crypto/crypt__surv.asp.

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    C. FOREIGN ENCRYPTION MANUFACTURERS AND DISTRIBUTORS BY COUNTRY

    The following table is a summary listing of the foreign companies 
that manufacture or distribute cryptographic products.
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D. REPORT OF THE PRESIDENT'S EXPORT COUNCIL SUBCOMMITTEE ON ENCRYPTION, 

                 WORKING GROUP ON INTERNATIONAL ISSUES

    The following findings have been adopted by the PECSENC as a 
reflection of conditions of international competition prior to the U.S. 
Government's liberalization of encryption export controls announced on 
September 16, 1998. The liberalization may affect many of these 
findings, and the findings will be used as a baseline for a review of 
the effects of the liberalization in future sessions of the PECSENC.

    1. The difference between U.S. encryption controls and those of 
other nations is a serious--but not the only--factor determining 
success in the computer security market. With or without controls, both 
U.S. and foreign products are likely to continue to coexist, and other 
factors are likely to continue to slow deployment of security products. 
Many foreign companies, for example, especially those influenced by 
governments, will continue to favor domestic security solutions, and 
many computer users will not deploy serious security technology until 
there have been major incidents with losses that can be attributed to 
lack of encryption.

    2. Nonetheless, the adverse impact of controls on U.S. industry is 
palpable. For many software applications, business customers simply 
demand security and encryption; it is a checklist item, and its absence 
is a deal breaker. While simply counting the number of foreign 
encryption software products in the market is not an accurate measure 
of the impact of controls, one particularly serious risk is that non-
U.S. companies will use their ability to export stronger encryption as 
``leverage'' to dominate particular applications.
    This has happened in at least one field--Internet banking--and may 
occur in other areas of electronic commerce. Brokat, a German company 
that scarcely existed four years ago, now has 250 employees and offices 
in several countries including the United States. Brokat's specialty is 
Internet banking and electronic commerce, but it broke into that 
business on the strength of being able to offer stronger encryption 
than German banks could obtain in Netscape or Microsoft browsers. It is 
now a major player in this niche, with 50% of the European Internet 
banking market and enough U.S. customers to justify a 20-person U.S. 
branch office. Meanwhile, encryption constitutes 10% or less of 
Brokat's revenue, and it has expanded its initial Internet banking 
offerings to include support for other forms of electronic commerce. 
Loss of U.S. competitiveness in the electronic commerce software market 
obviously raises concerns not just about encryption software but other 
software opportunities. Indeed, it foreshadows a weakening of the U.S. 
position as a leader in electronic commerce generally.

    3. The persistent emphasis in U.S. export control policy over the 
past two years on key recovery, or ``lawful access,'' has also taken a 
toll on the credibility of U.S. security products. Key recovery 
continues to find a market. Business wants to ensure that data are 
available for corporate purposes, including litigation. Key recovery is 
seen as an important feature for stored business data (though not for 
communicated data in transit).
    But the use of export controls to drive the key recovery market 
further than it would go by itself is hurting U.S. industry. Foreign 
governments and competitors, particularly in Europe, have 
misinterpreted this U.S. policy, perhaps deliberately. In essence, 
foreign customers are told often by their governments as well as local 
security companies that all U.S. encryption products come with a back 
door allowing the U.S. government to read the contents. In part this is 
the result of outmoded ``Recovery'' supplements to U.S. export rules 
that demand an unrealistic level of U.S. government access to key 
recovery products. In part it reflects the hostility of many foreign 
governments toward U.S. key recovery and access policies. It also 
reflects the fact that some countries will simply never rely on 
security products that are not home-grown, and misunderstanding U.S. 
key recovery policies may simply be a handy stick to beat U.S. products 
with. But it is unfortunate that the U.S. government has provided such 
a large and easily wielded stick.

