S. 2067 - E-Privacy Act

Title.  E-Privacy Act.

Sponsors.  Sen. Ashcroft (R-MO), Burns, Leahy, Murray, Gorton, Craig, Faircloth, Kempthorne, Hutchison, Boxer, Wyden.

Summary.  S 2067 IS is titled E-PRIVACY, which is both descriptive, and an acronym for Encryption Protects the Rights of Individuals from Violation and Abuse in CYberspace.  The bill would prevent the government from mandating key-recovery or key-escrow, guarantee the right of U.S. citizens to use whatever kind or strength of encryption software they choose, and relax current export controls on encryption technologies.  The basic protection is stated in 101(a): "... it shall be lawful for any person within the United States, and for any United States person in a foreign country, to use, develop, manufacture, sell, distribute, or import any encryption product, regardless of the encryption algorithm selected, encryption key length chosen, existence of key recovery or other plaintext access capability, or implementation or medium used."

The bill would ban on government mandated key escrow.  101(b) states: "... no agency of the United States nor any State may require, compel, set standards for, condition any approval on, or condition the receipt of any benefit on, a requirement that a decryption key, access to a decryption key, key recovery information, or other plaintext access capability be (A) given to any other person, including any agency of the United States or a State, or any entity in the private sector; or (B) retained by any person using encryption."

The bill would also create a NET Center, a new law enforcement entity at the Department of Justice, to study decryption, interception, and accessing of  communications and stored data.  The bill would also allow law enforcement access to decryption keys under existing wiretap authority, and allow law enforcement to obtain keys or third-party assistance for remotely stored data with a warrant or subpoena.  It would also create a new federal crime of unlawful use of encryption.

The bill would provide that in a criminal investigation the government can compel a third party holding an encryption key, or otherwise capable of decrypting communications, to promptly provide decryption assistance, provided that the government first obtains a court order. ( 2803(a).)  The bill would also provide that the government can compel a third party to assist in decrypting stored data, provided that the government first obtains either a state or federal warrant, a subpoena, or the consent of the owner of the records.  And in any case, the government would be required to serve a copy of the warrant or subpoena upon the owner of the records.  ( 2804.)

The bill would create a new federal crime called unlawful use of encryption.   2802 states: "Any person who, during the commission of a felony under Federal law, knowingly and willfully encrypts any incriminating communication or information relating to that felony, with the intent to conceal that communication or information for the purpose of avoiding detection by a law enforcement agency or prosecutor (1) in the case of a first offense under this section, shall be imprisoned not more than 5 years, fined under this title, or both ..."

The bill would create a new National Electronic Technologies Center (NET Center) in the Department of Justice, which would assist law enforcement at all levels with expertise in encryption technology.  It would be similar to the "Information Security Board" referenced in the Pro-CODE Act.  It would serve as a center for federal, state, and local law enforcement authorities for information and assistance with decryption.  It would facilitate the exchange of information, study encryption and develop methods to "facilitate the ability of law enforcement to gain efficient access to plaintext of communications and electronic information," and study interception and access techniques.  2806(6) states:  "Upon the request of the Director of the NET Center, the head of any department or agency of the Federal Government may, to assist the NET Center in carrying out its duties under this subsection (A) detail, on a reimbursable basis, any of the personnel of such department or agency to the NET Center; and (B) provide to the NET Center facilities, information, and other nonpersonnel resources."

Status.  Introduced in Senate on May 12, 1998 as a "compromise" bill.  Referred to Senate Judiciary Committee.  No further action has been taken.

Legislative History.