LEXIS-NEXIS® Congressional Universe-Document
LEXIS-NEXIS® Congressional
Copyright 1999 Federal Document Clearing House, Inc.
FDCH Political Transcripts
July 13, 1999, Tuesday
TYPE:
COMMITTEE HEARING
LENGTH: 25771 words
COMMITTEE:
HOUSE INTERNATIONAL RELATIONS COMMITTEE
HEADLINE: U.S. REPRESENTATIVE BENJAMIN GILMAN (R-NY) HOLDS MARKUP ON EXPORT CONTROLS ON
ENCRYPTION TECHNOLOGY
LOCATION: WASHINGTON, D.C.
BODY:
HOUSE COMMITTEE ON INTERNATIONAL RELATIONS HOLDS MARKUP ON
EXPORT CONTROLS ON ENCRYPTION
JULY 13, 1999
SPEAKERS: U.S. REPRESENTATIVE BENJAMIN A. GILMAN (R-NY),
CHAIRMAN
U.S. REPRESENTATIVE WILLIAM F. GOODLING (R-PA)
U.S. REPRESENTATIVE JAMES A. LEACH (R-IA)
U.S. REPRESENTATIVE HENRY J. HYDE (R-IL)
U.S. REPRESENTATIVE DOUG BEREUTER (R-NE)
U.S. REPRESENTATIVE CHRISTOPHER H. SMITH (R-NJ)
U.S. REPRESENTATIVE DAN BURTON (R-IN)
U.S. REPRESENTATIVE ELTON GALLEGLY (R-CA)
U.S. REPRESENTATIVE ILEANA ROS-LEHTINEN (R-FL)
U.S. REPRESENTATIVE CASS BALLENGER (R-NC)
U.S. REPRESENTATIVE DANA ROHRABACHER (R-CA)
U.S. REPRESENTATIVE DONALD A. MANZULLO (R-IL)
U.S. REPRESENTATIVE EDWARD R.
ROYCE (R-CA)
U.S. REPRESENTATIVE PETER T. KING (R-NY)
U.S. REPRESENTATIVE STEVE CHABOT (R-OH)
U.S. REPRESENTATIVE MARSHALL
"MARK" SANFORD (R-SC)
U.S. REPRESENTATIVE MATT SALMON (R-AZ)
U.S. REPRESENTATIVE AMO HOUGHTON (R-NY)
U.S. REPRESENTATIVE TOM CAMPBELL (R-CA)
U.S. REPRESENTATIVE JOHN M. MCHUGH (R-NY)
U.S. REPRESENTATIVE KEVIN BRADY (R-TX)
U.S. REPRESENTATIVE RICHARD M. BURR (R-NC)
U.S. REPRESENTATIVE PAUL GILLMOR (R-OH)
U.S. REPRESENTATIVE GEORGE P. RADANOVICH (R-CA)
U.S. REPRESENTATIVE JOHN COOKSEY (R-LA)
U.S. REPRESENTATIVE TOM TANCREDO (R-CO)
U.S. REPRESENTATIVE SAM GEJDENSON (D-CT),
RANKING MEMBER
U.S. REPRESENTATIVE TOM LANTOS (D-CA)
U.S. REPRESENTATIVE HOWARD L. BERMAN (D-CA)
U.S. REPRESENTATIVE GARY L. ACKERMAN (D-NY)
U.S. REPRESENTATIVE ENI F.H. FALEOMAVAEGA (D-AS)
U.S. REPRESENTATIVE MATTHEW G. MARTINEZ (D-CA)
U.S. REPRESENTATIVE DONALD M. PAYNE (D-NJ)
U.S. REPRESENTATIVE ROBERT MENENDEZ (D-NJ)
U.S. REPRESENTATIVE SHERROD BROWN (D-OH)
U.S. REPRESENTATIVE CYNTHIA A. MCKINNEY (D-GA)
U.S. REPRESENTATIVE ALCEE L. HASTINGS (D-FL)
U.S. REPRESENTATIVE PAT DANNER (D-MO)
U.S. REPRESENTATIVE EARL F. HILLIARD (D-AL)
U.S. REPRESENTATIVE BRAD SHERMAN (D-CA)
U.S. REPRESENTATIVE ROBERT WEXLER (D-FL)
U.S. REPRESENTATIVE STEVEN R. ROTHMAN (D-NJ)
U.S. REPRESENTATIVE JIM DAVIS (D-FL)
U.S. REPRESENTATIVE
EARL POMEROY (D-ND)
U.S. REPRESENTATIVE WILLIAM D. DELAHUNT (D-MA)
U.S. REPRESENTATIVE GREGORY W. MEEKS (D-NY)
U.S. REPRESENTATIVE BARBARA LEE (D-CA)
U.S. REPRESENTATIVE JOSEPH CROWLEY (D-NY)
U.S. REPRESENTATIVE JOSEPH HOEFFEL (D-PA)
*
GILMAN: The committee will now come to order.
Members will take their seats. The Committee on International Relations
Committee meets today in open session pursuant to notice to consider H.R. 850,
The Safe Act.
Mr. Gejdenson and I will need to make our opening remarks in the context of
debating the bill under the five minute rule. The chair lays the bill before
the committee.
The clerk will report the title of the bill.
CLERK: H.R. 850, a bill to amend Title 18, United States Code, to affirm the
rights of United States persons to use and sell encryption and to relax export
controls on encryption.
GILMAN: Without objection, the first reading of the bill will be dispensed
with. The clerk will read the bill for amendment.
CLERK: Be it enacted by the Senate and House of Representatives of the United
States of America and Congress assembled. Section 1, short
title...
GILMAN: Without objection, the bill will be considered as having been read for
amendments, open to amendment at any point. I recognize myself for general
remarks under the five minute rule.
The committee has held a number of briefings on this measure, the most recent
of which took place just a few minutes ago with Deputy Defense Secretary John
Hamre.
In the course of these meetings we have heard convincing evidence contrary to
the claims put forward by the supporters of the legislation, that the U.S.
companies are not significantly disadvantaged in the international marketplace
because of U.S. export policies.
We have learned that not all the products reported as available overseas are
actually available. Some of the products on foreign markets are not being
implemented properly and others lack sufficient user support to be fully
operable.
But don't just take my
word for it. And if you are still skeptical after hearing and reading the
comments of Deputy Secretary Hamre on this issue, then I urge you to read the
brief testimony of the executive vice president of Baltimore Technologies
before the Telecommunications Subcommittee on May 25th of this year. Note that
this encryption company is located in Ireland and is frequently cited as one of
the firms profiting from the export restrictions on American firms. And
according to Vice President Holohan (ph) that it's misleading to state that
non-American companies are flourishing because of current U.S. policy.
In his words, and I quote,
"we believe that a very small percentage of our business comes as a direct
result of American export restrictions. Surveys are often presented stated the
number of programs available internationally that include strong encryption.
What these surveys neglect to mention is that the dollar value of the sales of
all of these products is very small when compared with sales of
similar products in our nation."
He also goes on to note that most countries do in fact have effective
restrictions that regulate exports of cryptographic products and that his
company has to deal with three export -- differing export administrations in
Ireland, in the UK, and Australia.
In short I would argue that in light of the administration's ongoing efforts to
make many strong encryption products available overseas, there are no
compelling commercial arguments that favor enacting the measure before us
today.
And I believe that there are compelling arguments why the immediate decontrol
of encryption products as mandated under this bill, is very much not in our
national interest. Suppose a potential enemy were able to procure an
off-the-shelf encryption capability and would then we able to take actions
complicating our military planning, including putting our troops at increased
risk.
Suppose for example that the Colombian Fork (ph), the
revolutionary terrorist group there, which has moved into narcotics
trafficking, into extortion, kidnapping and global organized crime would be
able to effectively encrypt its communications and in complete security conduct
its efforts to overthrow a democratically elected government.
If we chose to eliminate effective controls how many friendly governments would
we put at risk? How many embassies and military barracks would be put at
additional risk?
I believe that the quality in U.S. encryption products is second- to-none and
that reasonable restrictions are not going to impact demand. I believe that
the Congress and the administration can and should world together to craft
rational export control policies that balance our security interests with the
need to U.S. firms to compete overseas.
Together with my colleagues on both sides of the aisle, I will be offering
several amendments that will but the safe back in to The Safe Act and will
try to achieve that balance.
I now recognize our ranking minority member Mr. Gejdenson for any opening
remarks he may have.
GEJDENSON: Thank you Mr. Chairman. My great regret is that of course is that
most of the people here and even some of the members we're here for the secret
session. Secret sessions somehow give like a good housekeeping seal of
approval on the information. And frankly, most of the information could and
should have been discussed in public.
What we are dealing with here is we're trying to again as we did in machine
tools and so many other systems, achieve a goal that is not achievable. For a
long time the Defense Department said no export of American machine tools.
Their quality is too high. And then what happened was because we were
concerned that the Soviets at that time would get it, and be able to make
submarines that were quieter than anybody elses.
Low and behold, after a while the Defense
Department said we don't want to buy American machine tools. We want to buy
Japanese machine tools because they're better than ours because they've taken
advantage of all the international markets. And yes, when the Soviets finally
got that technology, we didn't want them to get, they bought a Toshiba machine
not an American-made machine.
Now there may have been some false hope in controlling machine tool technology.
The very large, big items you can actually monitor their movement to some
degree.
We're actually trying to monitor something less than this because since all
this software is available in the United States, what you can do is go upstairs
to your computers from this Capital building, and take this and transfer it
anywhere in the world in minutes. Now yes, I would tell anybody who has bought
any of this software and traveled overseas that there is a restriction on its
export
even today. At the bottom of each of these boxes, it says
"not for sale outside the United States and Canada."
Now, periodically we read in the papers that 30 tons of marijuana or cocaine
are found on a boat. All too many as we know of those boats are getting into
the country. How difficult do you think it is to take not the whole box, not
even this disc, but the information on the disc over the Internet globally?
Now what is available today in this country is therefore available worldwide.
Now I -- and I think every members of this committee -- wants our intelligence
folks to be able to access the information from terrorists and dangerous
organizations worldwide, countries or otherwise.
Nothing in the legislation before us would restrict the administration's
ability to do that. The answer is clear -- we have to keep moving forward in
having better systems to engage the enemy from decryption to other intelligence
sources.
The
answer is also clear that we are not able to control these technologies that
are available globally.
And I will close with reminding my friends that in this administration, it has
done some good things recently on computers. But when they got to town there
was attempt by the Chinese who are, you know, the evil empire of today for many
of my colleagues. The Chinese wanted to buy 525 telephone switches and the
administration said no.
They didn't want them to have switches that fast. What happened? The Chinese
developed indigenous 525 capability. They built their own machines. Other
countries sold them 625, even faster equipment than they were trying to buy
from the United States. And yes finally, we ended up selling it as well.
It seems to me that what the bill before us gives us is legislation that
mirrors what's happening in other countries that have the same technology.
That it will allow us to continue to be the leader
worldwide and therefore it won't be the Americans going to the other countries
asking to buy their technology, but we will have that indigenous leadership.
And so I am hopeful that we will pass the bill pretty much in tact. I'm open
obviously to discussions. I think there is broad support for moving forward.
For over a decade now the intelligence community comes and tells us we are just
about to get an agreement with the Europeans. There are no such agreements
with the Europeans on restrictions. As a matter of fact, this legislation
mirrors what Wassenaar has agreed to and again Wassenaar has no ability to
mandate the countries in that organization to actually live by the policies
that it enunciates.
Let's move forward with this legislation. Move it to the floor and we will do
the right thing for national security and for the economy.
We have been dominant in other fields that we have lost. Today in
computer technology experts tell us that a computer's shelf life is as little
as six to nine months. In that kind of era, believing that you can somehow
keep technology under a shroud in a free society frankly is counter intuitive.
We need to protect our intelligence information. We cannot do it by blocking
the sale of what is generally available in this country and globally as
software.
Thank you Mr. Chairman.
GILMAN: Thank you Mr. Gejdenson. The chair recognizes Mr. Bereuter, the
distinguished chairman of our Subcommittee on the Asian Pacific.
BEREUTER: Thank you Mr. Chairman, my colleagues. While well intentioned, H.R.
850 to an important extent, still has a one dimensional focus on the decontrol
of encryption products which would upset the vital balance of U.S. policies
which it seeks toe strike between the competitiveness of American industry and
U.S.
national security and law enforcement goals.
Essentially as I see it, H.R. 850 in its present form would prohibit any review
of exports of encrypted software an encryption hardware items.
While proponents claim there is a catch-all provision in Section III of the
bill to prevent the sale of encryption technology to terrorists, this is really
only a symbolic gesture as there is no effective licensing review mechanism for
the government to use to trigger such an export denial.
The high end encryption products which H.R. 850 would allow to be exported
without effective restrictions, are not yet being widely used by individual
groups and governments whose activities pose threats to American security and
safety.
As I understand it the goal of U.S. export control policy is not to prevent
the spread of encryption worldwide, something which clearly cannot be done as
our colleague from
Connecticut has reminded us, but to slow down the spread of these products
enough to give U.S.-led commercial diplomacy an opportunity to achieve
increased multi-lateral cooperation on common export control policies, and on
the adoption of global key management infrastructure.
Amendments will be offered by the chairman, perhaps others, to address the
shortcomings of the legislation. These amendments are designed not to hinder
legitimate commerce to reputable sources, but to give the government the
ability to prevent the sale of sensitive encryption technology to terrorist
organizations, drug traffickers, increasingly sophisticated criminals and those
proliferating weapons of mass destruction.
These are the reasons for imposing responsible controls. I don't think any of
us want to give an encryption blank check to Osama bin Laden. None of us want
to be here a year from now in a classified oversight hearing
after some tragic event -- another embassy bombing or another Pam Am 103 and
learn that our intelligence community couldn't crack the terrorist
organization's encrypted communications in time to prevent the tragedy,
especially when we could have greatly diminished the chances of those
terrorists obtaining the technology in the first place with limited export
controls.
We need to close these loopholes in cryptology in this legislation. A recently
released cryptology guidelines from the Organization for Economic Cooperation
and Development, OECD, stressed the need to balance privacy, law enforcement,
national security concerns, and commercial interests. They also underlines the
fact that failure to coordinate these policies could cripple the global
information network and impede international trade. The assertion made by some
that all of America's competitors are indifferent to national security
concerns, and therefore, limited export controls only target American business
is not right, it's wrong.
BERMAN: Do those making such claims really believe that the Israelis support
unrestricted sales of advanced encryption to Syria?
Many of the key players with the technical capability to produce and market
cryptology products, country like Britain and France, generally share our
national security concerns and very quietly are working with us behind the
scenes to craft a new international agreement.
This is not a zero sum game, it's not a trade-off between national security or
commercial competitiveness. We can and must pursue both sets of objectives. I
believe we can through the amendment process make this a better balanced bill
that promotes commerce without harming American national security.
That, I think, is a very important duty before us today and we should not be
derelict or indifferent to that responsibility because of intense lobbying
pressure from those who do not have all of the relevant facts or are choosing
at this
stage for tactical reasons not to be candid about them at this stage.
Mr. Chairman, I urge my colleagues to listen carefully to the amendments you're
going to offer and others and support them.
GILMAN: Thank you, Mr. Bereuter.
Mr. Berman.
BERMAN: Thank you, Mr. Chairman. I -- the general principle, I think, that
unilateral controls on items which are generally available have no purpose
other than or have no consequence other than unfairly restricting American
producers of those items I think it true. And when you take that notion and
the importance of privacy and promoting encryption in communications in order
to protect privacy you make a strong case for -- you make a strong case for the
principles that the authors of this legislation are promoting.
But the devil here is in the details, and I truly think that no one on this
committee should vote on this bill until such
time as they have had a briefing not from -- not like we had just a while ago
from the -- from Secretary Hamre, but from the National Security Agency on what
goes on in the real world and what widely available and widely utilized truly
mean and what benefits we get from our activities at the National Security
Agency level in terms of enhancing American national security.
I think it's very important to remember what the administration has done. This
fight is about whether or not at this point 128-bit length encryption,
encryption which is impossible to break by a, what do they call it, a brutal
frontal assault or a mass attack or whatever the term of art is, whether that
can be exported.
