An Open Letter to Members of the House Commerce Committee
September 24, 1997
September 24, 1997
We write this letter to urge you to oppose the Oxley-Manton amendment to H.R. 695, the Security and Freedom through Encryption (SAFE) Act. While our organizations sometime disagree emphatically with each other, we are all united in asking you to oppose any and all attempts to limit the right of all Americans to get and use whatever encryption protection we want.
Specifically included among the proposals we urge you to oppose are provisions like those found in the amendments to H.R. 695 proposed by the FBI draft, the Intelligence Committee, and the National Security Committee, and in the McCain-Kerrey bill (S. 909) in the Senate. We also urge you to oppose as well any proposal establishing a legal structure for key recovery even if temporarily "voluntary," any so-called "compromise" provision drawn from Oxley-Manton or the other specified proposal, and any new proposal that would limit the availability and use of strong encryption.
Representatives of our organizations have already informed Congress of our vigorous opposition to any anti-encryption legislation. We take this opportunity to underscore four key points.
OXLEY-MANTON ATTACKS THE WAY ORDINARY AMERICANS USE ENCRYPTION.
Without realizing it, ordinary Americans already use encryption in their everyday lives. Cordless and cellular phones, and every digital phone system uses encryption to protect privacy. Oxley-Manton would require a backdoor breech in encryption security distributed, manufactured or sold after January 31, 2000. Online browsers for the Internet also use encryption, with a similar backdoor breech in security required by Oxley-Manton. Every computer that uses encryption – sometimes with just a keystroke – to protect the contents of sensitive medical, legal, religious counseling and other files would be subject to the same Oxley-Manton backdoor breech in security.
OXLEY-MANTON INCREASES THE LIKELIHOOD OF CRIMINAL ACTIVITY.
The Oxley-Manton amendment and the other proposals would compel encryption programs to contain a "backdoor" for law enforcement either by establishing a regime to recover the keys to the scrambled message or by providing immediate decoding of the message. The governments own experts, however, conclude that the backdoor cannot be limited to law enforcement. Instead, the backdoor makes the encryption protection vulnerable to attack by prying neighbors, business competitors, private investigators, and others who want to profit >from illicitly gained information. (See the May 1996 report of the National Research Council.) A mother, for example, arranging to pick up her child at day care ought not have the safety of those arrangements jeopardized by the Oxley-Manton backdoor breech in security.
OXLEY-MANTON IGNORES THE FACT THAT LAW ENFORCEMENT IS NOT PERFECT.
The Oxley-Manton amendment and the other proposals neglect the fact that law enforcement agencies are human institutions with some of their people subject to the frailties common to human nature and prejudice, avarice, arrogance and abuse of power. We need only to recall the documented abuses of federal agents at Ruby Ridge, in Filegate, in surveilling civil rights and religious leaders, in harassing honest taxpayers and law-abiding businesses – as well as those established instances of police abuse at the local level – to understand that placing unprecedented power in the hands of law enforcement to violate the people’s privacy is extremely dangerous.
OXLEY-MANTON MAKES ORDINARY AMERICANS THE SERVANTS OF THE STATE.
At the core of American political values is the fundamental concept that individual Americans have certain rights and that governments are instituted, in the words of the Declaration of Independence, "to secure these rights." As a free people, Americans are the masters -- not the servants -- of the state. Indeed, our constitutional system is founded on the principle that the people have certain rights that cannot be violated. The Oxley-Manton amendment and the other proposals reverse this relationship, making the government’s appetite for spying on its citizens the number one priority while requiring that ordinary Americans constrict their lives, the protection for their families and businesses, in order to accommodate government surveillance. In doing so, the Oxley-Manton amendment and the other proposals betray the essential values of our democracy.
CONCLUSION
We urge you to stand up for the privacy and security of Americans by opposing any and all of the provisions of the Oxley-Manton amendment, the other amendments cited, the McCain-Kerrey bill and any provision requiring or fostering the development of a key recovery regime even if presented initially as "voluntary." We also urge you to reject any so-called "compromise" based in whole or part on these proposals. Finally, we urge the removal of the criminalization provision in H.R. 695, the SAFE bill.
Sincerely,
American Civil Liberties Union
Americans for Tax Reform
Eagle Forum
Electronic Privacy Information Center
Privacy International
United States Privacy Council
For more information, please contract:
Donald Haines, Legislative Counsel, American Civil Liberties Union,
202/675-2322; privaclu@aol.com.
James P. Lucier, Jr., Director of Economic Research, Americans for Tax
Reform, 202/785-0266; lucier@atr.org.
Kris Ardizzone, Executive Director, Eagle Forum, 202/544-0353;
eagleforum@aol.com
David Sobel, Legal Counsel, Electronic Privacy Information Center,
202/544-9240; sobel@epic.org.