- The Washington Times - Monday, January 17, 2000

Businesses and individuals who rely on computers and computer networks to conduct their business operations and personal affairs are demanding strong encryption capabilities to protect their digital information from hackers, electronic thieves and business competitors.
Encryption is used to protect the integrity and privacy of phone calls, computer files, e-mail messages, electronic medical and tax records, business trade secrets and intellectual property, credit information, and virtually any other type of electronic information and communication.
Even when we may not realize it, encrypting information has become fundamentally indispensable to our daily lives. Just as phone lines, overnight delivery services, and the Internet changed our lives, encryption is now a necessity and a market imperative.
Encryption is being used to protect new DVD-formatted movies from being copied and to keep our conversations over wireless cellular telephones confidential. It protects Fortune 500 companies engaging in multinational business negotiations and those of us who did some last-minute Christmas shopping online from credit card "e-thieves." For quarterbacks like Dan Marino trying to call plays in hostile and raucous domed stadiums in this month's National Football League playoff games, encryption is even used by NFL coaches sending in plays via wireless receivers in their quarterbacks' helmets.
Members of Congress on both sides of the aisle have recognized these developments and responded with increasing support for legislation to ease export controls on encryption and to assist our law enforcement and national security communities to break encrypted communications by criminals and terrorists. Bills seeking these objectives have been moving closer and closer to passage each Congress.
Nevertheless, until recently, the Clinton administration has continued the outdated policies of the pre-Internet, pre-wireless era by trying to stifle the inexorable consumer and market forces demanding strong encryption by continuing prior administrations' stringent export controls on this technology. Stopping American firms from exporting strong encryption as a means of stopping people both here and abroad from using strong encryption was a wrongheaded policy. It drove encryption expertise and manufacturing jobs overseas and has left our computer data and communications more vulnerable to spies, snoops and thieves.
To be sure, the increasingly widespread availability and use of strong encryption poses significant challenges to the eavesdropping capabilities of our law enforcement and national security agencies. No one wants to make it any easier for criminals and terrorists to escape detection by the police. But, as many of us in Congress have argued, the solution cannot be to stop technological progress, at the expense of Internet privacy and the marketplace.
On the contrary, encryption should be valued as a crime-fighting tool. Promoting the use of strong encryption can aid law enforcement and protect national security by limiting the threat of industrial espionage and foreign spying, and by reducing the vulnerability of electronic information to online crooks and to breaches of privacy. Encrypted files are simply gibberish in the hands of unauthorized people without the code to decrypt them. We should think of encryption as a shield against these threats.
Furthermore, adopting an encryption policy that protects the global competitiveness of our high-tech industries will serve our national security interests better in the long run than driving encryption expertise and markets overseas.
Due to currently restrictive U.S. export controls on strong encryption, some of our high-tech firms have opted to move manufacturing operations offshore, where they can incorporate strong foreign encryption into sophisticated computer hardware for both American and foreign customers. Other companies have turned to foreign cryptographers to implement strong encryption. These contracts with foreign firms to market non-exportable encryption software have come about not because the expertise was unavailable in the United States, but because of our export controls.
Restrictive export controls on encryption products and technology long ago outlived their usefulness. What our law enforcement agencies need is assistance in keeping up with the information age and clear guidelines on how to obtain help in deciphering the coded messages of criminals.
What our national security agencies need is an opportunity for a technical review of encryption products being exported and to keep encryption expertise here in the United States.
What American companies and American workers need is the ability to compete unhindered by outdated export restrictions on encryption to keep high-tech jobs here.
Finally, the combination of bipartisan congressional pressure and market realities has moved the administration to act. The Commerce Department's new policy and regulations, developed over the past several months and published last Friday, indicate it is finally on the right track.
Lifting export restrictions on strong American encryption products (except to terrorist countries and foreign governments), giving the government a one-time technical review, and asking Congress for funding to increase the FBI's expertise in dealing with encryption and for legal authority to seek decryption assistance are not new ideas. They have all appeared in encryption legislation we and others in Congress have introduced and supported over the years. But they are all new parts of the administration's encryption policy.
The administration's new thinking on encryption does not let Congress off the hook. Congress has a critical role to play to consider encryption legislation as a way to ensure that neither this nor any future administration reverses these important advances. Legislation remains necessary to provide a legal framework and policy guidance for the implementation of a constructive export policy, the enhancement of privacy protections for Americans, and authorization for law enforcement's legitimate access to decryption assistance.
Our bipartisan efforts in Congress to shape the administration's policy have now yielded positive results, and this issue remains too important for Congress to drop the ball now that the administration has joined the effort.

Patrick Leahy, Vermont Democrat, is ranking member on the Senate Judiciary Committee and Don Nickles, Oklahoma Republican, is the Senate assistant majority leader. Both have previously sponsored and supported legislation to relax export controls on encryption.

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