21 October 1998 Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html Excerpted from Senate debate on S.2539, International Crime and Anti-Terrorism Amendments of 1998: http://jya.com/s2539-amend.txt ----------------------------------------------------------------------- [Congressional Record: October 15, 1998 (Senate)] [Page S12612-S12620] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr15oc98-211] INTERNATIONAL CRIME AND ANTI-TERRORISM AMENDMENTS OF 1998 [Snip] Mr. LEAHY. [snip] Finally, I would like to address the encryption amendment that Senator Kyl offered and then withdrew during Committee consideration of this bill. This amendment would have criminalized the use of encryption in the commission of any federal felony. Unlike analogous provisions incorporated into pending encryption bills, the Kyl amendment was not limited in any way to the criminal use of encryption ``for the purpose of avoiding detection by law enforcement agencies or prosecution'', as reflected in the SAFE bill, H.R. 695, or ``with the intent to conceal that communication or information for the purpose of avoiding detection by a law enforcement agency or prosecutor,'' as reflected in the Ashcroft-Leahy E-PRIVACY bill, S. 2067. The scope of the offered Kyl amendment raised concerns about inviting government over-reaching. There is no requirement in the amendment, for example, that a conviction for use of encryption be predicated on a conviction of any underlying criminal offense. Moreover, were this amendment to become law, it could chill even the routine use of encryption in the course of every day business, such as communications between clients and lawyers or accountants, since the mere use of encryption could result in exposure to substantial criminal penalties of up to five years in prison. In addition, as I noted during the committee's discussion of the amendment, the definition of encryption in the offered Kyl amendment varied greatly from definitions used in pending legislation, including bills I have introduced and cosponsored, that have been thoroughly vetted with encryption and other technical exports. The Kyl amendment definition of ``encryption'' is drafted so broadly that it could apply to any transformation of analog to digital communications, without any use of mathematical algorithms commonly associated with encryption. We can and should do better if we are going to add a definition of this highly technical operation to the criminal code for the first time. I appreciate the chairman's efforts, and Senator Kyl's willingness, to address this issue in a considered fashion in the next Congress. As a former prosecutor, I have long been concerned about helping law enforcement have the tools necessary to deal with changing technologies, and at the same time provide procedural safeguards to protect privacy and other important constitutional rights of American citizens. That is why I sponsored, among other laws, the Electronic Communications Privacy Act in 1986 and the Communications Assistance for Law Enforcement Act in 1994, and worked with Senator Kyl and Chairman Hatch on passage of the National Information Infrastructure Protection Act in 1996 and, most recently, on identity theft legislation. When it comes to encryption, I fully appreciate the challenge such technology poses for law enforcement officers, who may increasingly find that the communications they capture during court authorized electronic surveillance is unintelligible because it is scrambled with encryption technology. In the last Congress, I introduced legislation, S. 1587, that contained a provision to criminalize the use of encryption to obstruct justice. Again, in this Congress, I have introduced a bill with such a provision, S. 376, and cosponsored with Senator Ashcroft yet another bill, S. 2067, that contains a criminal penalty for the willful use of encryption to conceal incriminating communications or information. Thus, taking the step of creating a new crime to address the criminal use of encryption is not a new idea to me. I remain frustrated that sound encryption legislation was not enacted this year, particularly since this technology is such an effective crime prevention tool. The longer we go without addressing encryption policy in a comprehensive fashion, the longer our computer information, networks and critical infrastructures remain vulnerable to cyber- attacks and theft. I encourage the FBI to continue working with industry to try to define some cooperative efforts to facilitate court ordered access to encrypted files and communications. But the job of Congress is to ensure that procedural safeguards are in place to guide such cooperation in ways that comport with our Constitution. I look forward to working with Senator Kyl, as we have successfully in the past on technology issues, and with other members, on comprehensive encryption legislation that addresses both the criminal use of encryption as well as policy changes to promote the widespread use of encryption as a shield against cyber-crime. criminalizing the use of encryption Mr. KYL. Mr. President, I am concerned over our inability to advance good policy on encryption this Congress. The Senate has held many hearings on encryption, and there have been a number of bills introduced, with nothing concrete to show for it. What these bills have in common is an approach that would fold all aspects of national policy on encryption into one legislative vehicle. That has been a recipe for gridlock. Meanwhile, terrorist and criminals and drug lords are increasingly using encryption to hide their acts from law enforcement investigators. This already serious problem will continue to worsen unless we find some way to level the playing field. In committee, I offered an amendment I believed to be noncontroversial. It would criminalize the use of encryption in furtherance of a crime. It echoes language that appeared in each and every encryption bill introduced this Congress. And yet, it was rejected by some Members because it did not address other aspects of encryption policy. We need to get beyond this all-or-nothing approach. Mr. HATCH. I am generally supportive of the concept embodied in the amendment offered by the Senator from Arizona which was discussed in committee, and I regret that it was not possible to work out acceptable language to include in this bill. Next Congress, I believe the Judiciary Committee should take up the challenge of reviewing this Nation's encryption policies and ensure that law enforcement agencies can continue to fulfill their critical responsibilities. This review will include a hearing to consider the FBI's proposed Technical Support Center, in order to evaluate its potential for solving some of law enforcement's access concerns. I pledge my support to help enact legislation to address the use of encryption in furtherance of a felony. [Snip]