By virtue of license exceptions, this administration has said you can export
the highest possible level of encryption to any subsidiary of any U.S. firm,
except those subsidiaries located in seven terrorist
countries, any bank or any insurance company in any of 45 countries, encryption
technology of any strength whatsoever can be exported to them.
Any health and medical organizations, including civilian governmental health
agencies, in those same 45 countries, excluding biochemical and pharmaceutical
manufacturers for the very important interests we have in dealing with the
proliferation of chemical weapons.
And to online merchants for client server applications in any of 45 countries
of any length whatsoever for the purpose of security electronic transactions
between merchants and their customers; in other words, e-commerce.
No key recovery, no key recovery is imposed on encryption makers by statute.
This bill goes too far in its present form for a variety of reasons, and there
will be amendments offered. I will have several, the chairman, I know, has
several,
Mr. Davis has an amendment, and there probably are others as well to try and
deal with problems in this bill.
When generally available could be construed to apply to any product which has
been distributed through the Internet to a particular end user, even though in
encrypted fashion, even though not available to the general public, the term
generally available is too loosely defined.
When the provision decontrolling any computer, including the most high end,
strongest performing computers now known are decontrolled automatically, no one
arguing that they should be decontrolled because that computer has embedded
encryption technology, that's crazy. That is crazy to do that. This
amendments offered by the chairman will correct that deficiency.
When the product review that is touted as the chance for the U.S. government to
deal with whether or not the most powerful encryption technology is going to
countries on the terrorist list or to military end users is so limited and so
quick and without any
consultation of the key agencies it's a meaningless, purposeless kind of
review.
We'll have an amendment to make that product review more meaningful, give it 30
days instead of 15 days, allow consultations with the National Security Agency
and the CIA and the Department of Defense and the Department of State; and
allow that technical product review to be on the product that's going to be
going to market and on any substantial change in that product and to get some
information on who the end user is. There's nothing in this bill that does
that now.
It is total form to say that this bill still allows controls on exports to
terrorist countries when there's no provision whatsoever that allows those
controls. An amendment on the product review will make that a meaningful
provision.
So I just urge the committee, I know all the forces in terms of lobbying this
bill, the
most wonderful companies in America, the companies that are the leaders in the
growth of our economy, that are making -- the most entrepreneurial, the most
innovative, with the smartest possible people are all lobbying in favor of this
legislation. And I know the impacts of that. And I think these are critical
industries and we have to do everything we can to try and help them survive and
maintain domination in world markets.
But this bill in its present form goes too far and I would just urge the
committee to listen to the amendments and, if you see fit, support them even
though they're not in the original bill, because I think they'll make this bill
better.
Thank you, Mr. Chairman.
GILMAN: Thank you, Mr. Berman.
I now recognize the distinguished chairman of our Subcommittee on International
Economic Policy and Trade, the gentle lady from Florida, Ileana Ros-Lehtinen.
ROS-LEHTINEN: Thank you so much, Mr. Chairman.
The
bill before us today is a necessary and vital piece of legislation. It helps
ensure that the U.S. will not only be able to compete effectively in the global
marketplace, but retain a leadership role in the development of new
technologies. It provides a tool for individual citizens to protect themselves
from intrusion and for American companies to shield themselves from corporate
espionage.
The National Counterintelligence Center, established in 1994 by presidential
directive, has on several occasions concluded that specialized technical
operations, including computer intrusion, telecommunications targeting and
intercept, and private sector encryption weaknesses account for the largest
portion of economic and industrial information lost by corporation.
We have sat in on many briefing by the CIA, NSA and DIA where members have been
told that U.S. military or security data is secured
thanks to counter-measures in place.
However, the reason why private entities are penetrated and U.S. and corporate
information are readily intercepted is because of lack of encryption or low
levels of encryption. Nevertheless, you will still hear arguments that the
Safe Act will have a negative impact on national security and law enforcement
by allowing for the export of higher bit encryption.
The Safe Act does provide safeguards against the use of encryption in
furtherance of a criminal act. It protects against the exports designed or
modified for military use. Thus the Safe Act in no way places the U.S. in
danger due to the liberalization of encryption exports.
The same national security arguments were raised last Congress during the
debate on the Safe Act and I would like to share briefly some of what has
happened since.
On the same day that the administration testified
before our subcommittee about the need to keep exports at 40-bit encryption,
undersecretary of commerce for export administration made an announcement just
hours later which significantly liberalized encryption policy for the banking
and the financial services industries.
In 1997, NSA claimed that the average time needed to decrypt a single message
by means of brute force attack on 56-bit encryption would be about one year and
87 days using a $30 million supercomputer. Well, given the ability of
encryption enthusiasts to break this encryption, the administration announced
an update to its policy in the fall of last year which permitted exports of
products over 56 bit to 46 countries without a license. Parenthetically, as
recently as January of this year, encryption enthusiasts broke a 56-bit code in
22
hours using a cracker (ph) and a network of distributed computers.
While NSA, for example, argues that passage of the Safe Act would harm its
ability to carry out its mission, they testified before our subcommittee that
NSA intercepts and analyzes the communication signals of our foreign
adversaries, many of which are guarded by codes and other complex electronic
counter-measures. And this statement clearly illustrates the fact that foreign
adversaries, terrorists, criminal elements have access to this technology
already. Who are we trying to keep it from? Who are we trying to control?
And lastly, I would like to point out that former NSA director Admiral
McConnell (ph) and former FBI Director William Webster have recently stated
that export restrictions on encryption are no longer a matter of national
security and that the U.S. must reevaluate our position. And this is what the
Safe Act does. Current law regulates the export of encryption technology
in a manner similar to military technology. The Safe Act brings U.S. law into
the present and into the future by looking at today's reality and at the actual
technological developments taking place on the world stage.
And I'd like to include the rest of my statement for the record, Mr. Chairman.
GILMAN: Without objection. Thank you, Ms. Ros-Lehtinen.
Mr. Menendez.
MENENDEZ: Thank you, Mr. Chairman.
Mr. Chairman, the goal of the FBI, NSA and law enforcement agencies is well
founded: a key recovery system which would ensure that they have access to the
requisite data to snag criminals or track suspected criminal activities. Yet
the proliferation of non-key recovery technology within the United States and
abroad and the rapid speed at which this industry is developing leads me to
believe that efforts to stymie the proliferation of encryption technology and
to develop a key recovery
system are too little too late.
American industry is rightly concerned about losing market shares to foreign
competitors who have virtually no restrictions in the sale of their products.
We can be certain that if U.S. companies cannot offer non-key recovery
encryption technology overseas, that consumers will buy it from the French,
Japanese and Israeli companies who are making similar products.
According to the Department of Commerce, electronic commerce transactions in
1996 were $12 million and are projected to reach $2.1 billion by the year 2000.
Encryption technology is rapidly becoming an integral part of our lives and as
it does demand for high quality, unrestricted encryption products will
escalate. The U.S. is the world leader in this field, but the balance of power
will quickly shift if the United States cannot meet consumer demands.
The encryption debate is not about
who does and who does not support our national security interests. No one is
advocating a policy that would intentionally compromise U.S. national security
or the safety of American citizens. The encryption debate is about whether or
not it is too late for the U.S. government and law enforcement to control the
spread of non-key recovery encryption products in the U.S. and abroad. I
believe that it is too late.
We should control the strongest encryption technologies. However, it's
untenable to control anything over 56-bit technology when the 128-bit
technology can be downloaded in the Internet.
I'll keep an open mind to the amendments offered, Mr. Chairman, but I urge
members to support the bill.
GILMAN: Thank you Mr. Menendez. Are there any members seeking recognition?
Mr. Rothman.
ROTHMAN: Thank you, Mr. Chairman. I want to start off by associating myself
with the
remarks of Mr. Bereuter and Mr. Berman. It would be my hope that if
sufficiently necessary amendments are adopted, that I would then be able to
support this bill, but I cannot support this bill as it stands now.
I certainly admire and respect the authors of this bill and what they're trying
to accomplish. But I do believe that we live in a very dangerous and hostile
world.
Given that belief, I want to take special care that our law enforcement
authorities are able to protect Americans and the West from those who would
harm us. There are those -- there are many well- funded bad guys out there in
the world who have access to the highest technologies and we have to protect
ourselves.
Notwithstanding that belief, I do believe that it is possible to reach a
compromise with some of the amendments that are going to be proposed shortly to
tighten up certain definitions about what is generally available in the
marketplace, the kind of work that has to be done encryption
producers before they come to the government for approval and a number of the
other amendments that have been placed before use.
But I did want to associate my remarks in particular with those of Mr. Bereuter
and Mr. Berman.
Thank you.
GILMAN: Thank you, Mr. Rothman. I have an amendment at the desk which the
clerk will report.
CLERK: Amendment offered by Gilman. Page 12, insert the following after line
18 and redesignate the succeeding paragraph accordingly. For...
GILMAN: Without objection, the amendment will be considered as having been
read. I now will speak to the amendment.
My amendment is quite simple. It's an approach to exporting that all the
members of our committee irrespective of where they stand on sending encryption
technology abroad should and I believe can fully support.
We're all familiar with the annual drug certification process. That process
requires a
report to the Congress each year on the level of cooperation that the
administration is or is not receiving from the 30 or so major drug producing or
major transit nations in the world. The list of these major nations linked to
the drug trade deals with a serious national security threat that these same
nations pose to the health and well being of our youngsters in our communities
from illicit drugs coming from abroad.
We must have cooperation from those nations and we ought to do nothing which
makes that full cooperation any more difficult.
It's only logical therefore that before we export encryption technology to
those major drug producing or major transit nations, we at least consult with
the attorney general of our nation, the DEA administrator and the FBI director,
all of whom (OFF-MIKE) have charged with illicit drugs from overseas out of our
nation -- of keeping those drugs from coming into our nation.
The fight against illicit drugs coming from abroad is clearly difficult
enough. They cost us tens of billions of dollars each year in societal costs.
These drugs are behind so much of our crime, particularly violent crime.
Nearby in Prince George's County, Maryland for example, the local police chief
says 80 percent of the 103 homicides in '98 were drug related. And most of
those drugs came from abroad.
We all know the value of quarter approved wire intercepts in the battle against
illicit drugs. For example, in Colombia, the source of 80 percent of the
world's cocaine, these intercepts help bring down both the powerful Cali and
Medellin drug cartels.
Our DEA played a central role in working with the Colombian national police in
the destruction of those cartels -- may we have your attention please -- by
being able to exploit their drug-related communications, using court
approved telephone intercepts. We ought to have the DEA's input through
consultation before we export products that can make their job protecting us
from illicit drugs any more difficult than it already is.
Our DEA administrator, former administrator, Tom Constantine has said, and I
quote,
"international drug traffickers now routinely turn on encryption devices in the
middle of their conversations with surrogates in the United States," close quote.
This outstanding former head of our DEA went on to say that these conversations
contain details of drug shipments to our nation, contain details of loads of
drugs and among other things, the murder of associates, of rivals, or police
officers who stand in their way.
We owe the DEA for themselves and speaking for the courageous and dedicated
police -- drug enforcement police in places like Colombia, fighting the illicit
drug trade, a
place at the table before we export encryption devices to the major drug
producing or transit nations.
DEA administrator Constantine went on to say that these devices would be used
to create and I quote,
"an electronic sanctuary where they kill children in our nation with their drugs," close quote.
Our nation's drug czar, retired General Barry McCaffrey, recently told the
president quote
"we cannot afford to enact legislation that fails to take into account the
demands of law enforcement as they relate to encryption," close quote.
My colleagues, we ought to do what we can to make certain that the electronic
drug producing or transit sanctuaries do not become the norm abroad.
Accordingly, I urge the adoption of my amendment as a common sense approach.
Certainly in the case of the major drug producing or transit nations, we can
pause and hear the views of law enforcement on the potential impact of
any encryption exports on the flow of drugs in to our nation.
GEJDENSON: Mr. Chairman.
GILMAN: Mr. Gejdenson.
GEJDENSON: Mr. Chairman, I have an amendment at the desk which I hope the
chairman will be able to accept.
GILMAN: The clerk will read the amendment. The clerk will distribute the
amendment.
CLERK: The amendment offered by Mr. Gejdenson page 17, insert the following
after line 22 and redesignate succeeding paragraphs accordingly. Three, drug
producing and trafficking entities, the secretary shall in consultation with
the attorney general of the United States, the director of the Federal Bureau
of Investigation and the administrator of the Drug Enforcement Administration,
shall publish a list of drug producing and trafficking entities. The secretary
may prohibit exports to such entities.
GEJDENSON: Mr. Chairman, what the amendment simply does is, it...
GILMAN: The gentleman is recognized for five minutes...
GEJDENSON: ... it takes away the kind of blanket restriction on an entire
nation and it gives the administration the ability to bend the export to
entities involved. And of course if the administration found that their police
departments or justice departments or other parts of the government, they could
obviously ban it from the entire country, from the entire government.
So, it seems to me though that it doesn't make sense if there are drug
activities going on in a country, to simply ban the entire country as a
potential purchasers of these -- encryption also. I think even your own
statement indicates what maybe the futility of some of these activities,
although I support the ability to take the action, that apparently as you
stated, people involved in drug transfers, and drug illicit trade, already
encrypt their conversations.
But I think the main issue here is that we don't simply use a sledge hammer and
block the entire country so if there is drug trafficking and I think most
people know goes on in Mexico, would we then sell nothing to any Mexican
company no matter how vigilant they were in using this for lawful manner.
BERMAN: Would the gentleman...
GILMAN: Mr. Berman. Mr. Bereuter.
BEREUTER: Thank you, Mr. Chairman. Our colleague from Connecticut has made an
interesting argument. He referred to countries, but the language is entities.
And entities is quite different than countries.
And I would guesses that any kind of list that would try to identify drug
producing and trafficking entities would change from day to day.
I think it's unworkable. I think we ought to remember what the chairman quoted
from General McCaffrey and I think that indeed as the chairman's amendment
suggests, we need to have the director of the FBI, the attorney general and the
administrator of the Drug Enforcement Administration consulted about this
encryption material and
other exports that relate to encryption that would go abroad.
I simply think that the gentleman has given us something that is not workable
in terms of definition of entities, but also the list will change from day to
day, and it's simply not a good guideline on which to base policy.
So, I urge a rejection of the gentleman's amendment and support for the
chairman's base amendment.
Thank you, Mr. Chairman.
GILMAN: Mr. Berman.
BERMAN: Just to continue on that point. Mr. Gilman's amendment does not ban
anything. It simply says before an export is approved to one of the -- for an
encryption product to a major drug transit country, or a major illicit drug
producing country, consult. That's all it says is consult. It doesn't
prohibit anything.
So, this is not prohibiting -- this amendment doesn't
prohibit exports to any country for any purpose, no matter what the entity is
that seeks the device, the encryption technology. It just says consult.
I think the...
GEJDENSON: Will the gentleman yield?
BERMAN: Yes.
GEJDENSON: I don't know that we have a difference here. I guess my question is
in reading lines -- the end of the second line --
"the secretary, before approving any export or re-export of encryption to any
major drug transit country" -- so...
BERMAN: Shall consult.
GEJDENSON: Before approving?
BERMAN: Well, it's better to consult before than after...
GEJDENSON: Right, but if to a country -- and so the only thing that my language
seeks to do and I would be happy to accept anybody else's language that they
believe does it better, is that if we decide there's drug traffic going on in a
certain country, but the particular
entity is an honest legal operation that we don't just ban the entire country
as a result of that.
BERMAN: But nothing here suggests...
GEJDENSON: Before approval...
BERMAN: ... banning it...
GEJDENSON: ... before approving.
BERMAN: First of all none of this has any meaning unless we make product review
meaningful because this is a bill that decontrols...
GEJDENSON: We're going to...
BERMAN: We will debate that later, but this amendment simply say, oh, we know
that X company wants to export to -- what a good -- Myanmar (ph) or Colombia --
this encryption technology to some entity there. Let's consult with the
attorney general and the FBI and the DEA to see if that entity is -- if that
entity is involved in drug trafficking and therefore...
GEJDENSON: No, it doesn't -- that's why my amendment seeks to do. It...
BERMAN: No, no, no...
