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Crypto-victory in Commerce; Oxley talks about nuking Congress

So I'm sitting here in the lobbyist warren of the Capitol
Grille on Pennsylvania Avenue getting sloshed on expensive
beer -- and sick on the clouds of cigar smoke from industry
representatives flush from their victory in the House
Commerce committee earlier this evening.

And they do have cause to celebrate. A week ago, the
outlook in Congress was dismal. The House Intelligence
committee had approved (during a closed hearing) the
first-ever domestic restrictions on what technologies
Americans can use to protect their privacy. The House
Commerce committee seemed certain to follow. Rep. Oxley,
who was pushing the proposal, told me last week he had the
votes sewn up.

The tide changed today when the Commerce committee
overwhelmingly defeated Oxley's amendment. In a 35-16 vote,
members rejected restrictions on manufacturing unapproved
encryption devices and instead approved a modified version
of Rep. Goodlatte's original Security and Freedom through
Encryption (SAFE) bill.

The vote came after a last-minute press by a diverse
coalition of industry groups, including some who had never
weighed in on crypto before, including the automobile
companies and the Baby Bells. (In fact, the Bells may have
been the deciding factor in defeating the measure.)

The version of SAFE the Commerce committee approved
includes: criminal penalties (doubled from the original)
for the use of encryption in a crime, a prohibition on
mandatory domestic key escrow, delinking certificate
authorities from key escrow requirements, a "NET" center to
coordinate law enforcement codebreaking, a classfied study
to be conducted by the Attorney General, a NIST study on
crypto, and liability limitations on firms providing key
recovery. It also includes SAFE's original export
relaxation on encryption products that are already
available overseas or are in the public domain.

Many of those changes were proposed by Reps. Markey and
White, who had their amendment approved 40-11. The amended
bill was approved out of the committee by a 44-6 vote.

(One lobbyist just leaned over, martini in hand, and asked
me, "Do you need a quote, Declan?" //sigh//)

Today's discussion before the committee was all about
compromise -- which, after all, shouldn't be surprising.
Washington politicians thrive on it. If politics is the art
of the possible, compromise is its lifeblood. But to the
chagrin of politicans, staffers, and bureaucrats alike, the
politics of encryption doesn't provide one. Either you use
backdoored crypto or you don't. Either you have unalloyed
privacy or you don't. There's no middle ground.

Of course it's one thing to compromise on tax bills or
spending measures. That's not only expected, it's
necessary. But it's another thing entirely to compromise on
a bill that deals with fundamental freedoms.  How many
newspapers is it acceptable for the government to review
and censor before publication? How many Americans can be
imprisoned without a public trial? Sometimes, including
now, Americans should stand on principle and reject that
any and all "compromises." A coalition of groups from the
American Civil Liberties Union to the Eagle Forum sent out
just that letter earlier today.

Those groups understand what high tech firms have been slow
to realize: Congress will not, and cannot, approve a bill
that benefits crypto-liberty. Right now there are no
domestic controls on encryption. After Congress passes a
bill, that will surely change. The crypto-in-a-crime
provisions are destined to stay in. When crypto becomes
omnipresent, Congress might just as well punish you for
speaking Spanish in the commission of a crime.

(By now the lobbyists are drunk. One just leaned over,
laughing excitedly, and yelled in my ear: "Cold fusion
still doesn't work!" Huh? Whatever. Seriously, folks, I do not
make this stuff up. Another fellow says the quote of the
day is: "The FBI tried to take the country hostage.")

Anyway, today firms saw their arguments used against them.
For years companies have testified before Congress that crypto
was readily available at the corner software store. One
Congressman recently even waved around a shrinkwrapped copy
of Lotus Notes as a prop. At last the techno-impaired
members of the House Commerce committee have realized that
strong crypto was available through a point-and-click
download (or for $19.95). But instead of allowing the
//overseas// distribution of encryption, they instead came
close to banning the //domestic// distribution.

By now even the more censorhappy members of Congress are
sick and tired of hearing about pedophiles and child
pornographers and molesters and such. Even the
druglords-wielding-crypto claims pales after a while -- at
least if you've heard it 17 times in the past few weeks. So
today Rep. Oxley whipped out his trump card: if you don't
vote for my amendment, you'll get blown up! "How about some
terrorist orgainztion acting with impunity because they
have the ability to communicate with impunity gets a hold
of a Russian nuclear device and threatens to blow up the
Capitol of the United States?"

In the end, Oxley's amendment didn't carry the day. It was of
course almost entirely the successful lobbying -- and if
firms can't win in the //Commerce// committee, where can they
win? -- but to their credit, some Congressmen actually talked
about the Constitutional issues involved. "This is about our
liberty and how far we will go in protecting our liberties,"
said Rep. Rogan, a former prosecutor and judge who spoke
against Oxley.

The future, however, is uncertain. The bill now goes to the
House Rules committee, whose chairman said today in a
strongly-worded letter that he'd only allow a bill to go to
the floor if it included Oxley's amendment. Look for a hell
of a lot of behind-the-scenes lobbying on this now...


Declan McCullagh
Time Inc.
The Netly News Network
Washington Correspondent