    4. U.S. controls are driving many U.S. companies into ``cooperative 
arrangements'' with foreign encryption suppliers. These cooperative 
arrangements allow U.S. companies to provide complete security 
solutions by encouraging their foreign partners to marry foreign-made 
crypto with U.S. commercial applications. These cooperative 
arrangements are highly risky under U.S. Iaw, but they are not unlawful 
per se. Given the stakes, many companies have been prepared to take 
risks under U.S. law, and it is expected that more will do the same. 
The result is that U.S. policy has fostered the development of 
cryptographic software and hardware skills outside the United States. 
German, Swiss, Canadian, Russian, and Israeli cryptography companies 
have all benefited from this unintended consequence of U.S. encryption 
policy.

    5. The U.S. government has made efforts to ``level the field'' of 
disparate export controls for encryption through negotiations under the 
Wassenaar Agreement. The U.S. proposal that 56-bit encryption become a 
new ``floor'' for encryption exports under Wassenaar, while certainly 
better than current policy, is likely to be implemented at least a year 
and perhaps several years too late. In response to the U.S. KMI 
initiative, which conditionally decontrolled 56-bit encryption in 
December 1996, other countries also decontrolled 56-bit DES but more or 
less unconditionally. The countries include Canada and apparently the 
United Kingdom. And by 1996, other countries, such as Germany, already 
were approving the export of 56-bit DES to virtually any country for 
virtually any purpose. Most recently, the exhaustion of a 56-bit DES 
key using a machine built for a quarter million dollars has entirely 
discredited DES as a serious security tool for valuable secrets. Single 
DES remains a useful tool for assuring privacy against a wide variety 
of potential adversaries and snoops, but decontrolling 56-bit 
encryption will not provide a significant boost to the competitiveness 
of U.S. technology for serious security applications.

    6. Process and timing: In 1995, the State Department approved 
routine license applications for the export of encryption in less than 
a week on average. This was when the State Department had jurisdiction 
over encryption and NSA staffed the State Department's office and 
handled all encryption license applications.
    This is no longer the case. The Commerce Department has staffed up 
heavily in the encryption field, but its processes now include parallel 
reviews by the FBI and NSA under a 30-day deadline that can be extended 
further with a simple ``no'' vote by either agency. For whatever 
reason, these agencies are now taking the full 30 days--and often 90 
days. Against a backdrop of continued export liberalization over the 
past four years, this degradation in export control performance strikes 
a jarring note.
    The Commerce Department's performance in this area is not 
necessarily out of line with the performance of other countries. The 
German government often takes two to three months to approve a license 
for a new product and six weeks to approve a license for routine 
shipments. The difference is that German companies know with certainty 
that a license will be issued at the end of the process; and the German 
government imposes no key recovery requirement on exporters. Therefore, 
they can make commitments to deliver products that require a license 
even before they get the license. In the United States, both the FBI 
and NSA have at times cast votes intended to roll back existing 
policies, and they have at a minimum managed to stall licenses that 
seemed to fit existing policy. A key recovery policy, for example, has 
been applied sporadically to U.S. multinationals and with some 
inconsistency to other exports. For this reason, it is not prudent for 
exporters to assume that a license will be issued or to make 
commitments on the assumption that the license will be issued--even 
when existing policy makes it seem likely that a license will 
eventually be granted. Because an RFP by a foreign company may provide 
only 30 days for responsive proposals, and the proposals often must 
include an assurance that an export license will be obtained, some U.S. 
companies lose bidding opportunities simply because the U.S. government 
does not process licenses quickly enough.
    In other respects, of course, Commerce Department practice is a 
large improvement over State's performance. This is particularly true 
for controversial licenses, on which Commerce typically forces a 
decision over a course of months. In contrast, State Department 
licenses could be held up for months without any explanation and there 
were no deadlines for resolving interagency disputes. Nonetheless, it 
seems clear that the Commerce Department and the other participants in 
the encryption licensing process should adopt additional procedures to 
speed the granting of relatively non-controversial licenses.

