Home > 106th Congressional Bills > H.R. 851 (ih) To require the Federal Communications Commission to establish improved predictive models for determining the availability of television broadcast signals. [Introduced in House] ...

H.R. 851 (ih) To require the Federal Communications Commission to establish improved predictive models for determining the availability of television broadcast signals. [Introduced in House] ...


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        products or services.
The Secretary shall submit a report to the Congress regarding the 
results of such inquiry by such date.
    (b) Removal of Impediments to Trade.--Within 1 year after such date 
of enactment, the Secretary shall prescribe such regulations as may be 
necessary to reduce the impediments to trade in encryption products and 
services identified in the inquiry pursuant to subsection (a) for the 
purpose of facilitating the development of interstate and foreign 
commerce. Such regulations shall be designed to--
            (1) promote the sale and distribution, including through 
        electronic commerce, in foreign commerce of encryption products 
        and services manufactured in the United States; and
            (2) strengthen the competitiveness of domestic providers of 
        encryption products and services in foreign commerce, including 
        electronic commerce.
    (c) International Agreements.--
            (1) Report to president.--Upon the completion of the 
        inquiry under subsection (a), the Secretary shall submit a 
        report to the President regarding reducing any impediments to 
        trade in encryption products and services that are identified 
        by the inquiry and could, in the determination of the 
        Secretary, require international negotiations for such 
        reduction.
            (2) Negotiations.--The President shall take all actions 
        necessary to conduct negotiations with other countries for the 
        purposes of (A) concluding international agreements on the 
        promotion of encryption products and services, and (B) 
        achieving mutual recognition of countries' export controls, in 
        order to meet the needs of countries to preserve national 
        security, safeguard privacy, and prevent commercial espionage. 
        The President may consider a country's refusal to negotiate 
        such international export and mutual recognition agreements 
        when considering the participation of the United States in any 
        cooperation or assistance program with that country. The 
        President shall submit a report to the Congress regarding the 
        status of international efforts regarding cryptography not 
        later than December 31, 2000.

SEC. 12. COLLECTION OF INFORMATION ON EFFECT OF ENCRYPTION ON LAW 
              ENFORCEMENT ACTIVITIES.

    (a) Collection of Information by Attorney General.--The Attorney 
General shall compile, and maintain in classified form, data on the 
instances in which encryption (as defined in section 2801 of title 18, 
United States Code) has interfered with, impeded, or obstructed the 
ability of the Department of Justice to enforce the criminal laws of 
the United States.
    (b) Availability of Information to the Congress.--The information 
compiled under subsection (a), including an unclassified summary 
thereof, shall be made available, upon request, to any Member of 
Congress.

SEC. 13. PROHIBITION ON TRANSFERS TO PLA AND COMMUNIST CHINESE MILITARY 
              COMPANIES.

    (a) Prohibition.--Whoever knowingly and willfully transfers to the 
People's Liberation Army or to any Communist Chinese military company 
any encryption product that utilizes a key length of more than 56 
bits--
            (1) in the case of a first offense under this section, 
        shall be imprisoned for not more than 5 years, or fined under 
        title 18, United States Code, or both; and
            (2) in the case of second or subsequent offense under this 
        section, shall be imprisoned for not more than 10 years, or 
        fined under title 18, United States Code, or both.
    (b) Definitions.--For purposes of this section:
            (1) Communist chinese military company.--(A) Subject to 
        subparagraph (B), the term ``Communist Chinese military 
        company'' has the meaning given that term in section 1237(b)(4) 
        of the Strom Thurmond National Defense Authorization Act for 
        Fiscal Year 1999 (50 U.S.C. 1701 note).
            (B) At such time as the determination and publication of 
        persons are made under section 1237(b)(1) of the Strom Thurmond 
        National Defense Authorization Act for Fiscal Year 1999, the 
        term ``Communist Chinese military company'' shall mean the list 
        of those persons so published, as revised under section 
        1237(b)(2) of that Act.
            (2) People's liberation army.--The term ``People's 
        Liberation Army'' has the meaning given that term in section 
        1237(c) of the Strom Thurmond National Defense Authorization 
        Act for Fiscal Year 1999.

SEC. 14. FAILURE TO DECRYPT INFORMATION OBTAINED UNDER COURT ORDER.

    Whoever is required by an order of any court to provide to the 
court or any other party any information in such person's possession 
which has been encrypted and who, having possession of the key or such 
other capability to decrypt such information into the readable or 
comprehensible format of such information prior to its encryption, 
fails to provide such information in accordance with the order in such 
readable or comprehensible form--
            (1) in the case of a first offense under this section, 
        shall be imprisoned for not more than 5 years, or fined under 
        title 18, United States Code, or both; and
            (2) in the case of second or subsequent offense under this 
        section, shall be imprisoned for not more than 10 years, or 
        fined under title 18 United States Code, or both.

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Security And Freedom through 
Encryption (SAFE) Act''.

SEC. 2. SALE AND USE OF ENCRYPTION.

