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Date: Sun, 21 Nov 1993 18:18:21 +0000
From: Dave Banisar <[email protected]>
To: [email protected]
Subject: HR 3627 Encryption Exports Removed
Maria Cantwell
1st District, Washington
1520 Longworth Building
Washington, DC 20515
202-225-6311
Congress of the United States
House of Representatives
Washington, DC 20515-4701
For Immediate Release For More Information
November 23, 1993 Larry West (202) 225-6311
Cantwell Introduces "Encryption" bill to Expand Export Markets for US
Computer and Software Companies
US Rep. Maria Cantwell (D-WA) has introduced legislation to amend the
Export Administration Act to allow US computer and software
manufacturers to compete in an international market that could mean as
much as $6 billion to $9 billion a year to American high-tech
industries. Cantwell's bill would liberalize export controls on software
that features encryption capabilities, which protect computer data
against unauthorized disclosure, theft or alteration.
As communications systems link more and more computers and telephones
around the world, Cantwell said, businesses and indviduals are becoming
more concerned about protecting the privacy of their electronic files,
messages and transactions. She said the worldwide demand for
cryptographic software, and computer systems that employ such software,
is growing rapidly and American companies must be allowed to meet that
demand. According to Cantwell, this legislation is needed to ensure that
American companies do not lose critical international markets to foreign
competitors, who operate with few export restrictions. Currently, more
than 200 software and hardware products for text, file and data
encryption are available from 20 foreign countries.
"The Export Administration Act has erected a wall between American
high-tech companies and their international customers -- it's time to
lower the wall," Cantwell said. "Computer and software technology are
among the most competitive fields in the world, and American companies
are the clear leaders. To maintain that lead, American companies must be
able to respond to worldwide consumer demand."
Robert Holleyman, president of the Business Software Alliance, an
association of America's nine leading software companies, applauded
Cantwell for introducing the leigslation and said the bill would "assist
US software companies and maintaining their competitive edge in
international markets."
Dr. Nathan Myhrvold, senior vice president for Advance Technology at
Microsoft Corporation in Redmond, Washington, also praised Cantwell for
her leadership on this issue.
"The ability to include encryption features in software we sell
worldwide is important to our remaining competititve in foreign
markets," Myhrvold said. " We commend Rep. Cantwell for recognizing the
importance of this issue to the American software industry."
CANTWELL ON EXPORT CONTROLS/ ADD ONE
Cantwell said current export controls that prohibit the export of
American software programs that offer good encryption capabilities only
make it harder for American companies to compete internationally. She
said the regulations ignore the realities of today's post-Cold War
global economy and the needs of one of this country's most innovative
and successful industries. American software companies currently
command a 75 percent worldwide market share, and many of those companies
earn more than 50 percent of their annual revenues from exports, but
Cantwell said that could change quickly.
"The United States' export control system is broken and needs to be
fixed," Cantwell said. "It was designed as a tool of the Cold War, to
help America fight against enemies that no longer exist. If we continue
to prevent American companies from meeting the worldwide demand for
cryptographic software, America gains nothing -- but those companies
stand to lose $6 billion and $9 billion a year."
Paul Brainerd, CEO of Aldus in Seattle, said, "Rep. Cantwell's bill
would liberalize outdated export controls, which are threatening the
continued success of America's software companies in world markets. In
order to remain competitive worldwide, American companies must be able
to offer features -- like information security -- demanded by our
customers and available from foreign companies."
Cantwell said her legislation would not interfere with the
government's ability to control exports to nations with terrorist
tendencies (such as Iran, Libya and Syria) or other embargoed countries
(such as Cuba and North Korea). On the other hand, she said, current
export controls on American software do not prevent anyone from
obtaining cryptographic software.
"Much of this is ordinary shrink-wrapped software," Cantwell said,
"the kind millions of people buy every day for their home and business
computers at regular retail outlets. International consumers who cannot
purchase American computer systems and software programs with encryption
features don't do without, they just buy those products elsewhere. They
are concerned with protecting their privacy and keeping their businesses
secure."
Cantwell said she is determined to bring the issue out from behind
closed doors and into the light of public debate before the House
Subcommittee on Economic Policy, Trade and Environment marks up the
Export Administration Act early next year. She said she hopes her bill
will encourage the Administration to act quickly to revise export
controls on software -- perhaps before Congress reconvenes in late
January.