    Senator Frist. Thank you very much, Mr. Hoffman.
    Let me begin with Mr. Bidzos. You mentioned that the 
Administration probably underestimates--you did not say 
``probably''--underestimates companies overseas, and you 
mentioned the 3-year delay. Could you comment on both of those?
    Mr. Bidzos. Yes, Mr. Chairman, I would be happy to. When I 
testified almost 10 years ago I was predicting that we would do 
economic harm to ourselves if we continued to control 
encryption, and that turned out to be true. It took 9 years for 
us to really see it. In fact, we warned at the time that by the 
time we could point to the damage--because the Administration 
was saying, ``Show us where the harm is, show us how you are 
being hurt,'' and my response was: ``By the time I can show you 
lost market share, it is probably too late for you to help me 
get it back at that point.''
    So let me now again, 9 years later, look out 3 years and 
see what might happen. First of all, I think the Administration 
underestimates the extent to which foreign competitors wish to 
emulate us. Look at the role that information technology plays 
in the growth of the U.S. economy. It is absolutely the driving 
force. It is the engine that is driving unprecedented economic 
growth, unprecedented in history. The amount of jobs created, 
the amount of revenue generated, the amount of innovation, the 
absolute dollars involved are absolutely unprecedented.
    Our foreign competitors are quite aware of this. They are 
starting to tap public markets for funds to grow. They are 
starting to target opportunities created by U.S. export policy. 
Two quick examples of how they are doing that and what the 
stakes involved are.
    First of all, they are actually starting to identify larger 
products of which encryption is a critical feature and they are 
starting to build products of those types. They are seeing an 
opportunity not only to get the encryption revenue, but to get 
2, 3, 10, or 20 times the encryption revenues by making a 
complete product sale.
    They also, of course, just by virtue of coming into 
business as an encryption company because of the opportunity 
created by U.S. export law, exist and therefore they are able 
to take advantage of opportunities that they see. If not for 
export law, they would not even exist.
    There is a company in Germany called Brokat which now 
employs over a thousand people, has raised money in the public 
market with a very successful public offering, would not exist 
if it were not for the opportunities created by U.S. crypto.
    To go directly to your question, the 3-year timeframe 
before we can export encryption as strong as the AES, well, 
first of all, everybody knows that 3 years today is like 15 
years was 10 years ago. We live in the Internet age and things 
happen very, very quickly. Three years is a lifetime. Those 
companies will exploit opportunities in ways that I mentioned 
and in other ways that we cannot imagine.
    But the real price that we will pay is this. They 
essentially--it is not a national information infrastructure we 
are talking about, as the Vice President used to call it. It is 
a global information infrastructure, there is no question 
whatsoever. If you look in today's papers, you will conclude 
very quickly that around the clock global trading of securities 
is just around the corner. That is not going to happen without 
a secure information infrastructure and that information 
infrastructure will be secured, it will be global. The only 
question is who is going to build it.
    The way things sit today, U.S. companies will not build it. 
U.S. companies will not play the role in building it that they 
might play.
    So these infrastructures that get built are I think 
critically important in ways we cannot appreciate right now. 
The company that gets in and builds the infrastructure will 
have the inside track in selling products and services for 2, 
5, 10, and maybe even 20 years down the road because of that 
early position they stake out for themselves as the 
infrastructure provider. They set the standards, they have the 
relationship, etcetera, etcetera.
    So this 3 years I am afraid is going to cost us 
tremendously.
    Senator Frist. In S. 798 we streamline the procedure for 
receiving an export license by putting a maximum number of days 
in each step, and you argue that is not enough. Are you arguing 
for an alternative or are you saying that there should not be 
these export control policies?
    Mr. Bidzos. Well, maybe I can answer that question by 
referring to something that Secretary Reinsch said. Secretary 
Reinsch compared encryption in one respect to supercomputers, 
machine tools, biotech, and said that if foreign availability 
were the sole criteria we would have no export controls on all 
of those other products. I would submit that encryption does 
not belong in that category.
    If you want to build a supercomputer, if you want to build 
one and build a lot of them in particular, you need to have 
incredibly sophisticated technology to manufacture these 
computers. It is incredibly expensive. You need people with 
tremendous specialized skills. Just building the systems that 