(AUDIO GAP)
BERMAN: (OFF-MIKE) of the base bill. It just says:
Before you approve the export, before you approve...
GEJDENSON: (OFF-MIKE) the base bill or the amendment?
BERMAN: I mean...
GEJDENSON: The amendment.
BERMAN: ... the base amendment that you're seeking to amend. Consult before you
-- consult. What's the consultation about? It's about whether this is an
entity that's involved in drug trafficking, drug producing. That's what the
consultation will be about. It doesn't ban -- it doesn't tell you to ban
anything to the country, it doesn't even tell you to ban to the entity. It
just says consult so you'll know what you're doing before you approve the
license. And that's what -- I think that on its face it's...
GEJDENSON: I guess then let me ask you the flip side of the question. If you
already believe the existing amendment bans the export to the entity, not
blocking the whole country, if you look at it again, the amendment that I make
to Mr. Gilman's
amendment simply says do all this consultation, repeating that, and then the
secretary may prohibit the export to that entity.
BERMAN: Because, well, but -- and I come back and say, number one, we're not
talking about prohibitions in Chairman Gilman's amendment. Secondly, it may be
totally inappropriate to ban exports of encryption technology to the entire
country of Mexico, but maybe in Myanmar...
GEJDENSON: It may.
BERMAN: ... the entity wants to re-export to an entity that is involved in drug
trafficking. Or maybe drug trafficking in Burma is so pervasive that you want
to ban to the entire country. Why...
GEJDENSON: I agree with the gentleman...
BERMAN: OK.
GEJDENSON: ... on the desire that there may be a country that we want to ban
trade with the entire country on encryption. What I don't find is in the
language any reference to a case where you find a
country that the country may be great but there are bad entities.
BERMAN: But...
GILMAN: Gentleman's time has expired.
Mr. Manzullo.
MANZULLO: Thank you very much.
I represent what used to be the machine tool capital of the world, Rockford,
Illinois. That industry has been destroyed. It's been destroyed because of
the naivete of members of Congress who really believe that when something is
readily available that we can control it.
I mean, do we really think that the drug traffickers of the world use computers
to control their flow of drugs? I mean, it's a -- if it gets involved in
banking or something, we know what happened in Mexico when the sting was set up
and the Mexican bankers that were involved in the drug cleansing or in the
cleansing of drug dollars were caught here in the United States.
But I look at -- I look at the amendment offered by my esteemed chairman and
this is precisely what happened to the machine
tool industry. I mean, domestic consumption of machine tools are down 50
percent, exports have dried up, we can't get multi-access machines into a lot
of country where the Swiss and the French and the Italians and the Japanese
readily sell these machines. And when the machine tool industry dries up that
brought about the recession of 1981.
My -- the city I represent, Rockford, Illinois, led the nation in unemployment
at 27 percent. It was higher than unemployment during Depression. A city of
140,000 people lost 100 factories and 10,000 highly skilled jobs.
And, Mr. Chairman, those jobs never came back. They never came back because
into -- as the world went forward and as the economies improved the United
States imposed more and more restrictions on our own exports, because all the
things that we were stopping to export were readily available. And I...
GILMAN: Will the gentleman
yield?
MANZULLO: Yes, of course.
GILMAN: Are you advocating then that to those countries that are drug producing
countries we should allow encryption to be liberally supplied?
MANZULLO: Mr. Chairman, what your amendment attempts to do here is it attempts
to say that something that is readily available in the world -- we're not
talking about a rocket, we're not talking about a missile, we're not talking
about bombs, we're talking about software so people can communicate. And if
it's readily available everywhere it's almost the same as a hammer or machine
tools.
GILMAN: I don't think the gentleman was present at -- when Secretary Hamre said
to us at the prior briefing that it was not available in many foreign
countries, that while they allowed sales, they did restrict the security
aspects.
MANZULLO: Mr. (OFF-MIKE) was present in...
(UNKNOWN): The gentleman yield
for one moment?
MANZULLO: I was here present in 1993 when the NSC said, we are opposed to fiber
optic cables in Poland because we can't listen in to more than six telephone
conversations at one time. And it took a while for us to catch up...
(UNKNOWN): Would the gentleman yield?
MANZULLO: Yes, I would.
(UNKNOWN): I think we're working out language that Mr. Berman feels comfortable
with, Mr. Chairman, I think you would as well.
GILMAN: I haven't seen the language.
(UNKNOWN): I understand that, so we're getting it typed up. But to save the
committee's time, I know we have a lot of amendments, if we could go to the
next amendment so that your people get a chance to see the new language written
by Mr. Campbell.
(UNKNOWN): Would my friend yield before...
MANZULLO: Sure. That would clear this (OFF-MIKE)?
(UNKNOWN): Yes, just temporarily...
MANZULLO: OK.
(UNKNOWN): If my friend would yield before...
(UNKNOWN): No, I think it should be back here momentarily, but that would give
your legal -- is it here?
MANZULLO: Because I understand the intent of Chairman Gilman's amendment and I
understood the importance of the language...
BERMAN?: If my friend would yield, I just would like to remind my colleagues
that the chairman's amendment deals only with encryption and encryption comes
in a variety of capabilities. Of course, encryption is available everywhere,
it's just degree of sophistication. And if the administrative officials take
their job seriously and effectively pursue the controls or authority we're
giving them on a discretionary basis to consult at least, then the most
sophisticated technology will not necessarily flow. And I think that's
desirable end. Would the gentleman agree?
MANZULLO:
Well, I think it is but...
BERMAN?: It's not banning all encryption.
MANZULLO: ... but there's no time limit in this. This says the consultation is
necessary, they could just sit on it.
BERMAN?: But in fact it doesn't say approval, it says consultation. So if they
don't react...
MANZULLO: But that could be...
BERMAN?: ... or even if they react negatively, it doesn't take away the
decision. I thank the gentleman for yielding.
GILMAN: Mr. Rothman.
ROTHMAN: Thank you, Mr. Chairman. I want to briefly just speak in support of
the Gilman amendment but also address some concerns that I have about my
friend's, the ranking member's amendment. My concern is twofold, or they are
twofold.
Number one, it says: a list shall be published of drug producing and
trafficking entities. Now, I'm not
sure that we want to publish the names of every thug...
(UNKNOWN): (OFF-MIKE) yield?
ROTHMAN: Yes, sir.
GEJDENSON: I plan to withdraw the amendment. We have other language.
ROTHMAN: There's a reason why I hold the ranking member in such high esteem.
(LAUGHTER)
The other concern that I have or question really is why we are now providing
the secretary, presumably singlehandedly, with the ability to prohibit exports
to anybody when the Gilman amendment didn't give him or her that power.
So is that something that we want to do, give the secretary the power to
singlehandedly prohibit exports to any country or any entity in particular?
I'm not sure that that's the case. And perhaps we can rework this in private
or outside of the markup before it's concluded to address those concerns. But
I do have those concerns.
Thank you, Mr. Chairman.
GILMAN: Thank you, Mr. Rothman.
Gentleman has a revised amendment. Would the clerk please distribute the
amendment. And is the gentleman going to
withdraw his initial amendment?
GEJDENSON?: Yes, I ask unanimous consent to withdraw my amendment.
GILMAN: Your initial amendment is withdrawn. Clerk will distribute, clerk will
read the new amendment.
CLERK:
"This provision shall not authorize the denial of export of an encryption
product or the issuance of a specific export license for which such denial is
not otherwise appropriate solely because the country of destination is a major
drug transit country or a major illicit drug producing country."
GILMAN: Gentleman is recognized on his amendment.
GEJDENSON: I would yield to Mr. Campbell who is the author of the language.
CAMPBELL: Mr. Chairman, with the gentleman's permission.
GILMAN: Mr. Campbell.
CAMPBELL: The idea was to get at exactly the problem Mr. Gejdenson saw without
creating any broader loophole. So we take Mr. Gilman's text and all we
say is you don't have the invitation because of Mr. Gilman's text to bar
exports to an entire country just because there is maybe a drug problem with
the country. So I think it deals with the problem that Mr. Gejdenson correctly
observed but preserves the heart of Mr. Gilman's amendment. And with that I
yield back.
GILMAN: I thank the gentleman. Any further questions of further discussion?
I just would like to note for Mr. Gejdenson that we already have a provision in
the law that makes -- requires the president under section 490(h) of the
Foreign Assistance Act of 1961 as amended to determine which countries are
major illicit drug producing or drug transit countries, and that comes about at
least once a year in the latter part of each year. And the last (OFF-MIKE)
Afghanistan, a little bit of the Bahamas, Belize, Bolivia,
Brazil, Burma, Cambodia, China, Colombia, the Dominican Republic, Ecuador,
Guatemala, Haiti, Hong Kong, India, Jamaica, Laos, Mexico, Nigeria, Pakistan,
Panama, Paraguay, Peru, Taiwan, Thailand, Venezuela and Vietnam were recited
(ph) by the White House as being drug producing countries.
Any question on the Gejdenson amendment?
ROTHMAN: Mr. Chairman.
GILMAN: Mr. Rothman.
ROTHMAN: Yes, I have a question of is the Gejdenson amendment or the Campbell
amendment?
GILMAN: It's the Gejdenson amendment to the Gilman amendment.
ROTHMAN: Great. Yes, I have a question.
GILMAN: Mr. Rothman.
ROTHMAN: Yes, thank you. Is there anything in the -- in H.R. 850 which gives
-- which talks about the denial of export of an encryption product and which
provides criteria for the denial?
GEJDENSON: If the gentleman yield.
ROTHMAN: Yes, certainly.
GEJDENSON: In -- as I read lines -- the
end of line two through the end of the bill, it seems to at least provide the
opportunity to argue that before approving any export or re-export that that
could refer to an entire country if it's not for the language that Mr. Campbell
graciously provided us, it simply makes clear our desire to, yes, prevent this
technology from bad guys. But just because there may be bad guys in the
country it doesn't mean that every entity in that country.
ROTHMAN: May I just take back my time to ask the ranking member, my friend,
another question? You're referring to the Gilman amendment, line three, is
that it? Would the gentleman...
GEJDENSON: Yes.
ROTHMAN: And I with respect have some different...
GILMAN: Would the gentleman yield?
ROTHMAN: Just for...
GILMAN: Mr. Rothman?
ROTHMAN: Yes, certainly.
GILMAN: Please
understand that the Gejdenson amendment is an amendment to the Gilman
amendment.
ROTHMAN: OK. Thank you, Mr. Chairman. That clarifies it, because the I don't
read, with due respect, I don't read the Gilman amendment as providing any
authority to deny any export to anybody.
(UNKNOWN): Would the gentleman yield?
ROTHMAN: And so my question -- my concern is, first of all, you know, I'm not
comfortable voting on approving something that says that the mere fact that
something's going to be exported of a significant security nature to a country
that we deem to be a major drug transit country. We're not going to -- that's
not going to stop us or be a major hindrance. So it would be the sole -- it
can't be the sole hindrance.
I'm not sure I want to agree with that. And especially in light of the fact
that there's nothing in the Gilman amendment that addresses --
authorizes the denial of an export anywhere. So I with respect wonder if this
well worded and thoughtful amendment is necessary.
GILMAN: Well, Mr. Rothman, if you'll yield?
ROTHMAN: I certainly will.
GILMAN: If you'll note that this says: before approval of any export the
secretary shall consult with the attorney general, with the FBI and with the
DEA before approving a license. So it speaks for itself...
ROTHMAN: Reclaiming my time. Just to be blunt about it, Mr. Chairman, I read
it to say that this is consultation only. If it is more than consultation
would the chair please advise me if this is authority to deny.
GILMAN: It's my impression that it gives the secretary the right in approval to
deny it if after consultation she finds that there's a problem.
GILMAN: Mr. Berman.
BERMAN: Mr. Rothman is on to something: that this whole debate is academic and
meaningless, as are the provisions in the bill that pretend to ban exports to
terrorist countries and embargoed countries because in a world where you're
eliminating the export licensing system what license is there to approve or
deny?
I have a fix for that in a later amendment, and I -- if that later amendment
were to pass that would give meaning to this. And the reason I support the
Campbell amendment is, if the government of Mexico, which I believe was one of
the countries on the list that the chairman read, if their ministry of health,
an agency which has not been corrupted by drug kingpins, wants some encryption
technology to protect privacy of people it's dealing with, the fact -- simply
fact that it is in Mexico, a country that's on that list, should not be the
basis for the denial of a license which under its present terms they don't have
to get in the first place. That, I mean -- so I don't think -- I --
your point is right, but I think in anticipation hopefully of amendment to pass
later on it could become meaningful...
(UNKNOWN): Would the gentleman yield?
BERMAN: ... if you get what I mean.
(UNKNOWN): Would my friend yield?
BERMAN: Yes.
(UNKNOWN): Thanks a lot, Steve, (OFF-MIKE) your attention. The problem is we
don't have the underlying text of the AEPA (ph) and the Export Administration
Act in front of us, OK, but if we did, the International Emergency Export
Administration Act gives the president the authority, and then it's delegated
to the secretary of state, for foreign policy reasons to bar exports to
particular countries like we did to Iran when they took our hostages.
Now you have another regime dealing with the transport of things that are
weapons, that are dangerous to us, and then you have the dual-use subcomponent
of that second part.
The problem that our good friend the ranking minority member saw is that by
giving the secretary of
commerce an additional criterion to consider one possible interpretation, I
don't think likely but possible interpretation, is that the secretary of
commerce could move into that foreign policy regime and ban exports because the
country in question was an undesirable country. We have another regime that
does that, that's under the secretary of state, and I think it's wise to keep
the two separate.
So that being the basis, the worry that you have that maybe it would be
appropriate to ban exports to a particular country is taken care of by
additional legislation.
(UNKNOWN): Would the gentleman yield for a question?
(UNKNOWN): It's not my time.
(UNKNOWN): Will Mr. Berman yield?
BERMAN: Sure.
(UNKNOWN): I still wonder, if the chairman is telling us that this is giving
the secretary of commerce, that his, Mr. Gilman's amendment gives the secretary
of commerce the authority to deny an export to anybody for any reason, is that
something we want to do? When, according to my friend Mr. Campbell, foreign
policy and foreign affairs security concerns are all to be addressed in another
law.
CAMPBELL?: If the gentleman will consider to yield. If Mr. Berman will yield.
I think that's a fair point to which the proper answer is, by reason of the
amendment that Mr. Gejdenson took of mine there's no such risk anymore. In
other words, that this, because you cannot ban the export solely because it is
such a country, it is now simply going to be a factor to be considered.
(UNKNOWN): Well, then...
CAMPBELL?: But it doesn't change the underlying criteria.
(UNKNOWN): A question.
(UNKNOWN): Could I just...
(UNKNOWN): What other criteria can the secretary of commerce use to deny export
under the Gilman amendment if it's not that there are drug -- involved in
illicit drug producing? There's no other criteria set
forth. So then it would necessarily allow the -- it would prohibit the
commerce secretary from prohibiting any exports, prohibit him or her from
stopping any export of this technology to a drug producing country. How much
should we want...
BERMAN: Could I just reclaim my time?
GILMAN: Mr. Berman.
BERMAN: I think Mr. Rothman is right in a way. If you decontrolled everything
and you don't have separate authority -- let's say they want to export to the
chief drug kingpin in Mexico -- what's the authority under this bill to deny
the export? I don't think there is. I think we need a later -- we need an
amendment.
(UNKNOWN): Would the gentleman -- would the gentleman yield?
BERMAN: Yes.
(UNKNOWN): You can't do it simply because he happens to be in Mexico. You can
do it because he happens to be a kingpin.
BERMAN: Why? Why?
(UNKNOWN): I'll find it for you in a second, I'm
not as familiar with the bill, but the provisions dealing with the explicit
dangers, the categories for which export are not permitted. I will find...
BERMAN: I have not seen anything in this bill that leaves residual power in the
secretary to deny exports because of general dangers. If there is then I'm
much happier with this bill than I otherwise would be.
Where's the drugs?
(UNKNOWN): If the gentleman will yield.
BERMAN: There's nothing about drugs.
Yes.
(UNKNOWN): As I understand it, the amendment -- the underlying bill is the area
in which one would find that authority -- in other words, the Export
Administration Act -- and that would be under the dual-use side. I don't know
of any other.