"The Administration is reviewing this issue, and I think they are
interested in making the changes that will allow American companies to
remain competitive," Cantwell said. "I would like nothing better than
to come back to Congress after the recess and discover that the problem
had been solved."
###
AMERICAN COMPUTER COMPANIES MUST BE ALLOWED TO
EXPORT SOFTWARE WITH ENCRYPTION CAPABILITIES
_Introduction and Summary_
America's computer software and hardware companies, including such
well-known companies as Apple, DEC, Hewlett-Packard, IBM, Lotus,
Microsoft, Novell and Wordperfect, have been among the country's most
internationally competitive firms earning more than one-half of their
revenues from exports. Unfortunately, this vital American industry is
directly threatened by unilateral U.S. Government export controls which
prevent those companies from meeting worldwide user demand for software
that includes encryption capabilities to protect computer data against
unauthorized disclosure, theft or alteration. Legislative action is
needed to ensure that American companies do not lose critical
international markets to foreign software companies that operate without
significant export restrictions.
_The Problem_
With ready access to powerful, interconnected, computers, business and
home users increasingly are relying on electronic information storage
and transmissions to conduct their affairs. At the same time, computer
users worldwide are demanding that computer software offer encryption
capabilities to ensure that their data is secure and its integrity is
maintained.
Unfortunately, current unilateral U.S. "munitions" export controls
administered by the National Security Agency and the State Department
effectively prohibit the export of American software programs offering
good encryption capabilities.
Yet these unilateral U.S. controls are _not_ effective in restricting
the availability of encryption abroad. More than 200 generally
available, mass-market foreign commercial programs and products, as well
as many programs available from the Internet, all offer good encryption.
In addition, generally available software with encryption capabilities
is sold within the U.S. at thousands of retail outlets, by mail and over
the phone. These programs may be transferred abroad in minutes by
anyone using a public telephone line and a computer modem.
The only result of continued U.S. export controls is to threaten the
continued preeminence of America's computer software and hardware
companies in world markets. American software companies stand to lose
between $6 and $9 billion in annual revenues from sales of generally
available software. In addition, American hardware companies are losing
hundreds of millions of dollars in computer system sales every year,
because sales increasingly are dependent on the ability of a U.S. firm
to offer encryption as a feature of an integrated customer solution
involving hardware, software and services.
_The Solution_
Legislation introduced by U.S. Rep. Maria Cantwell would ensure that
exports of software with encryption capabilities would be controlled by
the Secretary of Commerce as a commercial item and would be exportable.
This legislation is strongly supported by the Business Software Alliance
and the Industry Coalition on Technology Transfer.
-----------------------------------------------------------------------
SECTION-BY-SECTION ANALYSIS OF CANTWELL BILL
EXPORT CONTROL LIBERALIZATION FOR
INFORMATION ECURITY PROGRAMS AND PRODUCTS
_Section 1_
Section 1 amends the Export Administration Act by adding a new
subsection that specifically addresses exports of computer hardware,
software and technology for information security including encryption.
The new subsection has three basic provisions:
1) It gives the Secretary of Commerce exclusive authority over the
export of such programs and products except those which are specifically
designed for military use, including command, control and intelligence
applications or for deciphering encrypted information.
2) The Government is generally prohibited from requiring a validated
export license for the export of generally available software (e.g. mass
market commercial or public domain software) or computer hardware simply
because it incorporates such software.
Nevertheless, the Secretary will be able to continue controls on
countries of terrorists (like Lybia, Syria and Iran) or other embargoed
countries (like Cuba and North Korea) pursuant to the Trading With The
Enemy Act os the International Emergency Economic Powers Act (except for
instances where IEEPA is employed to extend EAA-based controls when the
EAA is not in force).
3) The Secretary is required to grant validated licenses for exports of
sotware to commercial users in any country to which exports of such
software has been approved for use by foreign financial institutions.
Importantly, the Secretary is not required to grant such export
approvals if there is substantial evidence that the software will be
diverted or modified for military or terrorists' end-use or re-exported
without requisite authorization.
_Section 2_
Section 2 provides definitions necessary for the proper implementation
of the substantive provisions. For example, generally available
software is offered for sale or licensed to the public without
restriction and available through standard commercial channels of
distribution; sold as is without further customization; and designed to
be installed by the purchaser without additional assistance from the
publisher. Computer hardware and computing devices are also defined.