can cool the operating supercomputer is incredibly 
sophisticated. The same is true of manufacturing machine tools. 
The same thing is true of biotech. You need sophisticated 
technology just to build the laboratories, the tools, the 
instruments.
    For encryption all you need is a high school textbook and a 
personal computer. I guess you need Internet access, too, so 
that brings it down to about 100 million people who are 
probably capable of doing it. All you need to get into business 
and duplicate and sell that software is a web site. That may 
bring it down to 80 million, but it does not get much smaller 
than that.
    You have got companies in South Africa, in Estonia and 
other places who advertise the fact that they can simply ship 
you strong encryption that is not subject to U.S. export 
controls. So we are really in a different situation, where the 
technology is available and we are not competitive.
    Senator Frist. Thank you.
    Professor Hoffman, you have been studying the growth of 
foreign encryption products for a long time and I appreciate 
your work very much and your written testimony as well. Do you 
believe that U.S. export controls have been effective in 
controlling the development of encryption overseas?
    Dr. Hoffman. Well, I think you can see from the results of 
our survey they have been, I would say, marginally effective. 
They have had some effect, but I think overall the market has 
had more effect than the U.S. legislation.
    Senator Frist. Mr. Aucsmith, do you have comments on 
anything that has been said?
    Mr. Aucsmith. I would make one slight addition to Jim's 
statement about our 3-year window. That has two parts to it. 
One thing is that the international Internet as we now know it 
exists because there are international standards. That is what 
allows everything to work together. It is the glue that holds 
things together. At this time there are two particular 
standards being defined worldwide that deal with the security.
    IPsec, the Internet Protocol Security Standard, the very 
thing that will secure point to point connections on the 
Internet, is being finalized, and already there are many, many 
countries producing technology that will go into that. If my 
company and others in the United States cannot participate for 
3 years, we will be locked out forever. It is that simple.
    The second is, and this is particular to hardware, while we 
might think we move at an Internet speed, our development 
cycles mean that there is a long lead time on the piece of 
hardware, but in the microprocessor area I am working on a 
microprocessor design that you will not see until the year 
2003. I have to make a billion dollar bet today on whether or 
not I can export that in 2003. It is very, very hard without 
some assurance of what the world will look like in terms of 
legislation at that particular time.
    So we will be held out. Every day that this is delayed is a 
day that we miss products a long time from now.
    Senator Frist. Mr. Aucsmith, could you comment on who 
should be the trusted parties for recoverable, key recoverable 
products?
    Mr. Aucsmith. Actually, as I stated before, I am not in 
favor of key recoverable products, for two primary reasons. One 
is I think that they fundamentally will not work well, for 
communications products I do not think that there is any market 
for that. There is no market need. One could be created 
artificially by government regulation, but there is no market 
need.
    For stored data, I think the majority of data--in order to 
be of any use, information has to be shared. It is a rare 
commodity in information that is valuable and not shared, 
meaning that if the proverbial person is hit by a bus it is 
unlikely that he or she is the only one that has access to that 
information. In fact, in most corporations mission-critical 
information is stored on databases and is kept in separate 
mechanisms that have separate access control. I submit that 
corporations have been dealing with this for quite some time 
already.
    So I would say that in general there should not be trusted 
third parties, at least not for the key recovery or access 
control point of view.
    Senator Frist. Mr. Bidzos, could you tell me a bit more, 
the committee a bit more, about the Internet standards in 
setting security requirements? Is the 128-bit encryption now 
the norm?
    Mr. Bidzos. Yes, it is, Mr. Chairman. There is absolutely 
no question about that. In fact, both in and outside the United 
States that is the case. Now, I know some of the other 
witnesses said that it is not used quite as widely as you might 
be led to believe. I think certainly in the past we have been 
guilty, as people in industry, of trying to look out into the 
future and saying, well, this is what is going to happen to us 
if these export control policies do not change and, sure, maybe 
we have tended to sort of look at the worst case scenario or 
closer to that maybe than the middle. But I think the 
Administration is guilty of some of the same.
    Let me give you a couple of specific examples. If you want 
to bank online with Wells Fargo in California or if you want to 
