July 18, 2000
Administration Retools Rules on Encryption Device Exports
By DAVID STOUT
ASHINGTON, July 17 -- The White House announced steps today that it said would aid computer-related businesses while maintaining cyber-security. It also said it would try to update rules on official eavesdropping, so that electronic communications would enjoy the same protections as telephone calls.
The White House chief of staff, John Podesta, said that American companies will no longer need licenses to sell encryption products to any end user in the 15 countries in the European Union plus these eight nations: Australia, Norway, the Czech Republic, Hungary, Poland, Japan, New Zealand and Switzerland.
The change means that American exporters will no longer have to wait for technical reviews or 30-day delays to ship their products, as they have in the past. While good news for technology companies, today's announcement was not a total surprise.
"Our administration has already moved to liberalize export controls on encryption, allowing more companies to export the technology to more end users," Mr. Podesta reminded listeners at the National Press Club. What's more, he asserted, "We've done so while maintaining a framework necessary to protect our national security."
National security and law enforcement officials have generally been leery of exporting data- and voice-scrambling products, for fear that they would be used by terrorists and governments friendly with terrorists to send coded messages. But people in the technology industries have complained that government restrictions have hobbled American efforts to compete with foreign computer-related businesses and that, in any event, government curbs are unrealistic in a field in which what is "secret" this month is obsolete next month.
The Administration lifted some export restrictions in January, and so Mr. Podesta's announcement today was not a surprise. Nor was another theme that he sounded today, that internet security is generally more the responsibility of private business than it is of government. The Clinton Administration has said that consistently.
As for privacy protection, Mr. Podesta said, "It's time to update and harmonize our existing laws to give all forms of technology the same legislative protections as our telephone conversations."
"The same communication, if sent different ways, through a phone call or a dial-up modem, is subject to different and inconsistent privacy standards," Mr. Podesta noted.
Congressional cooperation would be needed for a comprehensive law, or set of laws, to protect internet communications while giving law enforcement people the authority to intercept e-mail occasionally. Various proposals have been talked about, and it is by no means clear that any big legislative steps will be taken soon.
In this area, too, technology has outrun the law. Mr. Podesta reminded the audience that a 1928 Supreme Court decision involving wiretaps not authorized by warrants held that telephone conversations were not protected under the Fourth Amendment in the way that, say, private letters were.
Justice Louis Brandeis issued a fiery dissent in that case, and history was on his side. Some 40 years later, the Court repudiated the 1928 decision and held that phone conversations were protected by the Fourth Amendment.
The law and lawmakers simply have not caught up with the needs of cyber-communications, Mr. Podesta said.
ENCRYPTION