BERMAN: I know...
(UNKNOWN): I'm taking your point, in other words.
BERMAN: I know of nothing in the Export Administration Act, which hasn't been
the law for nine years, but which has been
continued by the...
(UNKNOWN): (OFF-MIKE) but if you take my point that I first raised with Mr.
Rothman, if it's considered the foreign policy of the United States not to
export to a country as a country, that decision is made by the secretary of
state. The only other existing regime that we presently have is if it's a
potential dual-use or a military technology. That's what we're dealing with.
Now, Mr. Gilman's amendment would put in a new category, Mr. Rothman is right
to say that. And my amendment and Mr. Gejdenson's amendment to that says that
it is a consultation only. If we wanted to create an exception solely for a
foreign policy purpose that would still be vested in the law.
BERMAN: I (OFF-MIKE), I don't...
GILMAN: Mr. Berman.
BERMAN: I don't consider this a foreign policy purpose,
I consider this a law enforcement purpose. I -- and if the secretary of
commerce is in charge of dealing with sensitive technologies and where they're
to be exported and they're not on the munitions list, so it's not the secretary
of state's authority, then I can't think of a better place than the Export
Administration Act to have that authority. And I'm (OFF-MIKE) I don't know
where that authority exists to deal with this particular kind of technology
which at least theoretically could encrypt communications between drug kingpins
or whoever they communicate with.
But any event, I still don't object to your language.
GILMAN: If there are no further questions we'll now move on the amendment
before us.
MANZULLO: I had a (OFF-MIKE).
GILMAN: Mr. Manzullo.
MANZULLO: It would be to Mr. Campbell. I notice there's no timeframe
(OFF-MIKE).
GILMAN: What about the question, what
about the question of time?
MANZULLO: I mean, it asks for consultation, but what if no consultation comes?
Can the attorney general sue to stop the export because she needs three months,
six months, nine months, 12 months to be able to come to some type of
conclusion?
(UNKNOWN): If the gentleman will yield.
MANZULLO: Of course.
(UNKNOWN): Two points in the bill. There's a 15-day technical review, page 11
and page 8.
MANZULLO: But does that apply to the export of items? That's on page 8, items
not requiring licenses, is there...
(UNKNOWN): Right. And also page 11, computer hardware or software or computing
devices with encryption capabilities. In those two categories the secretary
has 15 days. Otherwise the Goodlatte bill creates an exemption and a specific
exemption where there is generally available technology or off-the-shelf
consumer product and there is no
time period to review. That would have to be -- that would have to be pursuant
to regulations that Commerce would have published.
If your question is how long would it take for Commerce to publish regulations
to implement the Goodlatte bill, there is no limit in the bill.
MANZULLO: I guess the problem here is that if every time someone in the United
States wishes to export software with encryption or an encryption program to
any of those countries listed on 490(h) of the Foreign Assistance Act, one of
those countries is China, that's 21 percent of the world's population. The
other country is India, that's 17 percent of the world's population. Another
one is Brazil.
I mean, there are so many countries in here, probably the percentage of
population on that list is at least 50 or 60 percent of everybody in the world.
So what that means is that whenever -- any time you want to send anything
encrypted to any country that's on that list it has to
go through this incredible review process. And there are 167 foreign
cryptographic products that use 128-bit encryption. I mean, it -- the reason
I'm asking the question really goes to the heart of trying to control
something.
Mr. Campbell, if you would just take a look at the -- look at the term
"encryption," what that means, on page 12, and you can see the intent of this bill, on line
21: Encryption means the scrambling of (OFF-MIKE) 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. You may end up applying that definition to
almost any software that's on the market.
CAMPBELL?: Would the gentleman yield?
MANZULLO: Yes.
CAMPBELL?: I think not, but I see why you're asking it.
But I think not because the underlying regime which the Goodlatte bill amends
requires the premise to be either a dual-use or a military -- dual use. If
it's a military it's over -- it's in the other department, it's in State. So
it has to have potential for a military application. That the limiting
construct to begin with.
Then what Goodlatte says is, if you're in this regime but you are encryption
and you're generally available, we're going to fast track you. And special
category within that under a 15-day review for the embedded technology that is
in some other hardware which cannot be opened up.
So given that the underlying premise isn't changed by Goodlatte -- and it'd be
certainly contrary to his wish to do so -- this does not create the opportunity
to block export that doesn't already exist. It has to be dual use before we're
into this regime
in the first place.
Does that help at all?
MANZULLO: Well, it does, but I, you know, I'm just sitting here trying to
figure out how is this going to work and I -- and I can understand Mr. Gilman's
amendment because we've worked together on a lot of anti-drug things and I know
where his heart is in it, but I don't know if by your amendment, Mr. Campbell,
that this is going to take -- I mean, what this'll do is the American
manufacturer will say, all right, I'll just set up shop somewhere in Asia or
Europe and I'll manufacture the product there and sell it.
CAMPBELL?: Well, if the gentleman will yield...
MANZULLO: And that's what we're trying to get around. But if you have this
provision in there I don't know that's going to help.
CAMPBELL?: If the gentleman will yield...
GILMAN: Gentleman's
time has expired.
Is there any further debate? If not, the question is now on the Gejdenson
amendment, second degree. As many as in favor signify by saying aye.
COMMITTEE MEMBERS: Aye.
GILMAN: As many as oppose say no.
COMMITTEE MEMBERS: No.
GILMAN: The ayes appear to have it. The ayes have it. The amendment is agreed
to.
(UNKNOWN): Question's on the Gilman amendment.
GILMAN: Question is now on the Gilman amendment as amended by the Gejdenson
amendment. All in favor signify usual manner.
COMMITTEE MEMBERS: Aye.
GILMAN: Opposed?
The ayes have it. The Gilman amendment's agreed to.
BERMAN: Mr. Chairman.
GILMAN: Mr. Berman.
BERMAN: I have an amendment at the desk.
GILMAN: The clerk will read the...
BERMAN: Amendment number one dealing with the definition of
"generally available."
GILMAN: Clerk will distribute the amendment. Clerk
will read the amendment.
CLERK: Amendment offered by Mr. Berman, page 13, strike line 16 through 23 and
redesignated -- and redesignate the succeeding subclauses accordingly. Page
14, line 18, strike
"and." Page 15, line...
BERMAN: Mr. Chairman, I ask unanimous consent the amendment be considered as
read.
GILMAN: Without objection, gentleman's recognized for five minutes on this
measure.
BERMAN: Mr. Campbell just said the premise of this whole issue is that
encryption technology is dual use technology and that's the basis for Commerce
regulating it.
And then, the bill before us, 850, seeks to decontrol encryption technology
when it's generally available. And then, the bill defines generally available.
And I ask the -- just to take a look at the bill -- as soon as I can find it,
I'll look at it too. To the definition of
generally available, which is on page 13, page 13 and you look under --
"the term generally available means in the case of computer hardware or computer
software, including computer hardware, computer software with encryption
capabilities, computer hardware, computer software that is distributed through
the Internet".
In other words, if it's distributed through the Internet, it's generally
available and therefore it's decontrolled. But it is very possible to
distribute through the Internet without it being generally available in the
common sense meaning of that term. Distribution that in fact is controlled by
using encryption, in other words, encrypting distribution of encryption
technology. And is distributed through the Internet only through specific
users within the United States even though no controls are legally required,
but they are encrypting it because they don't want other people to get that
encryption
technology.
Under this bill, becomes generally available. So if something is between the
United States using the Internet, the product would now be considered generally
available and could be exported without any controls. Any encrypted e-mail
distribution or other technologically controlled distribution that uses the
Internet fits into this category.
A business using a tightly controlled, licensed, strong encryption product
lawfully distributes that product to its branch offices via encrypted
transmission, such as e-mail in a manner consistent with their license. That
makes it now generally available and it mandates that this technology be
decontrolled.
What about when the United States military uses the Internet in a secure manner
to distribute strong encryption product to its command? Is that product,
therefore, to be considered generally available so that the manufacturer can
freely distribute it? Does someone's illegal distribution of a product through
the
Internet thereafter make it legal for the next person to come along and export
the product without restrictions?
Mr. Chairman, it seems to me that the inadvertent result of that provision is
to cause an absurd result. My amendment would condition the distribution on
the Internet by saying it has to be offered for sale, license, or transfer to
any person without restriction whether or not for consideration. Taking the
exact same language as number two in the bill and modifying
"distributed through the Internet" by that language.
And then, you have something which makes the generally available definition
somewhat more coherent. And I'd ask, Mr. Chairman, if the Commerce Department
could just come up and indicate if they think my reading of this is correct.
That a limited distribution...
(UNKNOWN): Will the gentleman yield?
BERMAN: Sure.
(UNKNOWN): My question would be...
BERMAN: Is there a Commerce Department...
(UNKNOWN): ... if a
product was generally sold in the country, on a store shelf, would your
amendment prevent that from being sold?
BERMAN: If it -- no. No, if it's offered for sale, license or transfer to any
person without restriction, it's not -- I'm not seeking to declare that not
generally available.
(UNKNOWN): Now, let me ask you this. Putting aside the language -- of a
corporation or the CIA sending stuff back and forth on the Internet that's
theirs, if it is generally available in the Internet, as most people have come
to use that. And we would be happy to work on language to refine that to say
that not necessarily a connected institution transmitting its own privileged
product. But generally available between Internet users, not in the same
corporation, not part of an intelligence agency. You're not trying to get at
that, are you?
BERMAN: That's exactly what I've
done. I said, if it's generally available on the Internet, on the store
shelves, anywhere else, in other words, if it's offered for sale, license or
transfer, transfer generally available on the Internet, with -- for money or
not for money, if they can...
(UNKNOWN): So, you can download it from a company in Osloten(ph), Germany...
BERMAN: Then, it's still generally available.
(UNKNOWN): Right.
BERMAN: But the mere fact that it's -- remember these are (OFF- MIKE), one, two
and three are (OFF-MIKE). Distributed through the Internet to two branch
offices. Under the way this bill is written makes it generally available.
That's, that is an absurd result. And...
(UNKNOWN): Well, it's clearly a result that nobody wants. Let me just check on
the language.
(UNKNOWN): And my amendment will solve the problem and
still keep what you've described as generally available.
SHERMAN: Will the gentleman yield?
BERMAN: I'd be happy to.
SHERMAN: You pointed out why the material at page 13, lines 14 and 15, might be
over broad. And you focused our attention on the words
"distributed through the Internet"...
GEJDENSON: Will the gentleman suspend for one moment? And only because I think
we're reaching agreement on some of the language, on a word issue, not a
substance issue. And then you can ask Howard -- Howard, do you want to...
BERMAN: All right, OK, Mr. Chairman.
GILMAN: Mr. Berman.
BERMAN: By unanimous consent, I would like to just change my amendment that
strikes in line 16 through 23.
GILMAN: Which line are you changing in your amendment?
BERMAN: Page 15...
GILMAN: Refer to your amendment
first. What are you changing?
BERMAN: I want to eliminate that striking, sir. So, we leave that paragraph 16
through 23, where it is. But still insert it at the very end of the provision
so it limits the distribution on the Internet just to items which are offered
for sale without restriction.
CAMPBELL (?): Will the gentleman just give us a second, I think we're all right
on this.
GILMAN: Now, would you clarify? You're changing line one to go at the end of
this amendment?
(UNKNOWN): Would the gentleman yield for a second?
BERMAN: Right, let me just respond to the chair.
GILMAN: Please explain again.
BERMAN: Yes.
GILMAN: Tell us what you're amending.
BERMAN: I guess some people would like to see that paragraph in both places.
And so, I say, if they would like to see it
in both places, great. It's -- but what I want to make sure is that
"distributed through the Internet" is modified by
"offered for sale, license, or transfer to any person without restriction".
GILMAN: All right, we understand your intent. Now, tell us how you're amending
your amendment.
BERMAN: I am sticking back in the paragraph I deleted, and which I had put at
the end, so it is both at the end and where it is now. Those words...
GILMAN: So, spell it out by referring to the lines and what position.
BERMAN: All right. In other words, I don't -- all I do is change my amendment
not to strike lines 16 through 23. I leave lines 16, so remove lines one and
two of my amendment. That's...
GILMAN: Remove
lines one and two of the amendment?
BERMAN: Yes.
GILMAN: Is there any objection to the gentleman's proposal?
(UNKNOWN): We're reserving the right to object.
CAMPBELL: We're reserving the right to object, sir.
GILMAN: Please set forth your reservation, Mr. Campbell.
CAMPBELL: Since you wanted the words to be identical, you used the word
"distribution" when you meant the word
"approval". Look at your text, Howard. And it makes no sense. It should read sale on
approval, and your text is sale on distribution. That's just a typo, but since
you're...
BERMAN: I don't see the word sale. Oh, electronic distribution -- sale on
distribution, what does that mean?
CAMPBELL: Yes.
BERMAN: What does that mean?
CAMPBELL: That's exactly -- it's a typo.
(LAUGHTER)
What you meant to say was sale on approval, because that's the text of the
underlying base bill. So, as long as
you're getting -- you have this.
BERMAN: I think you're right.
CAMPBELL: By golly.
BERMAN: Even a stop clock...
CAMPBELL: At the right time, you may want unanimous consent...
GILMAN: What is your proposal -- any further proposed amendment?
BERMAN: Yes, I would ask unanimous consent on, to change
"sale on distribution" to
"sale on approval".
(UNKNOWN): Line 12.
GILMAN: You're referring to line 12?
BERMAN: Yes, the first word -- the last word on 11 and 12.
GILMAN: Do you want...
BERMAN: Oh that's right, just line 12,
"on approval"; instead of
"on distribution".
GILMAN:
"On approval" is inserted instead of
"on distribution"?
BERMAN: There was a typographical...
GILMAN: Is there objection to the gentleman's proposed amendment?
MANZULLO: Reserving the right to object. I just have a question on it.
GILMAN:
Mr. Manzullo, on his reservation.
MANZULLO: What does that mean at the end, for sale on approval? Is that a -- is
that a disjunctive as to every thing that's above that?
BERMAN: Well, number one it is...
MANZULLO: On those areas that need...
BERMAN: Number one, it means to keep whatever Mr. Goodlatte (ph) meant when he
put it in the bill originally.
(UNKNOWN): Would the gentleman yield?
MANZULLO: Yes.
BERMAN: If I was experienced in matters of commerce, I wouldn't be at this job.
(UNKNOWN): It's a term of art to which you would be very familiar in your
previous practice as a commercial attorney. It's the sale, or it's a sale on
approval, it isn't an actual final sale if the sale, if the purchaser has the
right to return it. No, it's technically a sale on approval. So, that's why
Bob, in his draft
originally put in sale, phone order transaction, or sale on approval just to
cover the world.
And then, Howard Berman inadvertently made an error in picking it up, he said
"sale on distribution" rather than
"sale on approval". So, it's the same commercial motion of a sale versus sale on approval, that
you would have under the Uniform Commercial Code.
MANZULLO: I would presume that this language that tightens things up and would
be acceptable to the authors of the bill then.
GILMAN: Mr. Sherman.
SHERMAN: Reserving the right to object. I've been asked by Mr. Gejdenson to
suspend just when I was going to direct Mr. Berman to page 13, lines 14 and 15
of the bill. In his speech supporting his amendment, he talked about how
simply the fact that software was distributed through the Internet did not mean
that it was necessarily widely available.
One could have a specialty product and say well, we won't bother to mail it to
you in Cleveland. We'll just send it encrypted in secret straight over the
Internet.
Yet, as I understand his amendment, he does not eliminate the offending
language, lines 14 and 15 on page 13.
BERMAN: That's right, I don't, for a reason.
SHERMAN: OK. How do you restrict what you regarded as the excessively broad
scope of those words?
BERMAN: In effect, what I'm saying is, it has to be distributed through the
Internet and offered for sale, license, or transfer to any person. See, I-1,
I-2 and I-3 are ours.
SHERMAN: OK.
BERMAN: And by putting two at the end, I condition one, two and three by the
words of two. So, yes, items distributed through the Internet are generally
available, but
only if they are offered for sale, license or transfer to any person without
restriction.