    (a) In General.--Part I of title 18, United States Code, is amended 
by inserting after chapter 123 the following new chapter:

        ``CHAPTER 125--ENCRYPTED WIRE AND ELECTRONIC INFORMATION

``Sec.
``2801. Definitions.
``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.
``Sec. 2801. Definitions
    ``As used in this chapter--
            ``(1) the terms `person', `State', `wire communication', 
        `electronic communication', `investigative or law enforcement 
        officer', and `judge of competent jurisdiction' have the 
        meanings given those terms in section 2510 of this title;
            ``(2) the term `decrypt' means to retransform or unscramble 
        encrypted data, including communications, to its readable form;
            ``(3) the terms `encrypt', `encrypted', and `encryption' 
        mean the scrambling of wire communications, electronic 
        communications, or electronically stored 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 
        communications or information;
            ``(4) the term `key' means the variable information used in 
        a mathematical formula, code, or algorithm, or any component 
        thereof, used to decrypt wire communications, electronic 
        communications, or electronically stored information, that has 
        been encrypted; and
            ``(5) the term `key recovery information' means information 
        that would enable obtaining the key of a user of encryption;
            ``(6) the term `plaintext access capability' means any 
        method or mechanism which would provide information in readable 
        form prior to its being encrypted or after it has been 
        decrypted;
            ``(7) 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).
``Sec. 2802. Freedom to use encryption
    ``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.
``Sec. 2803. Freedom to sell encryption
    ``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.
``Sec. 2804. Prohibition on mandatory key escrow
    ``(a) General Prohibition.--Neither the Federal Government nor a 
State may require that, or condition any approval on a requirement 
that, a key, access to a key, key recovery information, or any other 
plaintext access capability be--
            ``(1) built into computer hardware or software for any 
        purpose;
            ``(2) given to any other person, including a Federal 
        Government agency or an entity in the private sector that may 
        be certified or approved by the Federal Government or a State 
        to receive it; or
            ``(3) retained by the owner or user of an encryption key or 
        any other person, other than for encryption products for use by 
        the Federal Government or a State.
    ``(b) Exception for Government National Security and Law 
Enforcement Purposes.--The prohibition contained in subsection (a) 
shall not apply to any department, agency, or instrumentality of the 
United States, or to any department, agency, or political subdivision 
of a State, that has a valid contract with a nongovernmental entity 
that is assisting in the performance of national security or law 
enforcement activity.
    ``(c) Exception for Access for Law Enforcement Purposes.--
Subsection (a) shall not affect the authority of any investigative or 
law enforcement officer, or any member of the intelligence community as 
defined in section 3 of the National Security Act of 1947 (50 U.S.C. 
401a), acting under any law in effect on the effective date of this 
chapter, to gain access to encrypted communications or information.
``Sec. 2805. Unlawful use of encryption in furtherance of a criminal 
              act
    ``(a) Encryption of Incriminating Communications or Information 
Unlawful.--Any person who, in the commission of a felony under a 
criminal statute of the United States, knowingly and willfully encrypts 
incriminating communications or information relating to that felony 
with the intent to conceal such communications or information for the 
purpose of avoiding detection by law enforcement agencies or 
prosecution--
            ``(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) Use of Encryption Not a Basis for Probable Cause.--The use of 
encryption by any person shall not be the sole basis for establishing 
probable cause with respect to a criminal offense or a search 
warrant.''.
    (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 123 the following new item:

``125. Encrypted wire and electronic information............    2801''.

SEC. 3. EXPORTS OF ENCRYPTION.

    (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) Certain Consumer Products, Computers, and Related 
Equipment.--
            ``(1) General rule.--Subject to paragraphs (2) and (3), the 
        Secretary shall have exclusive authority to control exports of 
        all computer hardware, software, computing devices, customer 
        premises equipment, communications network equipment, 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.--After a 1-time 
        technical review by the Secretary, which shall be completed not 
        later than 30 working days after submission of the product 
        concerned for such technical review, no export 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 computer hardware or software or 
                computing device, including computer hardware or 
                software or computing devices with encryption 
                capabilities--
                            ``(i) that is generally available;
                            ``(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
                            ``(iii) that is used in a commercial, off-
                        the-shelf, consumer product or any component or 
                        subassembly designed for use in such a consumer 
                        product available within the United States or 
                        abroad which--
                                    ``(I) includes encryption 
                                capabilities which are inaccessible to 
                                the end user; and
                                    ``(II) is not designed for military 
                                or intelligence end use;
                    ``(B) any computing device solely because it 
                incorporates or employs in any form--
                            ``(i) computer hardware or software 
                        (including computer hardware or software with 
                        encryption capabilities) that is exempted from 
                        any requirement for a license under 
                        subparagraph (A); or
                            ``(ii) computer hardware or software that 
                        is no more technically complex in its 
                        encryption capabilities than computer hardware 
                        or software that is exempted from any 
                        requirement for a license under subparagraph 
                        (A) but is not designed for installation by the 
                        purchaser;
                    ``(C) any computer hardware or software or 
                computing device solely on the basis that it 
                incorporates or employs in any form interface 
                mechanisms for interaction with other computer hardware 
                or software or computing devices, including computer 
                hardware and software and computing devices with 
                encryption capabilities;
                    ``(D) any computing or telecommunication device 
                which incorporates or employs in any form computer 
                hardware or software encryption capabilities which--
                            ``(i) are not directly available to the end 
                        user; or
                            ``(ii) limit the encryption to be point-to-
                        point from the user to a central communications 
                        point or link and does not enable end-to-end 
                        user encryption;
                    ``(E) technical assistance and technical data used 
                for the installation or maintenance of computer 
                hardware or software or computing devices with 
                encryption capabilities covered under this subsection; 
                or
                    ``(F) any encryption hardware or software or 
                computing device not used for confidentiality purposes, 
                such as authentication, integrity, electronic 
                signatures, nonrepudiation, or copy protection.
            ``(3) Computer hardware or software or computing devices 

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