Pro-Code bill under microscope

The Senate Commerce Committee met today to hear testimony and grill top executives and government officials about the Pro-Code bill, which would reject current regulations limiting the export of encryption.

The hearing featured familiar faces and familiar points of view but didn't shed much light on the facts at the heart of the debate. That led some senators to express frustration and confusion.

"We're still arguing about every foundational fact on which we're supposed to make a judgment," said Sen. John Kerry (D-Massachusetts). "I think it's one of the reasons everyone's in such a quandary."

Kerry was referring specifically to various reports about the availability of foreign-made encryption. The government claims the availability of such software is negligible; Pro-Code proponents say that the "genie is out of the bottle" and that hundreds of products are already available.

Other observers were also frustrated with the proceedings. "Even the technical terms are being used in a fast and loose way," said Dave Banisar, attorney for the Electronic Privacy Information Center, an online rights organization that generally supports the Pro-Code efforts. "They're all jumbling up what means what. [Netscape Communications CEO] Jim Barksdale did it, too."

Other senators worried aloud that the U.S. software industry would be deeply hurt if the stalemate between the opposing camps continues much longer. But paralysis seems inevitable with the two camps so far apart in their appraisal of the facts.

For example, U.S. cryptography envoy David Aaron contended that the Clinton administration's new export plan, in place since January 1, is so generous that foreign countries have complained that it gives U.S. companies an unfair advantage. EPIC's Banisar labeled Aaron's statements "false."

Aaron added the administration has no intention of limiting domestic use of encryption, despite FBI director Louis Freeh's earlier assertion that easy availability of strong encryption at retail stores such as Radio Shack was worrisome.

Pro-Code sponsor Sen. Conrad Burns (R-Montana) argued that the government's export policy was a "squeeze chute" that indirectly limited domestic use.

The Senate Commerce Committee will meet privately to continue debate over Pro-Code. The House tomorrow holds hearings on a similar bill, the Security and Freedom Through Encryption Act. Audio transcripts of the SAFE hearings and the Pro-Code proceedings will be available at Democracy.Net.

Even if the bills pass in their repective chambers and are combined in a conference committee, they face an almost certain presidential veto that would be difficult to overturn.

Despite today's retrenchment, both sides have recently made small steps to reach out and have been rebuffed by the opposition. The administration's new plan allows the temporary export of stronger encryption in exchange for access to keys to unlock encrypted data.

Meanwhile, Pro-Code sponsors added a provision to create an "Information Security Board" for representatives of federal law enforcement agencies involved in encryption. Freeh said today that he did not see the board as a viable compromise.