FALEOMAVAEGA?: Mr. Sherman, would you yield for a question to Mr. Berman?
SHERMAN: I would be happy to although he's certainly illuminated my
understanding of his amendment. Yes.
FALEOMAVAEGA?: Thank you.
A question to Mr. Berman. The phrase
"offered for transfer to any person without restriction".
"Offered for transfer to any person without restriction over the Internet". If one person on the Internet decides to transfer the most sophisticated
encryption program for free, to every bad guy and gal on the universe, they are
covered under this, right?
BERMAN: Yes, if it's generally available, unfortunately, it's...
FALEOMAVAEGA?: So, how have we narrowed this?
BERMAN: Oh, we've narrowed it because legitimate distributions through the
Internet to selected parties, who are licensed to get the product, and for whom
the
technology is being transferred in an encrypted fashion...
FALEOMAVAEGA?: Does it say -- excuse me, does it say to licensed parties or
just offered for transfer to any person without restriction?
BERMAN: It's without restriction.
FALEOMAVAEGA?: So, how does that narrow this? I thought it -- I think it makes
it worse.
BERMAN: Because all -- my amendment is not a cure for everything in this bill.
It's a cure for the problem of distributions, limited distributions over the
Internet, automatically making a product generally available.
FALEOMAVAEGA?: Would the gentleman consider removing that phrase
"transfer to any person", or transfer, leave it to sale or license?
BERMAN: Well, I...
FALEOMAVAEGA?: Although obviously, you can sell for $1.
BERMAN: Can I make a suggestion? Let's -- I think we've
got some people going along with this amendment who might not go along with
yours. I'd go along with yours, but I'm not sure others would. So, can we make
yours a separate amendment and at least pocket this one? I'm just not sure
what this accomplishes.
This accomplishes keeping controls on encryption technology that is transferred
to limited parties in an encrypted fashion on the Internet. The words
"generally available" don't apply in that situation. This amendment, the language of the bill seeks
to use the term
"generally available" to apply to something which isn't generally available. And I'm trying to get
away from that.
FALEOMAVAEGA?: Well, I'd consider an amendment on the order of a bonafide sale
or license. Thank you.
BERMAN: All right.
(UNKNOWN): Sale.
BERMAN: Yes, but advise me in one
thing. When you transfer without restriction, that means there is no license
limitation. But I don't think that's the point you're making.
Basically, mine just deals with the weakness of number one.
(UNKNOWN): Thank you.
GILMAN: The gentleman's time has expired.
GILMAN: Are there objections to the unanimous consent by the gentleman from
California, Mr. Berman, on, to modify his amendment by striking lines one and
two; line 12, striking
"on distribution" and adding the words
"on approval"?
Are there any objections? If not, so ordered, the amendment is agreed to --
the revisions are agreed to.
On the gentleman's amendment. All in favor signify in the usual manner.
MEMBERS: Aye.
GILMAN: Opposed?
The gentleman's amendment is carried.
We will now proceed to Gilman amendment number two. The clerk will read the
amendment. The clerk will distribute the amendment.
CLERK: Amendment offered by Mr.
Gilman. Page 17, insert the following after line 22 and redesignate succeeding
paragraphs accordingly. Three, other export controls. Any encryption product
is subject to export controls for any reason other than the...
GILMAN: The amendment is considered as having been read. On the amendment,
this amendment would ensure that the secretary continues to have the authority
to control exports for reasons other than encryption.
GILMAN: For example, a high performance computer with encryption capabilities
now controlled from many destinations.
May we have order please.
For example, a high performance computer with encryption capabilities now
controlled from many destinations would continue to be controlled. If Congress
wants to implement the recommendations of the Cox-Dicks report, in regards to
controls on the exports of such computers to China, then we must adopt this
amendment which will ensure that national security considerations are going to
be fully taken into account in the
end use of such products.
A commercial satellite with similar capabilities would continue to be
controlled. Absent this provision, the SAFE Act would have the perverse effect
of decontrolling sensitive technology such as commercial satellites with
encryption capabilities, which recently put back under the control of the State
Department to the express reason of ensuring greater control and end use of
monitoring.
The amendment's adoption would ensure that the bill does not decontrol broad
categories of products within encryption capabilities in such a way that would
encourage companies to design in some form of encryption capability for
sensitive or dual use items such as to design out any form of export control.
In light of the administration's July 1 determination, that widespread
commercial availability makes computers with a performance of 6,500
MTOPS or MTOPS or less, uncontrollable. The definition of a high performance computer has
been pegged to this operating level and is made effective
in February of next year to ensure that Congress has ample time to review any
changes needed in the present control and monitoring regimes effecting such
computers.
So in closing, let me say, and I'm certain that my colleagues would agree that
we should allow the secretary to prohibit the export of encryption products.
If there is a credible evidence that they will be used for illegal activities
including the sexual exploitation of children. The amendment would address
this concern as well.
Anyone seeking recognition?
Mr. Gejdenson.
GEJDENSON: Mr. Chairman, it is my understanding that we've worked out an
agreement to come up with language at the end of this amendment which would
simply maintain whatever the approved status of the computers are and not put
in the statute what is obviously an evolving standard as technology moves.
So, it is my understanding we're going to work out language acceptable to all
sides. Is that correct, Mr. Chairman.
GILMAN: Well, Mr. Gejdenson, it's not my intention to limit on a permanent
basis the definition of a high performance computer. Over the next several
days, we'll work with the ranking minority member to clarify how the proposed
definition of 6,500
MTOPS could be adjusted in the future by government regulation.
GEJDENSON: With that assurance, I have no objection, Mr. Chairman.
GILMAN: Mr. Campbell.
CAMPBELL: I have more of a problem with it. Without intent, I'm sure, you
nevertheless can't deny that you put into statute as of February 1, 2000, a
definition of high performance computer and no regulation can subsequently
change that, that I know of. So, I could not agree to this until I know the
compromise and I would put this a little bit more pointedly. I don't
see why you need the last sentence. In other words, you accomplish everything
you need if you end your amendment at line eight and then just drop that last
sentence.
It seems to me then we don't run that risk at all and I don't have to worry
about what the subsequent phraseology will be. But as presently drafted, this
is remarkable, because no subsequent regulation could ever change that
definition. It would take a law to change it.
Thus, if I might, Mr. Chairman, I would ask you to consider striking the last
sentence. And if that's not...
(UNKNOWN): Would the gentleman yield?
CAMPBELL: I'd be pleased to yield.
(UNKNOWN): I'd certainly be supportive of that. I think that our goal here is
the same. I think the chairman's goal and our goals are not to put into
statute a standard that is going to change as time changes. And I think we all
recognize that the process that is established, gives Congress time to review
these. And Mr.
Berman apparently agrees the last line is not necessary as well. If we could
do this now, I think again, it would expedite our ability to conclude this
work.
CAMPBELL: Well, I might reclaim my time.
Mr. Chairman, on my time, I would make the amendment unless you are willing
to...
GILMAN: Mr. Campbell.
CAMPBELL: Thanks, Mr. Chairman.
Unless you're willing to do it on your own, as the unanimous consent, I would
on my time, make an amendment to your amendment to strike the last sentence.
BEREUTER: Mr. Campbell, would you yield?
CAMPBELL: I'd be pleased to yield.
GILMAN: Mr. Bereuter.
BEREUTER: I thank you.
Would you, as a part of your suggestion then incorporate some existing
definition under law of high performance computer to which you would refer?
Because that would...
CAMPBELL: If the gentleman would -- well, I'm the one with the time. By all
means, but
I would rather just do it as we presently do, namely, the secretary of commerce
has this authority to specify items of dual use. She or he specifies the high
speed computer as a dual use. We don't need any further statute to give the
secretary of commerce that authority. The secretary possesses that.
So, it wouldn't be harmful to put it in, saying that on Monday, export controls
applicable for dual use shall be high performance computer. But that is
surplus, so it's just not...
BEREUTER: Within the meaning of existing law, so the secretary has an
opportunity to move the
MTOPS up as technology advances.
CAMPBELL: Amen. It's a -- I understand that that's already existing authority.
But what I'm hoping is just to drop that last sentence, which I think you
would agree, most would agree is a straight jacket. And if you would like, an
affirmative amendment to put
in authority for the commerce secretary to control high performance computers
under the general dual use.
BEREUTER: I'm not asking for it all. All I'm asking for is a reference to the
definition of high computers as it relates to this section and I think that
would be simple to add.
CAMPBELL: I'd be delighted to look at any language. At the moment, my request
is to simply strike the last sentence.
BEREUTER: I...
CAMPBELL: If I still have the time, I'll yield.
Who wants time? It's still my time. Mr. Berman.
GILMAN: Mr. Berman.
BERMAN: You say the last sentence is remarkable. I'm sure you would also
agree, it is remarkable to decontrol the highest performance super computers
simply because they have embedded encryption. In other words, the bill was
also quite remarkable.
What I really wanted to...
CAMPBELL: This appears to be a
not a good faith intervention.
(LAUGHTER)
BERMAN: No, it's going to turn into one in a second.
CAMPBELL: I may not continue. I may not continue to yield.
BERMAN: Your point here is that striking the last line, still leaves the
secretary of commerce with the existing power under EAA (ph) as extended by
IEPA (ph) to control high performance super computers. And whatever those
controls are, are maintained at any given time.
CAMPBELL: That is my intent, sir.
BERMAN: I think it makes sense.
GILMAN: All right, I will be pleased to accept the amendment.
CAMPBELL: Thank you, Mr. Chairman.
MANZULLO: I have a question.
GILMAN: Mr. Manzullo.
MANZULLO: What if there is a conflict between a country -- if there is a
conflict with a country being listed on that section 490-A, and being a tier three country? A country not being listed on that 490-A,
on the first government amendment, as a country not involved in drugs, but
then, being listed as tier three.
BERMAN: Well, are you referring to this amendment or to the prior amendment?
MANZULLO: I am referring to both of them. Because that's where controls go
according to tier one, two, three and 3-8 (ph) countries. And what if -- does
this mean then, that you can't sell, or you can't export encrypted software to
a country that may be on a -- a tier three country, unless it's embedded in
the...
GILMAN: I'm going to ask Mr. Reckard (ph) to respond to your inquiries.
Identify yourself please.
RECKARD (ph): I'm Frank Reckard (ph), the majority staffer.
Mr. Manzullo, could you repeat your question? You're asking whether there is
an
overlap in the controls?
MANZULLO: I have been advised by the author of the bill that my question is no
longer relevant. So, I would withdraw it.
RECKARD (ph): OK.
GILMAN: The question is withdrawn.
All in favor of the amendment, as amended, signify in the usual manner.
MEMBERS: Aye.
GILMAN: Opposed?
The amendment is carried.
Mr. Berman.
BERMAN: I have an amendment at the desk, Mr. Chairman, number two.
Will the clerk report the amendment?
CLERK: Amendment offered by Mr. Berman. Page eight, line 20, strike 15 day
technical review by the secretary and insert technical...
BERMAN: Without objection, the amendment will be considered as read and open
for amendment.
GILMAN: The gentleman is recognized to speak on behalf of his amendment.
BERMAN: Mr. Chairman.
GILMAN?: I was recognizing Mr. Berman first to
speak on his amendment.
Mr. Berman, you are recognized.
BERMAN: Mr. Chairman, we touched on this in the discussion of Mr. Gilman's
amendment on the countries trafficking in drugs. The structure of this bill is
such that it leaves a 15 day, one-time, limited 15 day technical review to
determine that the product works as represented before unleashing the product
on the world.
In other words, it's a review somewhat like a consumer magazine review
assessing that the product works as advertised. That's the only control left
on encryption technology of any strength.
Then, the bill pretends to try and say no encryption technology to terrorists
countries. It pretends to try and say no encryption technology to military end
users. It pretends to say no encryption technology to embargoed countries.
And with the addition of the Gilman amendment, it pretends to
say no encryption technology to drug kingpins in drug distributing countries,
or whatever the name of that list is.
This amendment would give that 15 day review meaning by giving the Commerce
Department the authority to get information from the manufacturer that it needs
to decide if it needs to restrict an export in those extreme situations. If
the Commerce Department can't find out where the product is going, how can they
say, you can't send it because it's headed to a terrorist country. You can't
send it because it's headed to a drug kingpin. You can't send it because it's
going to the Iraqi military. You have to have some process to track and have
reporting on where this goes. Or otherwise, these words are meaningless.
You know, Mr. Manzullo likes to talk about I was here in 1993 when they sought
to block a certain kind of optic fibers from being exported and how silly that
was. And
I was here in the 1980s when we sought to block embedded micro-processors which
were found in toys sold at Toys R Us from going to Russia and that was absurd.
We've got a lot of absurd controls.
But I also remember that people around here clamored to get satellite
transferred to the Commerce Department so they could be licensed when they were
for communications purposes and not military purposes. And then all of a
sudden, whoops, whoops, we sent those satellite. We approved the license to go
to China. Let's take them back and put them on to the State Department list.
Mistakes have been made both ways. But you've got to give this technical
review some meaning. It is -- it should not be just to see if the product is
what it is represented to be. It should be a chance to determine if it's going
to one of the designated people that we say in this bill we don't want it to go
to. There should be consultations.
Commerce is not always the person, the agency right to judge. There should be
consultations with the CIA, the National Security Agency, the Department of
Defense, the Attorney General, the State Department. And the review should be
30 days so it can be done right.
It's still a very quick review, but now it can be a meaningful review. It can
give meaning to all these other provisions that we're pretending to support in
the base bill, as amended.
So, I would urge the amendment's adoption.
GEJDENSON: Mr. Chairman.
CHAIR (?): The gentleman from Connecticut.
GEJDENSON: I have a substitute amendment to Mr. Berman's amendment.
CHAIR (?): The clerk will read the substitute offered by the gentleman from
Connecticut.
CLERK: Amendment offered by Mr. Gejdenson. Page eight, line 20, strike 15 day
technical review by the secretary and insert technical review
by the secretary which shall be completed not later than 30 days after
submission of a report for technical review.
Page 11, lines 19 and 20 strike 15 day technical review by the secretary and
insert technical review by the secretary which shall be completed not later
than 30 days after submission of a report for technical review.
CHAIR (?): Thank you.
The gentleman is recognized for five minutes on behalf of his substitute.
GEJDENSON: Thank you, Mr. Chairman.
I take my friend Mr. Berman at his word that he believes the 30 days is
necessary. And I frankly...
BERMAN: Well, why don't you take me at my word on the other things too?
GEJDENSON: Well, because the gentleman -- wait, I am taking him at his word in
the other parts of the amendment and they are somewhat troubling.
That he wants the 30
days and he thinks that that's an appropriate amount of time. And I can
certainly live with the 30 days. Where I cannot support the rest of his
amendment, is that reading his amendment, it would basically give the president
through IEPA (ph), the ability to circumvent the entire legislation. That
basically, the president could create any restrictions he wants and as long as
there is no EAA (ph), basically, the president could take any actions he wanted
on these issues without any restrictions.
And so, if you want to have the basic tenet of the bill, which I think has
broad support in this committee and broad support in the Congress, it makes
good sense for national security and economic points of view. The 30 day is an
amendment that I take and is acceptable.
The rest of the language, however, adds a situation where basically it guts the
entire bill. So, if you vote for the underlying Berman language, we end
up negating the entire legislation.
UNKNOWN MALE: Would the gentleman yield?
GEJDENSON: I'd be happy to yield.
UNKNOWN MALE: Is the gentleman saying that the review period is not limited
because of potential for action under IEPA (ph)? That there is no time certain
because of the president's IEPA (ph) powers?
GEJDENSON: No, I'm not saying (OFF MIKE). No. What my point is, is that what
-- the argument here that you need 15 additional days is not troubling. But
the language, as it exist in the rest of the bill, by taking
"but only" out, creates the problem.
CHAIR (?): Thank you.
BERMAN: Mr. Chairman.
CHAIR (?): The gentleman from California, Mr. Berman, is recognized for five
minutes.
BERMAN: Well what my very good friend, the ranking member of the committee -- a
man with whom I hardly ever disagree -- is saying, is I'm willing to go from a
15 day meaningless review to a
30 day meaningless review.
