HR 695 IH
H. R. 695
IN THE HOUSE OF REPRESENTATIVES
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. WOOLSEY) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Internaional Relations, 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
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the `Security and Freedom Through Encryption (SAFE) Act'.
(a) IN GENERAL- Part I of title 18, United States Code, is amended by inserting after chapter 121 the following new chapter:
`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.
`As used in this chapter--
`(1) the terms `person', `State', `wire communication', `electronic communication', `investigative or law enforcement officer', `judge of competent jurisdiction', and `electronic storage' have the meanings 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 authenticity of, and prevent unauthorized recipients from accessing or altering, such information;
`(3) the term `key' means the variable information used in a mathematical formula, code, or algorithm, 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 controlled by individuals or persons described in subparagraphs (A) and (B).
`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.
`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 selected, encryption key length chosen, or implementation technique or medium used.
`(a) PROHIBITION- No person in lawful possession of a key to encrypted information may be required by Federal or State law to relinquish to another person control of that key.
`(b) EXCEPTION FOR ACCESS FOR LAW ENFORCEMENT PURPOSES- Subsection (a) shall not affect the authority of any investigative or law enforcement officer, acting under any law in effect on the effective date of this chapter, to gain access to encrypted information.
`Any person who willfully uses encryption in furtherance of the commission of a criminal offense for which the person may be prosecuted in a court of competent jurisdiction--
`(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 offense 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 chapters for part I of title 18, United States Code, is amended by inserting after the item relating to chapter 33 the following new item:
(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 hardware, software, and technology for information security (including encryption), except that which is specifically designed or modified for military use, including command, control, and intelligence applications.
`(2) ITEMS NOT REQUIRING LICENSES- No validated license may be required, except pursuant to the Trading With The Enemy Act or the International 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 purchaser; 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 because it is generally accessible to the interested 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 CAPABILITIES- The Secretary shall authorize the export or reexport of software with encryption capabilities for nonmilitary end uses in any country to which exports 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 CAPABILITIES- The Secretary shall authorize the export or reexport of computer hardware with encryption capabilities if the Secretary determines that a product offering comparable security is commercially available outside the United States from a foreign supplier, without effective restrictions.
`(5) DEFINITIONS- As used in this subsection--
`(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 recipients from accessing or altering, such information;
`(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 without restriction, whether or not for consideration, including, but not limited to, over-the-counter retail sales, mail order transactions, phone order transactions, electronic distribution, or sale on approval;
`(C) the term `as is' means, in the case of software (including software with encryption capabilities), a software program that is not designed, 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 software program;
`(D) the term `is designed for installation by the purchaser' means, in the case of software (including software with encryption capabilities) 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 program on a computing device and has supplied the necessary instructions to do so, except that the publisher may also provide telephone help line services for software installation, 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 microprocessor-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 systems, equipment, application-specific assemblies, 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.