Mr. LUCAS of Oklahoma, Mr. LUTHER, Ms. MCCARTHY of Missouri, Mr.
MCDERMOTT, Mr. MCGOVERN, Mr. MCINTOSH, Mr. MALONEY of Con-
necticut, Mr. MANZULLO, Mr. MARKEY, Mr. MARTINEZ, Mr. MATSUI,
Mrs. MEEK of Florida, Mr. METCALF, Mr. MICA, Ms. MILLENDER-
MCDONALD, Mr. GEORGE MILLER of California, Mr. MOAKLEY, Mr.
MORAN of Virginia, Mrs. MORELLA, Mrs. MYRICK, Mrs. NAPOLITANO,
Mr. NEAL of Massachusetts, Mr. NETHERCUTT, Mr. NORWOOD, Mr.
NUSSLE, Mr. OLVER, Mr. PACKARD, Mr. PALLONE, Mr. PASTOR, Mr.
PETERSON of Minnesota, Mr. PICKERING, Mr. POMBO, Mr. POMEROY,
Mr. PRICE of North Carolina, Mr. QUINN, Mr. RADANOVICH, Mr. RA-
HALL, Mr. RANGEL, Mr. REYNOLDS, Ms. RIVERS, Mr. ROHRABACHER,
Ms. ROS-LEHTINEN, Mr. RUSH, Mr. SALMON, Ms. SANCHEZ, Mr. SAND-
ERS, Mr. SANFORD, Mr. SCARBOROUGH, Mr. SCHAFFER, Mr. SESSIONS,
Mr. SHAYS, Mr. SHERMAN, Mr. SHIMKUS, Mr. SMITH of Washington,
Mr. SMITH of New Jersey, Mr. SOUDER, Ms. STABENOW, Mr. STARK,
Mr. SUNUNU, Mr. TANNER, Mrs. TAUSCHER, Mr. TAUZIN, Mr. TAYLOR
of North Carolina, Mr. THOMAS, Mr. THOMPSON of Mississippi, Mr.
THUNE, Mr. TIAHRT, Mr. TIERNEY, Mr. UPTON, Mr. VENTO, Mr.
WALSH, Mr. WAMP, Mr. WATKINS, Mr. WELLER, Mr. WHITFIELD, Mr.
WICKER, Ms. WOOLSEY, and Mr. WU) introduced the following bill; which
was referred to the Committee on the Judiciary, and in addition to the
Committee on International Relations, for a period to be subsequently de-
termined by the Speaker, in each case for consideration of such provisions
as fall within the jurisdiction of the committee concerned
A BILL
To amend title 18, United States Code, to affirm the rights
of United States persons to use and sell encryption and
to relax export controls on encryption.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Security And Freedom
through Encryption (SAFE) Act’’.
SEC. 2. SALE AND USE OF ENCRYPTION.
(a) IN GENERAL.—Part I of title 18, United States
Code, is amended by inserting after chapter 123 the fol-
lowing new chapter:
‘‘CHAPTER 125—ENCRYPTED WIRE AND
ELECTRONIC INFORMATION
‘‘2801. Definitions.
‘‘2802. Freedom to use encryption.
‘‘2803. Freedom to sell encryption.
‘‘2804. Prohibition on mandatory key escrow.
‘‘2805. Unlawful use of encryption in furtherance of a criminal act.
‘‘§ 2801. Definitions
‘‘As used in this chapter—
‘‘(1) the terms ‘person’, ‘State’, ‘wire commu-
nication’, ‘electronic communication’, ‘investigative
or law enforcement officer’, and ‘judge of competent
jurisdiction’ have the meanings given those terms in
section 2510 of this title;
‘‘(2) the term ‘decrypt’ means to retransform or
unscramble encrypted data, including communica-
tions, to its readable form;
‘‘(3) the terms ‘encrypt’, ‘encrypted’, and
‘encryption’ mean the scrambling of wire commu-
nications, electronic communications, or electroni-
cally stored information, using mathematical for-
mulas or algorithms in order to preserve the con-
fidentiality, integrity, or authenticity of, and prevent
unauthorized recipients from accessing or altering,
such communications or information;
‘‘(4) the term ‘key’ means the variable informa-
tion used in a mathematical formula, code, or algo-
rithm, or any component thereof, used to decrypt
wire communications, electronic communications, or
electronically stored information, that has been
encrypted; and
‘‘(5) the term ‘key recovery information’ means
information that would enable obtaining the key of
a user of encryption;
‘‘(6) the term ‘plaintext access capability’
means any method or mechanism which would pro-
vide information in readable form prior to its being
encrypted or after it has been decrypted;
‘‘(7) the term ‘United States person’ means—
‘‘(A) any United States citizen;
‘‘(B) any other person organized under the
laws of any State, the District of Columbia, or
any commonwealth, territory, or possession of
the United States; and
‘‘(C) any person organized under the laws
of any foreign country who is owned or con-
trolled by individuals or persons described in
subparagraphs (A) and (B).