GEJDENSON: Yield -- I just want to say that the adjective is the gentleman's
from California; it is not the gentleman from Connecticut's.
BERMAN: But the reality is, a review which doesn't let you know who the end
users are, that doesn't deal with what if the product is subsequently modified.
That doesn't deal with any of the issues you'd want them to look at on this
one time only basis, is not a review. And it -- the gentleman's argument
essentially says, we've the president of the United States on one hand, and
we've got the terrorists countries, the embargoed countries, the drug-producing
countries, and the military end users of potential enemies of ours on the other
hand, I don't trust the president.
BERMAN: And I say, give some meaning to the language that we all claim to
support on military end users, embargoed countries by having a
real technical review. Thirty days, 30 working days -- by the way, your
amendment you don't even give me the full 30 working days for the meaningless
review. You only give me 30 days.
But the 30 working days is a short period of time in government work that lets
the companies get their decisions quickly. It is not a cumbersome traditional
licensing...
(UNKNOWN): Would the gentleman yield?
BERMAN: ... but it's a meaningful review with this amendment. I would rather
leave it -- I would rather have a 15 day meaningful review than a 30 day
meaningless review.
If you're going to take one part of the amendment, I would rather have you take
the part that allows the government to look at things like potential end users
than to simply lengthen the time for your review, which is just
simply to find out whether the product does what it says it's going to do.
I yield to the gentleman.
(UNKNOWN): Thank you. I want to applaud the gentleman for his ability to
operate in a manner that tries to prejudge the process that's in the underlying
bill. But the real debate here is whether or not we're going to take a look at
issues of general availability dealing with the software. And then, as a
separate consideration, taking a look at criminals, drug lords and bad
countries on providing technology.
So, if the gentleman is against the underlying bill, I understand that. But to
argue this amendment simply provides structure is disingenuous. What it
basically does is undermines the entire piece of legislations leaving the
existing law.
And what we're arguing, those who support the legislation, as I understand the
gentleman from California doesn't, is we need a new process for this because
the present process simply
doesn't work.
BERMAN: I do support substantial decontrol of encryption technology.
Just reclaiming my time. I ask unanimous consent, if it's all right, to just
have the Commerce Department respond to the question of what they can do under
the bill's technical review versus what they can do under my technical review?
So, you don't have to take either one of our words for it. Let's give the
Commerce Department, just looking at the language, describe, what the 15 day
technical review is.
GILMAN: Is there an objection?
The Commerce Department will approach the table if anyone is representing them
to respond to Mr. Berman.
Under Secretary Reich (ph).
ROHRABACHER: While Mr. Reich (ph) is...
GILMAN: I ask unanimous consent, the gentleman's time may be extended so they
have a complete answer.
BERMAN: Thank you, Mr. Chairman.
And this is the same Secretary Reinsch (ph)
who is so involved in the decontrol of computers in the last couple of weeks.
ROHRABACHER: Reserving my right to object so I can make one point here.
GILMAN: We'll take that as commentary. The gentleman reserves the right to
object.
(UNKNOWN): When we're talking about meaningless and something else -- meaning
or meaningless. As far as I'm concerned, I've been listening to this debate,
and what is meaningless is to try to regulate this type of behavior or this
type of product. When it's readily available -- when it's available overseas.
And it is meaningless to me, to suggest that we're going to keep it out of the
hands of terrorists or drug lords who have got hundreds of millions of dollars
available to them in capital. As if they're not going to have buyers in some
other country.
Trying to give the America people the idea that we're going to be protected by
a 15 day review after it's
already determined that this is available overseas is meaningless. So, with
that I (OFF MIKE)...
ROHRABACHER: Did the gentleman attend the National Security Agency briefings on
the subject?
(UNKNOWN): You know, I sat and listened to it. And having worked in the White
House I heard the same sort of gobbledygook, I used to hear at the White House.
So, I didn't sit through that.
ROHRABACHER: That was Ronald Reagan's White House?
(UNKNOWN): Yes, but it wasn't Ronald Reagan's bureaucracy, I'll tell you that
much.
GILMAN: Will the gentleman withdraw his reservation?
ROHRABACHER: I withdraw my reservation.
GILMAN: Without objection, the gentleman's time will be extended three minutes.
And you may address questions to Under Secretary Reich (ph).
BERMAN: Well, Secretary Reinsch (ph), thank you for being here. I just -- under
the bill's existing technical
review, is the Commerce Department authorized to find out where the
manufacturer intends to send it? Tell us what this review is as prescribed in
the bill and how the amendment would affect that, if you would.
REINSCH (PH): Thank you, Mr. Berman.
For the record, I am William Reinsch (ph), I am the undersecretary of commerce
for export administration.
Let me also thank Mr. Rohrabacher for his intervention. It gave me time to
read the amendment and I appreciate that. The intervention gave me time to
read the amendment. I won't comment on the substance of the intervention.
(LAUGHTER)
The bill, as written, permits the Commerce Department in its technical review
to conduct what we would call a classification to determine the technical
nature of the product. We would examine the product and essentially determine
whether or not it is what the exporter says it is. Is it 128 bits, is it 56
bits, how does it work? The things the manufacturer warrants to
us we would determine whether or not they were accurate. In other words, it is
an examination of the product and nothing else.
Under your amendment, your amendment would permit us to examine other aspects
of the proposed export beyond the technical nature of the product, including
its destination both in terms of end user and location. And the other features
that you list on the second page of your amendment, quantity, characteristics
and capabilities beyond the technical aspects of how the product works.
So, the effect of your amendment would be to permit a broader review of the
product than that which the bill permits us to undertake.
BERMAN: One follow up question, if I may. Would you under this, under the bill
as written, how -- what's the process by which the secretary of commerce could
stop exports to Iraq, Iran, Libya, Cuba and other countries on the terrorists
lists, other countries that are embargoed, or to the military end users
say, in China.
REINSCH: Well, under the bill, as I think I testified, we don't believe there
is a meaningful provision in the bill, as originally written that would permit
us to do that. Our biggest problem with the bill has been the substantial
evidence test that is imposed in the section that relates to those countries
that we don't believe would permit us to make a judgment except in a small
number of cases.
Clearly, at the same time, when products come in, if we don't have an
opportunity either because of the breadth of the review that we conduct or the
relatively short period of time that we have to conduct it, to really find out
everything we need to know about the product and perhaps to have a conversation
with the manufacturer about what his intentions are with respect to the
product, it would also make it much harder for us to control it to the
destinations you described.
BERMAN: Thank you, Mr. Chairman.
GILMAN: Thank you, Mr. Berman.
Mr. Gejdenson.
GEJDENSON: Yes. It's always nice to see you here.
REINSCH: Thank you, Mr. Gejdenson.
GEJDENSON: Is there a DAA at the moment?
REINSCH: No, sir, but the Senate is working on it.
GEJDENSON: And is the president -- is the president presently operating under
IEPA (ph)?
REIMSCH: Yes, sir.
GEJDENSON: Thank you.
BERMAN: Would the gentleman yield?
GILMAN: Mr. Berman.
BERMAN: And is IEPA (ph) the simple promulgation of the Export Administration
Act as once in effect plus any subsequent regulatory changes to modify it?
GILMAN: Mr. Gejdenson.
REINSCH: What the president has done since the act expired in 1994 was to
declare an international economic emergency under IEPA (ph) and reimpose by
executive order the provisions of the Export Administration Act as it existed
at that time. And so, we continued to implement the act as if it were in
effect.
GILMAN: Mr. Menendez.
MENENDEZ: Thank you, Mr. Chairman.
I want to speak in favor of Mr. Gejdenson's substitute because, to the extent
that Mr. Berman suggests that the appropriate time frame is those 30 days, I
certainly am on board with him on that.
But Mr. Berman's amendment is far beyond the question of time. In the second
part of his amendment where he strikes the
"but only", in essence, it would seem to me that while that may seem insignificant, if
you read it in the context of the bill and how it would follow, it gives the
power to the president under IEPA (ph), under the circumstances just described,
to have the president broadly determine that he has in essence the opportunity
to use it to establish an export regime.
And then, subsequently, by striking on page 16, line 17,
"all that follows," in essence it creates the essence of that regime
by asking for all of these issues which in fact are countervening to the
purposes of the bill in the first place which is that it's generally available.
And so, the bottom line is we have two set of circumstances. We have one in
which we -- and I understand for those who disagree with the underlying bill
and I respect their view although I disagree with it.
But ultimately, what this amendment does is, in my mind, clearly goes to get
those provisions that would permit the thrust of the bill to move forward. And
in essence, the
"but only" is much more significant than it would appear. And secondly, it then
establishes elements of a regime. And if you believe that it's generally
available in the first place, then these other provisions aren't necessary.
And to accept this amendment is ultimately to undermine the context of those
who support the bill. So, I would support Mr. Gejdenson's amendment and hope
that it is adopted given the time frames that I
think are important, but oppose Mr. Berman's.
GILMAN: Thank you, Mr. Menendez.
GEJDENSON: Mr. Chairman.
GILMAN: Mr. Gejdenson.
GEJDENSON: Not to extend the time, but I'd ask unanimous consent to change my
30 days to 30 working days.
GILMAN: Is there objection to the proposed amendment by Mr. Gejdenson?
If there is no objection, the amendment is accepted as -- the Gejdenson
amendment as modified.
MANZULLO: I have a question.
GILMAN: Mr. Manzullo.
MANZULLO: On the underlying Berman amendment, does this state that -- I'm
trying to find out how this fits into the whole scheme here. The language
that's on page two of the amendment, lines one through seven, I'm sorry, lines
one through 13 become part of the definition of technical review.
Mr. Berman.
BERMAN: Yes, Mr. Manzullo.
MANZULLO: OK, on your amendment, Mr. Berman,
on page two, lines one through 13, those become part of the definition of the
term technical review that appears on page 16 of the original bill.
BERMAN: I'm sorry, what part of the amendment?
MANZULLO: Page two, lines one through 13.
BERMAN: Yes.
MANZULLO: Do you see that on your amendment?
BERMAN: Yes.
MANZULLO: All right, then key that to where it fits into the main bill on page
16, lines 17 through 20, do you see that?
BERMAN: Yes.
MANZULLO: OK, my question here is does this mean that every time a license is
sought, that -- it says, your amendment says a potential destination and
potential end users. How would you know that? How could an applicant
conceivably come up with the list of the names of those people?
BERMAN: Can I ask -- I mean, I'm happy to take a
stab at it, it's a fair question.
MANZULLO: Yes, of course.
BERMAN: But I think Secretary Reinsch could answer it better than I could, if
he heard it.
GILMAN: Mr. Secretary, again, will you identify yourself?
REINSCH: Yes, William Reinsch, the undersecretary of commerce for export
administration.
I'm sorry, could you repeat the last part of your question, Mr. Manzullo.
MANZULLO: Mr. Secretary, the -- there is a redefinition, a new definition of
the term technical review.
REINSCH: Yes, sir.
MANZULLO: Are you with me so far?
REINSCH: Yes, I'm looking at that language, page two of the amendment.
MANZULLO: That's correct.
REINSCH: Yes.
MANZULLO: And that pockets into page 16 of the original bill. Are you there?
REINSCH: Yes.
MANZULLO: My question is when an application is filed, by a manufacturer or
seller of the encryption product or an encrypted software
product; how would that person know the potential destinations and potential
end users?
REINSCH: Well that would not be particularly unusual, Mr. Manzullo. Often
times with respect to license applications, we have largely through a process
of issuing adviser opinions or other discussions have what is tantamount to a
bit of a negotiation with the exporter in which he tells us what destinations
he's thinking about. And we render some judgments as to what destinations might
or might not receive approval.
I don't view this particular procedure here as novel in that regards.
Exporters usually have markets in mind and I think the term potential means
where they envision their customers being.
MANZULLO: But what would be the potential end user? Would it be the party that
buys the software? Or the party that is the eventual recipient of information
over the software?
REINSCH: The former. We do not control, nor does this bill address the
question of information that is transmitted in encrypted form. We have -- we
control the
encryption products and the encryption technology. So, whether the -- the end
user might be a retailer. Or, the end user might be an end user in the sense
of an individual. Either one -- that would depend on the product and the
company's intention.
BERMAN: Would the gentleman yield?
I ask unanimous consent the gentleman have two additional minutes.
GILMAN: The gentleman is given two additional minutes.
BERMAN: Would the gentleman yield, Mr. Manzullo?
MANZULLO: Of course.
BERMAN: I was right. Could you or the ranking member explain to me in the
existing bill, how in the heck, anyone is supposed to find out before it
happens whether the bill goes -- whether the product goes to a country on the
terrorists list, to an embargoed country, to a military end user. How in the
heck are they supposed to find that out without an expanded review?
Now, you can say it's
generally available so let it go. But then, strike that from the bill. Don't
pretend you're doing something about terrorists countries, embargoed countries,
military end users, because it's a farce.
And I'd like to have the answer. How is Congress going to find out that
without this kind of expanded technical review?
(UNKNOWN): Will the gentleman yield?
That's exactly the point of this legislation. That when something is generally
available, for instance, it's clear that given a choice, we would not sell
spark plugs to Saddam Hussein, because we don't want him to start his tanks.
And we tell American companies not to sell spark plugs there. But yes, we do
know, as a matter of fact, that anywhere on this planet he can buy spark plugs.
In the same sense, these products are so generally available, in that
determination, that what we can do is try to prohibit them. But they are yes,
generally
available, that's the discussion.
That's why Mr. Reinsch just moved the computer standards because, you could
stand on your head all week, but this stuff is available everywhere. So, if
you don't believe in the general availability issue, you ought to say so, you
ought to oppose the bill. But not to argue that we ought to establish a regime
for products that are generally available.
(AUDIO GAP)
BERMAN: (OFF-MIKE) the Department of Commerce and the Department of State say,
over and over again, generally available is different then widely used.
BERMAN: And the consequence of this bill as it was originally proposed is to
quicken, speed up the time that this stuff will be widely used by people we
don't want to have it then -- that I got to think twice before I jump onboard
this train that is going on ...
GILMAN: Gentleman's time has expired.
(UNKNOWN): I move the amendment, Mr. Chairman.
GILMAN: The amendment has been moved by Mr. Gejdenson. Do any members seeking
recognition? If not, question is on the second degree amendment by Mr.
Gejdenson to the Berman amendment. All in favor signify in the usual manner?
MEMBERS: Aye.
GILMAN: All opposed?
MEMBERS: No.
(UNKNOWN): I'd like a roll call, Mr. Chairman.
GILMAN: Roll call has been requested. In favor of a roll call please raise
your hands accordingly. Roll call is ordered. Clerk will call the roll.
CLERK: Mr. Gilman.
GILMAN: No.
CLERK: Mr. Gilman, votes no.
CLERK: Mr. Goodling. Mr. Leach. Mr. Hyde. Mr. Bereuter.
BEREUTER: No.
CLERK: Mr. Bereuter, votes no. Mr. Smith. Mr. Burton. Mr. Gallegly. Ms.
Ros-Lehtinen. Mr.
Ballenger.
BALLENGER: Yes.
CLERK: Mr. Ballenger, votes yes. Mr. Rohrabacher.
ROHRABACHER: Yes.
CLERK: Mr. Rohrabacher, votes yes. Mr. Manzullo.
MANZULLO: Yes.
CLERK: Mr. Manzullo, votes yes. Mr. Royce.
ROYCE: No.
CLERK: Mr. Royce, votes no. Mr. King. Mr. Chabot.
CHABOT: Aye.
CLERK: Mr. Chabot votes yes. Mr. Sanford. Mr. Salmon. Mr. Houghton.
HOUGHTON: Yes.
CLERK: Mr. Houghton votes yes. Mr. Campbell.
CAMPBELL: Aye.
CLERK: Mr. Campbell votes yes. Mr. McHugh. Mr. Brady. Mr. Burr. Mr.
Gillmor. Mr. Radanovich. Mr. Cooksey. Mr. Tancredo,
TANCREDO: No.
CLERK: Mr. Tancredo votes no. Mr. Gejdenson.
GEJDENSON: Aye.
CLERK: Mr. Gejdenson votes yes. Mr. Lantos.
Mr. Berman.
BERMAN: No.