access your mutual fund account at Fidelity or any other of 
scores of financial services institutions, if you want to buy 
or sell stock online with E-trade, your browser must have 128-
bit encryption or you cannot do it. Their servers are 
configured such that nothing but a browser enabled at 128 bits 
will work at all.
    So even in cases where some people are using the 
``exportable'' lower key lengths in some of these browsers, the 
primary reason they are doing it is because they are not aware 
that they are doing it and they have not upgraded. But as soon 
as they try to use one of these services, they find out that 
they need to upgrade. This is in the United States. Only under 
certain conditions can those be sold outside the United States.
    So the standards that David alluded to are being developed. 
They are global standards. The participants in the standards-
making process are from all over the world. And David is 
absolutely right that companies outside the United States are 
rapidly moving to build products that comply with those 
standards and, as we heard from the earlier panel, those 
foreign competitors of ours will be able to sell worldwide, 
including in the United States, and we will not. And that is a 
competitive disadvantage that we will find it very difficult to 
live with and that we will probably never recover from if we 
have to wait 3 years.
    Senator Frist. With key length clearly being a moving 
target even in one hearing, but also as we project ahead, and 
you are developing products for 3 years from now, and we know 
that technology is going to progress much faster and that is 
sort of the theme of this morning, we have advocates for the 
128-bit encryption products rather than 64-bit products. How do 
you propose that we deal with these technological changes 
legislatively so that we do not have obsolete legislation 
within 6 months of the time we pass it, recognizing the changes 
that are under way?
    Anybody on the panel? Mr. Aucsmith.
    Mr. Aucsmith. There is a fallacy in trying to regulate 
technological advancement in general. If you tie it to specific 
technologies--and in this case, tieing it to specific bit 
lengths I think it is tieing it to specific technologies. We 
cannot anticipate necessarily what the market will want 3 years 
from now in terms of bit length. I would submit that the best 
way to deal with this in a legislative point of view is to deal 
with the effects of the technology rather than the technology 
itself, because I think there is a treadmill that you could get 
on, having to revisit this very issue every 3 years, which I do 
not think would be productive for anyone involved. I think if 
you have it welded to some specific value or some specific 
technology or specific implementation, you are rife with that.
    Dr. Hoffman. Mr. Chairman, I agree with the previous 
witness. It is ill-advised to legislate using bit length only 
or even some other technological mechanisms. What we have seen 
in the last several years on this is people focusing on 
specific things like bit length and avoiding the inevitable, 
which is what is going to happen when we do have, if you will, 
ubiquitous, strong, secure encryption. What kind of world is it 
going to be, how are we going to operate?
    We have seen a lot of government resources devoted towards 
this battle, rather than towards looking at the future and 
trying to shape it in a more reasonable way.
    Senator Frist. Could you, any of the panelists, comment on 
what efforts are being made by industry to address the law 
enforcement agencies' security concerns and develop viable 
schemes? What is being done? Where are we today? Mr. Aucsmith?
    Mr. Aucsmith. Obviously, the majority of industry is 
extremely sensitive to the realities of both law enforcement 
and national security issues. I would submit that I am 
personally scared of what the future could hold. I think we all 
should be along those lines.
    What we are doing to try to prevent a disaster, if you 
will, is if you believe that there is an inevitability of this 
technology being available and its widespread use is inevitable 
and I think that is about the main point that we tend to 
disagree with the Government on, is the speed and 
inevitability, if you will, of that happening the only way to 
deal with this issue is for a very close cooperation between 
the industry that is creating the change and innovating the 
change and the law enforcement and intelligence communities 
that need to be able to on occasion use that change to their 
advantage.
    I think things like the national technical center for FBI's 
competency, I think that is exactly the correct step in the 
right direction. I think closer cooperation between industry 
and the Government in terms of assessing vulnerabilities and 
assessing strengths and weaknesses of various technologies I 
think is also part of that.
    If you will, no commercial product will ever be 100 percent 
secure because it is not really economically feasible for us to 
squeeze that last couple of percent out of it. So there will 
always be vulnerabilities in almost anything that is put out 
