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April 2, 1999

Senator Ends Opposition to Encryption Software Exports
By JERI CLAUSING Bio
 In a surprising about-face, Senator John McCain said this week that he was abandoning his support for the Clinton Administration's policy requiring that law enforcement agencies be given keys enabling them to unlock scrambled data.

The switch by Senator McCain, the Arizona Republican who heads the Commerce Committee, is almost certain to stand the Government's encryption policy on its head, killing both the Administration's demands for so-called key-recovery systems for police agencies and its restrictions on what kinds of encryption products United States software developers can export.


The Encryption Debate:
Is It About Privacy or Security?

Senator McCain announced this week that he would join Senators Conrad Burns, Patrick J. Leahy and Ron Wyden in sponsoring a bill that would replace the Administration's current prohibitions on the export of strong encryption with a review process that would give the software and computer industries a strong voice in what technologies could be shipped overseas.

Key-recovery systems are being pushed by the Federal Bureau of Investigation, the National Security Agency and other Federal law enforcement agencies, which argue that advances in encryption technology will make it increasingly difficult for police and intelligence agents to monitor the computer communications of suspected terrorists and other criminals.

Right now, that concern is focused mainly on e-mail and other digital documents sent over the Internet. But increasingly, telecommunications of all kinds, including simple telephone calls, will use Internet technologies, making traditional wiretaps all but impossible without keys to unscramble conversations.

The United States software industry has argued that the restrictions put American companies at a disadvantage for no good reason, since any criminal who wanted to scramble data could simply use an advanced encryption product produced in a foreign country.

Privacy advocates oppose the Government's policy, arguing that only strong encryption can guarantee personal privacy in cyberspace.

The Administration declined to comment yesterday on the proposed bill, which has not yet been filed, until a copy was available.

The about-face for Senator McCain, who is widely believed to be testing the waters for a Presidential bid, is significant in that it brings together Senate leaders who last session sponsored opposing bills on the subject.

Senators Burns, a Montana Republican, Leahy, a Vermont Democrat, and Wyden, an Oregon Democrat, have staunchly opposed key recovery programs. Senator McCain, on the other hand, last session sponsored a bill with Senator Bob Kerrey, a Nebraska Democrat, that would have required key recovery on all Federally financed computer systems.

Senator McCain's office said the legislation would be filed when Congress returns on April 11 from a two-week spring recess. David Crane, an aide to Senator McCain on the Commerce Committee, said the Senator hoped to move the bill to the floor quickly after that.
Bad news for the F.B.I. and C.I.A.; good news for privacy group.

While the McCain proposal does not go as far as a House bill that would lift all export controls on encryption, the computer industry and privacy advocates cautiously applauded it as having the potential to break a years-long deadlock with the White House over encryption policy.

"I think on balance, it is a very encouraging development," said David Sobel of the Electronic Privacy Information Center, which has staunchly opposed key-recovery programs as an intrusion on the privacy of computer users.

Sobel said he was pleasantly surprised by Senator McCain's shift in position. "The only thing I can speculate on is that his Presidential ambition has made him more sensitive to the business concerns," he said.

Others said they saw the shift as simply a broader recognition in Congress of the need for change.

Robert Holleyman, president of the Business Software Alliance, said it was "becoming increasingly clear that the number of policy makers who support modernizing export control policy for encryption products is growing, not shrinking."

The strength of encryption software is measured in the number of bits -- ones or zeroes -- that make up the "key" used to scramble the data. As the keys become longer, breaking the encryption becomes exponentially more difficult.

Currently, the Commerce Department's Bureau of Export Administration, which oversees the Administration's encryption policies, requires that makers of data-scrambling products stronger than 56 bits show that they are developing key recovery systems that would give law enforcement agencies easy back door access to scrambled data.

Although in the last year the Administration has eased those requirements for some industries, primarily financial services, many common software products cannot be exported.

Crane said the proposed legislation would replace the Administration's current licensing process with a review board tilted in industry's favor and would lift all restrictions on exporting encryption under 64 bits to friendly nations. The review board could grant exceptions for nonmilitary products stronger than 64 bits if they were "generally and publicly available," Crane said.

The President would ultimately have the authority to override any exemptions granted by the board, citing national security.

Unlike the House bill, there is no provision that would make it illegal to use encryption while committing a crime.

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Jeri Clausing at jeri@nytimes.com welcomes your comments and suggestions.

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