‘‘§ 2802. Freedom to use encryption
‘‘Subject to section 2805, it shall be lawful for any
person within any State, and for any United States person
in a foreign country, to use any encryption, regardless of
the encryption algorithm selected, encryption key length
chosen, or implementation technique or medium used.
‘‘§ 2803. Freedom to sell encryption
‘‘Subject to section 2805, it shall be lawful for any
person within any State to sell in interstate commerce any
encryption, regardless of the encryption algorithm se-
lected, encryption key length chosen, or implementation
technique or medium used.
‘‘§ 2804. Prohibition on mandatory key escrow
‘‘(a) GENERAL PROHIBITION.—Neither the Federal
Government nor a State may require that, or condition
any approval on a requirement that, a key, access to a
key, key recovery information, or any other plaintext ac-
cess capability be—
‘‘(1) built into computer hardware or software
for any purpose;
‘‘(2) given to any other person, including a
Federal Government agency or an entity in the pri-
vate sector that may be certified or approved by the
Federal Government or a State to receive it; or
‘‘(3) retained by the owner or user of an
encryption key or any other person, other than for
encryption products for use by the Federal Govern-
ment or a State.
‘‘(b) PROHIBITION
ON LINKAGE
OF DIFFERENT
USES OF ENCRYPTION.—Neither the Federal Government
nor a State may—
‘‘(1) require the use of encryption products,
standards, or services used for confidentiality pur-
poses, as a condition of the use of such products,
standards, or services for authenticity or integrity
purposes; or
‘‘(2) require the use of encryption products,
standards, or services used for authenticity or integ-
rity purposes, as a condition of the use of such prod-
ucts, standards, or services for confidentiality pur-
poses.
‘‘(c) EXCEPTION FOR ACCESS FOR LAW ENFORCE-
MENT PURPOSES.—Subsection (a) shall not affect the au-
thority of any investigative or law enforcement officer, or
any member of the intelligence community as defined in
section 3 of the National Security Act of 1947 (50 U.S.C.
401a), acting under any law in effect on the effective date
of this chapter, to gain access to encrypted communica-
tions or information.
‘‘§ 2805. Unlawful use of encryption in furtherance of
a criminal act
‘‘(a) ENCRYPTION OF INCRIMINATING COMMUNICA-
TIONS OR INFORMATION UNLAWFUL.—Any person who,
in the commission of a felony under a criminal statute of
the United States, knowingly and willfully encrypts in-
criminating communications or information relating to
that felony with the intent to conceal such communications
or information for the purpose of avoiding detection by
law enforcement agencies or prosecution—
‘‘(1) in the case of a first offense under this
section, shall be imprisoned for not more than 5
years, or fined in the amount set forth in this title,
or both; and
‘‘(2) in the case of a second or subsequent of-
fense under this section, shall be imprisoned for not
more than 10 years, or fined in the amount set forth
in this title, or both.
‘‘(b) USE OF ENCRYPTION NOT A BASIS FOR PROB-
ABLE CAUSE.—The use of encryption by any person shall
not be the sole basis for establishing probable cause with
respect to a criminal offense or a search warrant.’’.
(b) CONFORMING AMENDMENT.—The table of chap-
ters for part I of title 18, United States Code, is amended
by inserting after the item relating to chapter 123 the fol-
lowing new item:
‘‘125. Encrypted wire and electronic information ................ 2801’’.
SEC. 3. EXPORTS OF ENCRYPTION.
