I
105TH CONGRESS
1ST SESSION
H. R. 695
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.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 12, 1997
Mr. GOODLATTE (for himself, Ms. LOFGREN, Mr. DELAY, Mr. BOEHNER, Mr.
COBLE, Mr. SENSENBRENNER, Mr. BONO, Mr. PEASE, Mr. CANNON, Mr.
CONYERS, Mr. BOUCHER, Mr. GEKAS, Mr. SMITH of Texas, Mr. INGLIS
of South Carolina, Mr. BRYANT, Mr. CHABOT, Mr. BARR of Georgia, Ms.
JACKSON-LEE of Texas, Ms. WATERS, Mr. ACKERMAN, Mr. BAKER, Mr.
BARTLETT
of Maryland, Mr. CAMPBELL, Mr. CHAMBLISS, Mr.
CUNNINGHAM, Mr. DAVIS of Virginia, Mr. DICKEY, Mr. DOOLITTLE, Mr.
EHLERS, Mr. ENGEL, Ms. ESHOO, Mr. EVERETT, Mr. EWING, Mr. FARR
of California, Mr. GEJDENSON, Mr. GILLMOR, Mr. GOODE, Ms. NORTON,
Mr. HORN, Ms. EDDIE BERNICE JOHNSON of Texas, Mr. SAM JOHNSON
of Texas, Mr. KOLBE, Mr. MCINTOSH, Mr. MCKEON, Mr. MANZULLO,
Mr. MATSUI, Mr. MICA, Mr. MINGE, Mr. MOAKLEY, Mr. NETHERCUTT,
Mr. PACKARD, Mr. SESSIONS, Mr. UPTON, Mr. WHITE, and Ms. WOOL-
SEY) introduced the following bill; which was referred to the Committee
on the Judiciary, and in addition to the Committee on Internaional Rela-
tions, for a period to be subsequently determined 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 121 the fol-
lowing new chapter:
‘‘CHAPTER 122—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’, ‘judge of competent ju-
risdiction’, and ‘electronic storage’ have the mean-
ings given those terms in section 2510 of this title;
‘‘(2) the terms ‘encrypt’ and ‘encryption’ refer
to the scrambling of wire or electronic information
using mathematical formulas or algorithms in order
to preserve the confidentiality, integrity, or authen-
ticity of, and prevent unauthorized recipients from
accessing or altering, such information;
‘‘(3) 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 or electronic information that has been
encrypted; and
‘‘(4) the term ‘United States person’ means—
‘‘(A) any United States citizen;
‘‘(B) any other person organized under the
laws of any State, the District of Columbia, or
any commonwealth, territory, or possession of
the United States; and
‘‘(C) any person organized under the laws
of any foreign country who is owned or 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) PROHIBITION.—No person in lawful possession
of a key to encrypted information may be required by Fed-
eral or State law to relinquish to another person control
of that key.
‘‘(b) EXCEPTION FOR ACCESS FOR LAW ENFORCE-
MENT PURPOSES.—Subsection (a) shall not affect the au-
thority of any investigative or law enforcement officer, act-
ing under any law in effect on the effective date of this
chapter, to gain access to encrypted information.
‘‘§ 2805. Unlawful use of encryption in furtherance of
a criminal act
‘‘Any person who willfully uses encryption in further-
ance of the commission of a criminal offense for which
the person may be prosecuted in a court of competent ju-
risdiction—
‘‘(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) 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 33 the fol-
lowing new item:
‘‘122. 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) COMPUTERS AND RELATED EQUIPMENT.—
‘‘(1) GENERAL RULE.—Subject to paragraphs
(2), (3), and (4), the Secretary shall have exclusive
authority to control exports of all computer hard-
ware, software, and technology for information secu-
rity (including encryption), except that which is spe-
cifically designed or modified for military use, in-
cluding command, control, and intelligence applica-
tions.
‘‘(2) ITEMS
NOT
REQUIRING
LICENSES.—No
validated 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 software, including software with
encryption capabilities—
‘‘(i) that is generally available, as is,
and is designed for installation by the pur-
chaser; or
‘‘(ii) that is in the public domain for
which copyright or other protection is not
available under title 17, United States
Code, or that is available to the public be-
cause it is generally accessible to the inter-
ested public in any form; or
‘‘(B) any computing device solely because
it incorporates or employs in any form software
(including software with encryption capabilities)
exempted from any requirement for a validated
license under subparagraph (A).
‘‘(3) SOFTWARE WITH ENCRYPTION CAPABILI-
TIES.—The Secretary shall authorize the export or
reexport of software with encryption capabilities for
nonmilitary end uses in any country to which ex-
ports of software of similar capability are permitted
for use by financial institutions not controlled in fact
by United States persons, unless there is substantial
evidence that such software will be—
‘‘(A) diverted to a military end use or an
end use supporting international terrorism;
‘‘(B) modified for military or terrorist end
use; or
‘‘(C) reexported without any authorization
by the United States that may be required
under this Act.
‘‘(4) HARDWARE WITH ENCRYPTION CAPABILI-
TIES.—The Secretary shall authorize the export or
reexport of computer hardware with encryption ca-
pabilities if the Secretary determines that a product
offering comparable security is commercially avail-
able outside the United States from a foreign sup-
plier, without effective restrictions.
‘‘(5) DEFINITIONS.—As used in this sub-
section—
‘‘(A) the term ‘encryption’ means the
scrambling of wire or electronic information
using mathematical formulas or algorithms in
order to preserve the confidentiality, integrity,
or authenticity of, and prevent unauthorized re-
cipients from accessing or altering, such infor-
mation;
‘‘(B) the term ‘generally available’ means,
in the case of software (including software with
encryption capabilities), software that is offered
for sale, license, or transfer to any person with-
out restriction, whether or not for consider-
ation, including, but not limited to, over-the-
counter retail sales, mail order transactions,
phone order transactions, electronic distribu-
tion, or sale on approval;
‘‘(C) the term ‘as is’ means, in the case of
software (including software with encryption ca-
pabilities), a software program that is not de-
signed, developed, or tailored by the software
publisher for specific purchasers, except that
such purchasers may supply certain installation
parameters needed by the software program to
function properly with the purchaser’s system
and may customize the software program by
choosing among options contained in the soft-
ware program;
‘‘(D) the term ‘is designed for installation
by the purchaser’ means, in the case of soft-
ware (including software with encryption capa-
bilities) that—
‘‘(i) the software publisher intends for
the purchaser (including any licensee or
transferee), who may not be the actual
program user, to install the software pro-
gram on a computing device and has sup-
plied the necessary instructions to do so,
except that the publisher may also provide
telephone help line services for software in-
stallation, electronic transmission, or basic
operations; and
‘‘(ii) the software program is designed
for installation by the purchaser without
further substantial support by the supplier;
‘‘(E) the term ‘computing device’ means a
device which incorporates one or more micro-
processor-based central processing units that
can accept, store, process, or provide output of
data; and
‘‘(F) the term ‘computer hardware’, when
used in conjunction with information security,
includes, but is not limited to, computer sys-
tems, equipment, application-specific assem-
blies, modules, and integrated circuits.’’.
(b) CONTINUATION
OF EXPORT ADMINISTRATION
ACT.—For purposes of carrying out the amendment made
by subsection (a), the Export Administration Act of 1979
shall be deemed to be in effect.
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