there. Currently those vulnerabilities are exploited by what we 
would call hackers, if you will, to coin from recent movies, 
the dark side. What we should be able to do as a government and 
as responsible industry is, if you will, make the Government 
the better hackers. It is relatively that simple.
    Senator Frist. Comments, Mr. Bidzos?
    Mr. Bidzos. Yes, Mr. Chairman. Thank you. Well, I guess 
part of the problem is I think that industry has sort of been 
busy actively rebuffing a lot of proposals from government over 
the last dozen years. For example, in 1993 the so-called 
``Clipper Chip,'' the first government solution to government 
access--take my product, embed it in all the products that you 
build, and that will give me the access--was rebuffed. It just 
was not something anybody wanted to use.
    Later came key recovery and I think government again failed 
to realize how industry would view key recovery. One simple 
analogy I can offer you from some of my experience in talking 
to people in the end user community in large end user 
organizations, financial companies. One of them described it 
very well to me, why they objected to some sort of government 
access to keys.
    They said: ``Well, darn it, the Government just does not 
understand how things work out here.'' They said: ``Look, if we 
are involved in some sort of litigation or some other form of 
legal dispute, perhaps even being sued by the Government, some 
sort of antitrust action for example, in all these cases the 
way the drill works is as follows: A subpoena is delivered, our 
lawyers review it, and we produce the documents that comply 
with the request.''
    We do not give them a key and say: ``Look, the documents 
are stored in that building; here is the key; find what you 
need and take it, and we will see you later.'' Essentially, 
that is how they viewed the proposal for government access to 
encryption keys, and I think that analogy actually holds up 
very well.
    So you can understand why people resisted it. People do not 
give some third party a copy of all of the physical keys to 
their facilities. They have some small organization, a security 
organization, inside their own company that manages that.
    So again, some close cooperation I think would go a long 
way towards easing, bridging the gap. However, if, as is 
currently happening, all of the people developing this 
technology happen to be located in Israel, Singapore, Japan, 
Ireland, and Germany, it is going to be pretty tough for the 
U.S. Government to interact with them and learn and understand 
and develop products that meet the needs of worldwide industry 
and certainly U.S. industry.
    I think that helps. To me that sort of indicates one of the 
problems with the current policy. It is gambling heavily.
    I do not have a security clearance and I do not know what 
it was that Director McNamara might have been referring to when 
she said she would offer some testimony about the threats of 
ubiquitous encryption, she would offer that in a closed 
session. But after this many years in the business and spending 
a lot of time with people who are in that part of it--in fact, 
I have often awaken at night having dreamed that I was served 
with a clearance for some of the things I have probably heard I 
should not have--I think it is fair to say that more than 
likely it comes down to ubiquitous encryption increasing the 
cost and complexity of intelligence gathering.
    What we have to weigh against that additional cost is the 
cost to industry in the future. I think for the first time 
certainly since I have been in this business for 14 years, we 
are starting to actually be able to see and identify and 
quantify some of the costs to us of maintaining the current 
policies.
    So hopefully we can strike that better balance. I think the 
PROTECT Act with some additional amendments would strike a far 
better balance than we have now.
    Senator Frist. Thank you.
    Clearly, today's discussion centers on the security of our 
Nation, the wellbeing of our Nation, and it is clear that we 
cannot bind the hands of our American businesses in this new 
economy that we have all seen really flourish over the last 10, 
15, 20 years, and especially over the last 3 to 4 years. We 
need to make sure that we can compete nationally, 
internationally. Otherwise we will surrender our global 
leadership position.
    As Federal lawmakers and policymakers, we need to be 
proactive and we need to be educated, and thus I thank all of 
our panelists today for participating in that process in this 
complex policy debate.
    A number of my colleagues, the chairman and Senator Burns 
and Kerry and Abraham and Wyden and a number of others, have 
worked very hard, and I thank them for their dedication to an 
issue that is incredibly important to business, to security, 
and to the national interest.
    I want to thank this final panel today, as well as the 
panels earlier. We will continue to work with you on this very 
complex but very important policy debate.
    With that, we stand adjourned.
    [Whereupon, at 11:45 a.m., the committee was adjourned.]

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