CLERK: Mr. Berman votes no. Mr. Ackerman.
ACKERMAN: Aye.
CLERK: Mr. Ackerman votes yes. Mr. Faleomavaega. Mr. Martinez. Mr. Payne.
PAYNE: Pass.
CLERK: Mr. Payne passes. Mr. Menendez.
MENENDEZ: Aye.
CLERK: Mr. Menendez votes yes. Mr. Brown.
BROWN: No.
CLERK: Mr. Brown votes no. Ms. McKinney. Mr. Hastings. Ms. Danner. Mr.
Hilliard.
HILLIARD: Aye.
CLERK: Mr. Hilliard votes yes. Mr. Sherman. Mr. Sherman.
SHERMAN: Yes.
CLERK: Mr. Sherman votes yes. Mr. Wexler. Mr. Rothman.
ROTHMAN: No.
CLERK: Mr. Rothman votes no. Mr. Davis.
DAVIS: No.
CLERK: Mr. Davis votes no. Mr. Pomeroy.
POMEROY: No.
CLERK: Mr.
Pomeroy votes no. Mr. Delahunt.
DELAHUNT: Yes.
CLERK: Mr. Delahunt votes yes. Mr. Meeks. Ms. Lee.
LEE: Aye.
CLERK: Ms. Lee votes yes. Mr. Crowley.
CROWLEY: Aye.
CLERK: Mr. Crowley votes yes. Mr. Hoeffel.
HOEFFEL: Yes.
CLERK: Mr. Hoeffel votes yes.
GILMAN: The clerk will call the absentees.
CLERK: Mr. Goodling.
GOODLING: OK.
CLERK: Mr. Goodling votes yes. Mr. Leach.
GILMAN: Clerk is calling the absentees.
CLERK: Mr. Hyde. Mr. Smith. Mr. Burton. Mr. Gallegly. Ms. Ros-Lehtinen.
Mr. King. Mr. Sanford. Mr. Salmon.
SALMON: Yes.
CLERK: Mr. Salmon votes yes.
GILMAN: How has Mr. King...
CLERK: Mr. King has not voted.
KING: Yes.
CLERK: Mr.
King votes yes. Mr. McHugh. Mr. Brady.
KING: (OFF-MIKE)
CLERK: Mr. King votes no.
GILMAN: Has Mr. Burton recorded?
CLERK: Mr. Burton has not voted. Mr. Burr. Mr. Gillmor. Mr. Radanovich.
RADANOVICH: Aye.
CLERK: Mr. Radanovich votes aye. Mr. Cooksey. Mr. Lantos. Mr. Faleomavaega.
Mr. Martinez. Mr. Payne.
PAYNE: Yes.
CLERK: Mr. Payne votes yes. Ms. McKinney.
MCKINNEY: Yes.
CLERK: Ms. McKinney votes yes. Mr. Hastings. Ms. Danner.
DANNER: No.
CLERK: Ms. Danner votes no. Mr. Wexler. Mr. Meeks.
GILMAN: Clerk will read -- Mr. Burton.
CLERK: Mr. Burton has not voted.
(OFF-MIKE)
(LAUGHTER)
(UNKNOWN): I think it's too late.
(LAUGHTER)
(UNKNOWN): Mr.
Chairman, I may reconsider my vote.
GILMAN: Clerk will report the tally.
CLERK: On this vote there were 21 ayes and 11 nos.
GILMAN: The amendment is agreed to. The question is now on the Berman
amendment as amended. All in favor signify in the usual manner.
MEMBERS: Aye.
GILMAN: Opposed?
MEMBERS: No.
GILMAN: Ayes have it. We'll now proceed to the next amendment. The amendment's
agreed to. We'll now proceed to the Gilman-(OFF-MIKE) amendment restricting
the export of certain encryption products. Clerk will distribute the amendment.
Clerk will report the amendment.
CLERK: Amendment offered by Mr. Gilman. Page 17, strike line 16 through 22 and
insert the following, (2) specific denials, the secretary...
GILMAN: The clerk will withhold. Clerk will report the Gilman amendment.
(UNKNOWN): You're
passing out the wrong amendment. You're passing out the amendment to Gilman.
CLERK: Amendment offered by Mr. Gilman. Page 17, strike lines 16 through 22
and insert the following: (2) specific denials. The secretary of commerce
shall prohibit the...
GILMAN: The amendment is considered as having been read.
GEJDENSON: Mr. Chairman.
GILMAN: Mr. Gejdenson. Well, first let me proceed with presenting my
amendment. This amendment -- recognize myself for a sufficient time to present
the amendment. This amendment ensures that the secretary would have the
authority to prohibit the export of encryption products to additional countries
beyond those now contained in the bill. As presently written, the bill would
allow for the prohibition of encrypted products to the list of designated
terrorist countries and to those countries upon whom we've imposed an embargo.
I'm concerned that the bill as presently written would place no restriction on
the export of such
products to the government of the people's Republic of China, PRC, or as armed
forces (OFF-MIKE) to the people's liberation army. Especially in light of the
findings of the Cox report and the recent overwhelming vote to restrict our
high tech exports to China, we should not be allowing the decontrol of the
sensitive encryption products for use by the government and military forces of
that country.
This amendment would impart provide for the prohibition of encrypted products
to the government of the PRC, to its military units, including the PLA or to
entities controlled by the government its military. This amendment would also
allow for the secretary to prohibit the export of encryption products where
there is incredible evidence that these would be used in the manufacture of
weapons of mass destruction or otherwise assist in the proliferation of weapons
of mass destruction.
I know that my colleagues on the committee are well aware that our nation faces
a number of national security threats around the world. Prominently included
those
related to weapons of mass destruction. We should therefore ensure that this
measure now being considered by this committee will take those threats fully
into account. And most certainly we do not want to provide our potential
adversaries around the world with the extra cloak of protection that will be
afforded them with state of the art encryption products.
GEJDENSON: Mr. Chairman.
GILMAN: Mr. Gejdenson.
GEJDENSON: Mr. Chairman, I have an amendment at the desk which I think we've
worked out between the staffs that have already been distributed, at least on
our side, and I move the amendment.
GILMAN: Mr. Gejdenson. The clerk will report the amendment.
CLERK: Amendment offered by Mr. Gejdenson. Page 17 strike line six...
GEJDENSON: Will the amendment be considered as read?
GILMAN: Without objection. Mr. Gejdenson, is recognized for five minutes on
his amendment.
GEJDENSON: Mr.
Chairman, we've worked this out. It has achieved the goals you are achieving
-- attempt to achieve in your amendment. I think both sides are supportive of
it and the amendment is self accepted.
GILMAN: The amendment has been distributed.
GEJDENSON: Mr. Chairman, apparently there is one modification necessary which
is where in line two, a specific foreign country or countries.
GEJDENSON: I ask unanimous consent to amend.
GILMAN: Without objection the proposed amendment is accepted.
BEREUTER: Mr. Chairman.
GILMAN: Mr. Bereuter.
BEREUTER: Thank you, Mr. Chairman. I think that this amendment as modified by
changing made of shell as a part of it in handwritten text here now makes this
amendment entirely acceptable and I think that it implements the Chairman's
intent and should be approved. Thank you.
GILMAN: Any other members seeking recognition.
DANNER: I am.
GILMAN: Ms.
Danner.
DANNER: Mr. Chairman, in looking at the language and I have no problem with it
but I'm trying to find out earlier in the bill where we reference secretary of
commerce before we just start using the term secretary.
GILMAN: This issue referring to the secretary of commerce, defined in the bill
as secretary as commerce -- elsewhere in the bill.
DANNER: Elsewhere I see secretary. I'm picking up secretary, line 11 page
eight. But prior to that I'm not seeing secretary of commerce.
GILMAN: Ms. Danner, wherever it says secretary it is defined in the bill as
secretary of commerce. Does that answer the inquiry? Any other members
seek...
DANNER: In this bill, on that page.
GILMAN: I'm sorry, I didn't hear you.
DANNER: OK. Very good, thank you.
GILMAN: Any other members
seeking recognition. If not...
CAMPBELL: Yes, Mr. Chairman. Mr. Chairman, I'm seeking recognition.
GILMAN: Mr. Campbell.
CAMPBELL: I've been seeking recognition on my left.
(LAUGHTER)
CAMPBELL: It's a question.
GILMAN: Mr. Campbell.
CAMPBELL: Thank you, Mr. Chairman.
GILMAN: We all recognize you.
(LAUGHTER)
CAMPBELL: Military end use. If I export a legal pad, a yellow legal pad and
I'm selling it and I anticipate it's very likely at some point somebody in a
military post somewhere...
GILMAN: We're talking about national security, Mr. Campbell.
CAMPBELL: That's what I'm trying to get to, just that, so that we make sure
that this amendment is properly focused on the problem at hand. And I don't
think it is for that reason. In other words, take
my hypothetical of the legal pad, tell me if I got it wrong. The secretary
determines there's credible evidence that a legal pad will find its way into a
military post of the Netherlands for all I read, of a NATO country.
So the question is as I just heard my good friend from Nebraska suggest, why do
we treat encryption different from a legal pad and if the answer is because
encryption isn't handled more dangerous then we underline...
GEJDENSON: Would the gentleman yield?
CAMPBELL: Well let me just finish. I'd be pleased to in a second. You then
undermine the entire concept of the bill which is to say that there is some
encryption things that are just so generally available. So universal as to be
like a legal pad. And I'd be happy to yield to my friend from Connecticut.
GEJDENSON: We accepted the Chairman's amendment in (OFF-MIKE), but we agree.
That basically
"may" is the right approach. That
"may" would allow them to stop it from going to Sudan Hussein but not stop it from
going to the British.
CAMPBELL: Well to reclaim my time...
GILMAN: And would the gentleman yield?
CAMPBELL: I'd be pleased to, Mr. Chairman.
GILMAN: We are prohibiting the export of specific encryption products to
specific countries. Encryption products have a great deal more impact upon
national security then a legal pad does.
CAMPBELL: Would the gentleman yield?
GILMAN: I'd be pleased to yield.
CAMPBELL: It's my time, Mr. Chairman.
GEJDENSON: Would you yield, Mr. Campbell?
CAMPBELL: Let me respond to the Chairman first. Mr. Chairman, it's drawn too
broadly for that. It's a
"shall" not a
"may." It doesn't say that it's a dangerous military end use. The specific foreign
country is identified by the secretary if it's
military, period.
GILMAN: I'd be pleased to the gentleman from California, Mr. Berman.
BERMAN: Thank you, Mr. Campbell.
CAMPBELL: I'd be pleased to yield to my colleague.
(LAUGHTER)
BERMAN: The problem is the word,
"for military end use." There are some militaries that we want to export our encryption technologies
to. The British maybe. A lot of others that we work with, our allies. As
this amendment is written it looks like it would require the prohibition of
those exploits and therefore I think the
"shall" should become
"may."
CAMPBELL: Yes. Absolutely. It should be
"may."
BERMAN: I would ask unanimous consent to bring it back to
"may."
GILMAN: Without objection the measure is now revised to the word
"may" instead of
"shall" in the first line of specific denials.
Any have further comments with regard to the proposed amendment? Anyone seeking
recognition? If not, the vote is now on the amendment. And the second degree
(ph)
on the nature of the substitute to the amendment offered by Mr. Gilman. All in
favor signify in the usual manner.
MEMBERS: Aye.
GILMAN: Opposed? The amendment is carried and we now will vote on the Gilman
amendment as amended. All in favor signify the issue of manner.
MEMBERS: Aye.
GILMAN: Opposed?
The Gilman amendment is carried as amended.
We now proceed -- is there another amendment? Is there a further amendment?
Mr. Berman? Mr. Davis?
DAVIS?: Mr. Chairman, there should be an amendment at the desk.
GILMAN: Amendment by Mr. Davis, plea, a clerk will read. Clerk will distribute
the amendment.
CLERK: Amendment offered by Mr. Davis. Page 12 line three, strikes substantial
and insert credible. Page 17 line 20, strike substantial and insert credible.
GILMAN: Gentleman, as recognized on this
amendment.
DAVIS: Mr. Chairman, the amendment that we just adopted offered by Mr.
GEJDENSON. We changed the standard in the bill from substantial to credible
as...
UNKNOWN: Gentleman yield? We think once again the gentleman has come up with
an excellent amendment and we support it.
GILMAN: Is there any further comments with regard to the amendment by Mr.
Davis. If not, all in favor signify in the issue of manner.
MEMBERS: Aye.
Opposed? The Davis amendment is kept. Mr. Berman.
BERMAN: Amendment number four.
CLERK: Number four?
GILMAN: Clerk will...
UNKNOWN: Mr. Chairman, (OFF-MIKE) point of order?
GILMAN: The gentleman is heard on this point of order. The gentleman will be
protected on this point of order. Clerk will distribute and clerk will read
the amendment.
CLERK: Amendment offered by Mr. Berman. Page six,
strike line three through 15 and insert the following. (B), exception...
GILMAN: The Amendment is considered as having been read, Mr. Berman is
recognized on his amendment.
BERMAN: Yes, Mr. Chairman, this amendment was spoken about or this issue talked
about in the closed briefing. And because it was a closed briefing I can't say
what was said about it. But the fact is the author of the bill indicated some
sympathy for an amendment which would allow, where the government is
contracting with a software company to produce encryption for the Pentagon as
part of a contractual relationship, to have a key recovery system.
The way the bill is written now, the parties couldn't voluntarily contract --
the irony would be that if a company in Afghanistan wanted a key recovery
system in some encryption product, they can negotiate with the software company
to get that encryption technology with a key
recovery, but the Department of Defense, the CIA, the National Security Agency
couldn't.
I think that's -- I hope that's an inadvertent effort...
(UNKNOWN): Would the gentleman yield?
BERMAN: Sure.
(UNKNOWN): My concern, we didn't get to see these amendments till very late. I
don't have a problem with the substance of the amendment. You know, I think we
may be all right.
BERMAN?: (OFF-MIKE) pass it then.
(UNKNOWN): That's fine. I withdraw the objection.
GILMAN: Has the objection been withdrawn? All in favor of -- any further
comments on the Berman amendment? If there are no further comments the vote is
now on the Berman amendment. Signify in the usual manner.
MEMBERS: Aye.
GILMAN: Opposed?
The Berman amendment is adopted. Any further amendments? Mr. Berman.
(OFF-MIKE)
Mr. Berman. (OFF-MIKE) the clerk will distribute the amendment, clerk will
read the amendment.
CLERK: The amendment offered by Mr. Berman. Page 17 line 13. Strike or after
the semicolon...
GILMAN: Berman amendment is considered as having been read. Mr. Berman is
recognized on his amendment. Mr. Berman.
BERMAN: Thank you, Mr. Chairman. Where is this amendment? There's been some
discussion about Wassenaar, a multilateral export regime, and its relationship
to this. The premise of this bill is that unilateral controls don't work when
other countries are allowing their companies to produce manufacture and export
of those same kinds of products. And there's a very good argument in favor of
that.
But, there are times when we can develop a multilateral regime to ban exports
to certain end users. And all this amendment would do is allow the U.S.
government, once we had turned Wassenaar into a meaningful entity, once we had
pushed for meaningful controls, this would allow the U.S. government to license
items within the multilateral export control regime.
There has been
a lot of myths about what's going on in other countries. I got a letter from
the Business Software Alliance, a group I work closely with. And they say we
should support this bill because of what's going on in Germany, France and
England. But none of those countries, yes, they are liberalizing their export
regimes for encryption technology, but none of them go anywhere near as far as
H.R. 850 would do.
All Germany is doing is opening up exports to the European union. This bill
opens up exports to almost everyone. All Great Britain is doing is dumping a
key recovery, key escrow system that we have never imposed and have no
intention of imposing. France still has tighter controls than we have right
now -- a little less what we would have under H.R. 850.
But should we get a meaningful multilateral export control regime, we should be
able to license
pursuant to that regime. A binding regime. I don't disagree with Mr.
Gejdenson when he says,
"the current level of this regime would not prohibit us from passing this bill."
(UNKNOWN): You don't disagree?
BERMAN: I don't disagree with that at all because it allows national treatment
and national decisions.
(UNKNOWN): Would the gentleman...
BERMAN: Yes, I will yield.