(a) AMENDMENT TO EXPORT ADMINISTRATION ACT
OF 1979.—Section 17 of the Export Administration Act
of 1979 (50 U.S.C. App. 2416) is amended by adding at
the end thereof the following new subsection:
‘‘(g) CERTAIN CONSUMER PRODUCTS, COMPUTERS,
AND RELATED EQUIPMENT.—
‘‘(1) GENERAL RULE.—Subject to paragraphs
(2) and (3), the Secretary shall have exclusive au-
thority to control exports of all computer hardware,
software, computing devices, customer premises
equipment, communications network equipment, and
technology 
for 
information 
security 
(including
encryption), except that which is specifically de-
signed or modified for military use, including com-
mand, control, and intelligence applications.
‘‘(2) ITEMS NOT REQUIRING LICENSES.—After
a one-time, 15-day technical review by the Secretary,
no export license may be required, except pursuant
to the Trading with the enemy Act or the Inter-
national Emergency Economic Powers Act (but only
to the extent that the authority of such Act is not
exercised to extend controls imposed under this Act),
for the export or reexport of—
‘‘(A) any computer hardware or software
or computing device, including computer hard-
ware or software or computing devices with
encryption capabilities—
‘‘(i) that is generally available;
‘‘(ii) that is in the public domain for
which copyright or other protection is not
available under title 17, United States
Code, or that is available to the public be-
cause it is generally accessible to the inter-
ested public in any form; or
‘‘(iii) that is used in a commercial,
off-the-shelf, consumer product or any
component or subassembly designed for
use in such a consumer product available
within the United States or abroad
which—
‘‘(I) includes encryption capabili-
ties which are inaccessible to the end
user; and
‘‘(II) is not designed for military
or intelligence end use;
‘‘(B) any computing device solely because
it incorporates or employs in any form—
‘‘(i) computer hardware or software
(including computer hardware or software
with encryption capabilities) that is ex-
empted from any requirement for a license
under subparagraph (A); or
‘‘(ii) computer hardware or software
that is no more technically complex in its
encryption 
capabilities 
than 
computer
hardware or software that is exempted
from any requirement for a license under
subparagraph (A) but is not designed for
installation by the purchaser;
‘‘(C) any computer hardware or software
or computing device solely on the basis that it
incorporates or employs in any form interface
mechanisms for interaction with other computer
hardware or software or computing devices, in-
cluding computer hardware and software and
computing devices with encryption capabilities;
‘‘(D) any computing or telecommunication
device which incorporates or employs in any
form computer hardware or software encryption
capabilities which—
‘‘(i) are not directly available to the
end user; or
‘‘(ii) limit the encryption to be point-
to-point from the user to a central commu-
nications point or link and does not enable
end-to-end user encryption;
‘‘(E) technical assistance and technical
data used for the installation or maintenance of
computer hardware or software or computing
devices with encryption capabilities covered
under this subsection; or
‘‘(F) any encryption hardware or software
or computing device not used for confidentiality
purposes, such as authentication, integrity, elec-
tronic signatures, nonrepudiation, or copy pro-
tection.
‘‘(3) COMPUTER HARDWARE OR SOFTWARE OR
COMPUTING DEVICES WITH ENCRYPTION CAPABILI-
TIES.—After a one-time, 15-day technical review by
the Secretary, the Secretary shall authorize the ex-
port or reexport of computer hardware or software
or computing devices with encryption capabilities for
nonmilitary end uses in any country—
‘‘(A) to which exports of computer hard-
ware or software or computing devices of com-
the Export Administration Act of 1979, as added by
subsection (a) of this section.
(d) CONTINUATION
OF EXPORT ADMINISTRATION
ACT.—For purposes of carrying out the amendment made
by subsection (a), the Export Administration Act of 1979
shall be deemed to be in effect.
SEC. 4. EFFECT ON LAW ENFORCEMENT ACTIVITIES.
(a) COLLECTION OF INFORMATION BY ATTORNEY
GENERAL.—The Attorney General shall compile, and
maintain in classified form, data on the instances in which
encryption (as defined in section 2801 of title 18, United
States Code) has interfered with, impeded, or obstructed
the ability of the Department of Justice to enforce the
criminal laws of the United States.
(b) AVAILABILITY OF INFORMATION TO THE CON-
GRESS.—The information compiled under subsection (a),
including an unclassified summary thereof, shall be made
available, upon request, to any Member of Congress.
Æ