---------------------------------------------------------------------
103D CONGRESS H.R. 3627
1ST SESSION
---------------------------------------
IN THE HOUSE OF REPRESENTATIVES
MS. CANTWELL (for herself and ___) introduced the following bill which
was referred to the Committee on __________.
---------------------------------------
A BILL
To amend the Export Administration Act of 1979 with
respect to the control of computers and related equipment.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress Assembled,
3 SECTION 1. GENERALLY AVAILABLE SOFTWARE
4 Section 17 of the Export Administration Act of 1979
5 (50 U.S.C. App. 2416) is amended by adding at the end
6 thereof the following new subsection:
7 ``(g) COMPUTERS AND RELATED EQUIPMENT.---
8 ``(1) GENERAL RULE.---Subject to paragraphs
9 (2) and (3), the Secretary shall have exclusive au-
2
1 thority to control exports of all computer hardware,
2 software and technology for information security
3 (including encryption), except that which is specifi-
4 cally designed or modified for military use, including
5 command, control and intelligence applications.
6 ``(2) ITEMS NOT REQUIRING LICENSES.---No
7 validated license may be required, except pursuant
8 to the Trading With The Enemy Act or the Inter-
9 national Emergency Economic Powers Act (but only
10 to the extent that the authority of such act is not
11 exercised to extend controls imposed under this act),
12 for the export or reexport of---
13 ``(A) any software, including software with
14 encryption capabilities, that is---
15 ``(i) generally available, as is, and is
16 designed for installation by the purchaser;
17 or
18 ``(ii) in the public domain or publicly
19 available because it is generally accessible
20 to the interested public in any form; or
21 ``(B) any computing device soley because
22 it incorporates or employs in any form software
23 (including software with encryption capabilities)
24 exempted from any requirement for a validated
25 license under subparagraph (A).
3
1 ``(3) SOFTWARE WITH ENCRYPTION CAPABILI-
2 TIES.---The Secretary shall authorize the export or
3 reexport of software with encryption capabilities for
4 nonmilitary end-uses in any country to which ex-
5 ports of software of similar capability are permitted
6 for use by financial institutions not controlled in fact
7 by United States persons, unless there is substantial
8 evidence that such software will be---
9 ``(A) diverted to a military end-use or an
10 end-use supporting international terrorism;
11 ``(B) modified for military or terrorist end-
12 use; or
13 ``(C) reexported without requisite United
14 States authorization.
15 ``(4) DEFINITIONS.---As used in this
16 subsection---
17 ``(A) the term `generally available' means,
18 in the case of software (including software with
19 encryption capabilities), software that is offered
20 for sale, license, or transfer to any person with-
21 out restriction through any commercial means,
22 including, but not limited to, over-the-counter
23 retail sales, mail order transactions, phone
24 order transactions, electronic distribution, or
25 sale on approval;
4
1 ``(B) the term `as is' means, in the case of
2 software (including software with encryption ca-
3 pabilities), a software program that is not de-
4 signed, developed, or tailored by the software
5 company for specific purchasers, except that
6 such purchasers may supply certain installation
7 parameters needed by the software program to
8 function properly with the purchaser's system
9 and may customize the software program by
10 choosing among options contained in the soft-
11 ware program;
12 ``(C) the term `is designed for installation
13 by the purchaser' means, in the case of soft-
14 ware (including software with encryption capa-
15 bilities)---
16 ``(i) the software company intends for
17 the purchaser (including any licensee or
18 transferee), who may not be the actual
19 program user, to install the software pro-
20 gram on a computing device and has sup-
21 plied the necessary instructions to do so,
22 except that the company may also provide
23 telephone help line services for software in-
24 stallation, electronic transmission, or basic
25 operations; and---
5
1 ``(ii) that the software program is de-
2 signed for installation by the purchaser
3 without further substantial support by the
4 supplier;
5 ``(D) the term `computing device' means a
6 device which incorporates one or more
7 microprocessor-based central processing units
8 that can accept, store, process or provide out-
9 put of data; and
10 ``(E) the term `computer hardware', when
11 used in conjunction with information security,
12 includes, but is not limited to, computer sys-
13 tems, equipment, application-specific assem-
14 blies, modules and integrated circuits.''