(UNKNOWN): I guess my question here is, let's say we had three Wassenaar
countries come to the agreement with the United States but the Israelis, the
Indians, and two other countries made the same product. And had it all over
the market place?
BERMAN: Well, I would bet without having any inside information, that number
one, that the Israelis and the Indians are only exporting encryption software
that has gone through their licensing processes.
And secondly, I think we should give more credit to our leadership then that.
We have a regime that has -- we're already
allowing exports to 45 countries that if the end users are U.S. subsidiaries,
banks, insurance companies, health care organizations or e-commerce people who
are engaged in e-commerce.
Now, we're not going to have a two or three country regime as a multilateral
regime and then re-impose export controls pursuant to that. But Wassenaar is
pretty much like Cocom (ph). The major industrial countries are in it. Japan
is in it. The Europeans are in it. And you want to make efforts to both
expand the number of people in it like we're doing with the missile technology
control regime, and to toughen up the language.
And I'm just saying, we should not unilaterally prohibit ourselves from
licensing products that an administration is able to get meaningful and
effective multilateral controls on. We should allow room to re-impose
licensing once there is that
kind of effective multilateral export regime.
(UNKNOWN): Would the gentleman yield?
BERMAN: I'd be happy to yield.
(UNKNOWN): I thank the gentleman for yielding. If my colleagues will look at
lines five and six, I'd just remind them that the words there are not
(OFF-MIKE) actual limit of authority. What the gentleman is doing is...
(UNKNOWN): Is the gentleman referring to the base bill?
(UNKNOWN): I am referring to the base bill.
(UNKNOWN): I'm sorry.
(UNKNOWN): Can you show me it's the only place that's five and six. But lines
five and six have the base bill in which this Berman amendment supplements,
gives the president the ability to make a decision based upon the kind
multilateral export control regime is in place. Now, if it's not broad enough,
obviously it doesn't do much good and the president you'd assume using good
judgment would not exercise the authority.
But where in fact the multilateral export control regime is one that would
cover the most sophisticated encryption technology where it would make sense
for us to participate, then the president ought to have that authority.
(UNKNOWN): And if we do not provide this language, we are precluding our
president from working with a multilateral control regime for licensing where
it does it make sense, where it is effective. So I think the gentleman's
amendment is essential. Trust the president to use good judgment where it is
not comprehensive enough to limit the encryption technology, then he would not
of course exercise his authority to limit. Thank the gentleman for yielding.
GILMAN: Mr. Menendez.
MENENDEZ: My concern with Mr. Berman's amendment is is that, as I understand
it, it would force us to license products under which we have this binding
multilateral regime, but that binding multilateral regime may not include
countries which are actually developing or producing products which make it
generally available.
And then at the end of the day, what we have accomplished, it seems to me, is
to hamstring our own companies and our own efforts in a process in a process in
which those who should be part of those binding agreements, because they are
the countries developing and producing and ultimately being part of generally
creating the encryption technology that's available, are not. Therefore
they're not bound to it. Therefore, they can export. Therefore, we have
limitations in our companies and it just seems to me that ultimately doesn't
(OFF-MIKE) to our benefit under the set of circumstances.
If it is all engaging, all consuming, and having all of those entities that in
fact are producing, then at that point in time, it might make sense. But that
is not the reality that we have...
(UNKNOWN): Would the gentleman yield?
MENENDEZ: I'd be happy to yield.
(UNKNOWN): During the entire -- well not during the entire Cold War,
but in the last 15 years of the Cold War we had COCOM (ph). A group of
countries that got together to control dual use items from communist blocked
countries. Some of the products that were controlled were made in Russia,
Poland, east blocked countries, non- aligned countries. We didn't say, jeez,
because they're made there, we're going to strip COCOM of all authority.
If you can get the Europeans, the Japanese, hopefully, the Indians, the
Israelis and other countries into a meaningful multilateral export control
regime, but because Belarus isn't in it. And they've got some company that's
making some God knows what kind of backdoor encryption technology that they're
sending around, and that that's the reason not to give any credence to this
multilateral export control regime because Belarus isn't in it, I don't think
that makes a lot of sense.
MENENDEZ: I'm reclaiming my time. I certainly don't believe that Belarus is
India and Israel. And obviously they have enormous capacity. I mean, if you
wanted to amend your amendment to say -- to include a binding multilateral
export control regime in which the United States participates as well as other
producing countries, then maybe it would catch all of those, but otherwise it
does not and it leaves us at risk in the process.
(UNKNOWN): Mr. Menendez, would you yield?
MENENDEZ: Yes.
(UNKNOWN): I thank my colleague from New Jersey. I just want to make the point
once more to my colleagues that the language has nothing has actual limited the
authority. And that means of course that the president could grant a license
when the multilateral export regime is not adequate to prohibit the encryption.
And to fail to give the president the authority to work on an effective
multilateral export control regime, I think would be a terrible national
security loophole, because it's not requiring a license, it's simply giving him
-- limiting his authority currently in lines five and six. And I think that's
an important point we need to consider. Thank you.
MENENDEZ: I appreciate the gentleman's point. I think we would be adding
additional opportunity for the president and some of us believe under the set
of circumstances that exists that the administration has been far too rigid in
its process and in fact ultimately hurting America companies and not ultimately
protecting the national security of the United States.
If that were the choices here then I would agree with my colleagues. But that
is not the choices based upon what we know in the world today as generally
available. And that's why I have an opposition to this specific amendment.
GILMAN: Gentleman's time has expired. Mr. Manzullo.
MANZULLO: I would
speak in opposition to this amendment. Since December of '97, there have been
six new countries that have manufactured encrypted products and those new
countries are Estonia, Iceland, (OFF-MIKE), Romania, South Korea and Turkey.
And presently there are at least 35 countries that manufacture over 800
encrypted products.
(UNKNOWN): Would the gentleman yield?
MANZULLO: Just a second. The Wassenaar agreement includes only 33 countries so
if we accept this amendment then we're going to be binding ourselves to that
cozy group of 33. Countries that are outside of Wassenaar could go ahead and
sell it, a widely acceptable product that's generally used which would be to
our export detriment. So I think that the amendment should be defeated. I
yield to Mr. Gejdenson.
GILMAN: Thank you, Mr. Manzullo. Time has expired. Let me just state to my
colleagues. We have a vote on the amendment right away and a final vote
so please bear with us. Mr. Gejdenson.
GEJDENSON: Mr. Chairman, I think we ought to reject this amendment. Even when
COCOM (ph) was there, and even when there was a Soviet Union, we had licensing.
Nobody else followed those licensing regimes. What we're talking about is
generally available. A product -- these are products that are available
worldwide. This amendment doesn't make sense. If we get to a point where
someday we actually have an agreement, this Congress will rapidly pass
legislation that would...
(UNKNOWN): Would you yield?
GEJDENSON: I'd be happy to yield.
(UNKNOWN): There was a very good argument. I didn't always buy it, but there
was a very good argument that during the Cold War, our unilateral controls
which over and above COCOM (ph) were pointless because they were restricting
American manufactures from selling stuff that all our allies were selling.
This is about the day when COCOM (ph) notion becomes the Wassenaar notion and
says we don't have
unilateral controls beyond that export regime, but we certainly shouldn't be
able to be restricted from licensing that which the 33 countries or hopefully
the 55 countries might agree to.
I don't understand how we can talk about multilateral regimes as the answer and
then...
GEJDENSON: Reclaiming my time. I say to the gentleman, if we get an agreement
that includes substantially the manufacturers of encrypted technology or
particular kind that we find to be a danger to our national security. And if
we get a general agreement which actually looks like it could be enforced,
which I've yet to see. At that point I will join the gentleman in moving that
legislation. Until then, I have to urge rejection of his amendment.
GILMAN: If there is no further request for debate I'll close the debate by
saying that I agree with Mr. Berman, that we need to clarify that H.R. 850 does
not prohibit our nation from imposing -- does not
prohibit the United States from imposing an effective export control regime
consistent with our obligations under any multilateral agreement that itself is
effective. All in favor. We're now on the Berman amendment. All in favor of
the Berman amendment signify in the usual manner.
MEMBERS: Aye.
GILMAN: Opposed?
MEMBERS: No.
The Berman amendment is...
(UNKNOWN): Ask for a roll call.
(UNKNOWN): Ask for a roll call vote.
GILMAN: Roll call as signified in the usual manner for a roll call. Clerk will
call the roll.
CLERK: Mr. Gilman.
GILMAN: Aye.
CLERK: Mr. Gilman, votes yes.
CLERK: Mr. Goodling. Mr. Leach. Mr. Hyde. Mr. Bereuter.
BEREUTER: Aye.
CLERK: Mr. Bereuter, votes yes. Mr. Smith. Mr. Burton.
Mr. Gallegly.
GALLEGLY: Aye.
CLERK: Mr. Gallegly votes yes.
CLERK: Ms. Ros-Lehtinen.
ROS-LEHTINEN: No.
CLERK: Ms. Ros-Lehtinen votes no. Mr. Ballenger.
BALLENGER: Yes.
CLERK: Mr. Ballenger, votes yes. Mr. Rohrabacher. Mr. Manzullo.
MANZULLO: No.
CLERK: Mr. Manzullo, votes no. Mr. Royce.
ROYCE: Aye.
CLERK: Mr. Royce, votes yes. Mr. King.
KING: Aye.
CLERK: Mr. King votes yes.
CLERK: Mr. Chabot.
CHABOT: No.
CLERK: Mr. Chabot votes no. Mr. Sanford. Mr. Salmon. Mr. Houghton.
HOUGHTON: No.
CLERK: Mr. Houghton votes no. Mr. Campbell.
CAMPBELL: No.
CLERK: Mr. Campbell votes no. Mr. McHugh. Mr. Brady.
BRADY: No.
CLERK: Mr.
Brady votes no. Mr. Burr. Mr. Gillmor.
GILLMOR: No.
CLERK: Mr. Gillmor votes no. Mr. Radanovich.
RADANOVICH: Aye.
CLERK: Mr. Radanovich votes yes. Mr. Cooksey.
COOKSEY: Yes.
CLERK: Mr. Cooksey votes yes. Mr. Tancredo. Mr. Gejdenson.
GEJDENSON: No.
CLERK: Mr. Gejdenson votes no. Mr. Lantos. Mr. Berman.
BERMAN: Aye.
CLERK: Mr. Berman votes yes. Mr. Ackerman.
ACKERMAN: No.
CLERK: Mr. Ackerman votes no. Mr. Faleomavaega. Mr. Martinez. Mr. Payne.
(AUDIO GAP)
CLERK: Mr. Menendez votes no. Mr. Brown.
BROWN: No.
CLERK: Mr. Brown votes no.
CLERK: Ms. McKinney.
MCKINNEY: No.
CLERK: Ms. McKinney votes no. Mr. Hastings. Ms. Danner.
DANNER:
Ms. Danner votes yes. Mr. Hilliard.
HILLIARD: Aye.
CLERK: Mr. Hilliard votes yes. Mr. Sherman.
SHERMAN: No.
CLERK: Mr. Sherman votes no. Mr. Wexler. Mr. Rothman.
ROTHMAN: Aye.
CLERK: Mr. Rothman votes yes. Mr. Davis.
DAVIS: Yes.
CLERK: Mr. Davis votes yes. Mr. Pomeroy. Mr. Pomeroy.
POMEROY: Aye.
CLERK: Mr. Pomeroy votes yes. Mr. Delahunt. Mr. Meeks.
MEEKS: No.
CLERK: Mr. Meeks votes no. Ms. Lee.
LEE: No.
CLERK: Ms. Lee votes no. Mr. Crowley.
CROWLEY: No.
CLERK: Mr. Crowley votes no. Mr. Hoeffel.
HOEFFEL: No.
CLERK: Mr. Hoeffel votes no.
GILMAN: The clerk will report the absentees.
(LAUGHTER)
CLERK: Mr. Goodling.
GOODLING: Aye.
CLERK: Mr. Goodling votes yes. Mr. Leach.
CLERK: Mr. Hyde. Mr. Smith. Mr. Burton. Mr. Rohrabacher.
ROHRABACHER: No.
CLERK: Mr. Rohrabacher votes no. Mr. Sanford.
SANFORD: No.
CLERK: Mr. Sanford votes no. Mr. Salmon.
SALMON: No.
CLERK: Mr. Salmon votes no. Mr. McHugh.
MCHUGH: I already gave you (OFF-MIKE).
CLERK: Mr. Burr. Mr. Tancredo.
TANCREDO: No.
CLERK: Mr. Tancredo votes no. Mr. Lantos. Mr. Faleomavaega. Mr. Martinez.
Mr. Payne.
PAYNE: No.
CLERK: Mr. Payne votes no. Mr. Hastings. Mr. Wexler. Mr. Delahunt. On this
vote -- ready?
GILMAN: Clerk will report the tally.
CLERK: There were 15 ayes and 22 nos.
GILMAN: The amendment is not
agreed to. I want to note that the chair wants to clarify that the Davis
amendment had been previously adopted in the event that we did make that
announcement.
If there are no further amendments, the previous question is now ordered on the
bill. The gentleman from -- Mr. Bereuter is recognized to offer a motion on
the bill.
BEREUTER: Mr. Chairman, I defer that honor. I think another person...
GILMAN: Mr. Manzullo.
MANZULLO: Mr. Chairman, I move that the committee report the bill as amended
favorably to the House.
GILMAN: The question has gone to motion the gentleman from Illinois, Mr.
Manzullo. All those in favor signify by saying aye.
MEMBERS: Aye.
GILMAN: All those opposed say no.
MEMBERS: No.
GILMAN: The aye's have it and the motion is agreed to. Is anyone seeking
recognition? Mr. Gejdenson is calling for a record vote. Without objection,
chief of staff, the
clerk will now call for a roll call.
CLERK: Mr. Gilman.
GILMAN: I vote no.
CLERK: Mr. Gilman, votes no. Mr. Ackerman.
ACKERMAN: Aye.
CLERK: Mr. Ackerman votes yes. Mr. Goodling.
GOODLING: Aye.
CLERK: Mr. Goodling votes yes. Mr. Leach. Mr. Hyde. Mr. Bereuter.
BEREUTER: No.
CLERK: Mr. Bereuter, votes no. Mr. Smith. Mr. Burton. Mr. Gallegly.
GALLEGLY: Aye.
CLERK: Mr. Gallegly votes yes.
CLERK: Ms. Ros-Lehtinen. Mr. Ballenger.
BALLENGER: Yes.
CLERK: Mr. Ballenger, votes yes. Mr. Rohrabacher.
ROHRABACHER: Yes.
CLERK: Mr. Rohrabacher votes yes. Mr. Manzullo.
MANZULLO: Yes.
CLERK: Mr. Manzullo, votes yes. Mr. Royce.
ROYCE: Aye.
CLERK:
Mr. Royce, votes yes. Mr. King.
KING: No.
CLERK: Mr. King votes no. Mr. Chabot.
CHABOT: Aye.
CLERK: Mr. Chabot votes yes. Mr. Sanford.
SANFORD: Aye.
CLERK: Mr. Sanford votes yes. Mr. Salmon.
SALMON: Aye.
CLERK: Mr. Salmon votes yes. Mr. Houghton.
HOUGHTON: Yes.
CLERK: Mr. Houghton votes yes. Mr. Campbell.
CAMPBELL: Aye.
CLERK: Mr. Campbell votes yes. Mr. McHugh. Mr. Brady.
BRADY: Aye.
CLERK: Mr. Brady votes yes. Mr. Burr. Mr. Gillmor.
GILLMOR: Yes.
CLERK: Mr. Gillmor votes yes. Mr. Radanovich.
RADANOVICH: Aye.
CLERK: Mr. Radanovich votes yes. Mr. Cooksey.
COOKSEY: Yes.
CLERK: Mr. Cooksey votes yes. Mr. Tancredo.
TANCREDO: Yes.
CLERK: Mr. Tancredo votes yes. Mr. Gejdenson.
GEJDENSON: Aye.
CLERK: Mr. Gejdenson votes yes. Mr. Lantos. Mr. Berman.
BERMAN: No.
CLERK: Mr. Berman votes no. Mr. Faleomavaega. Mr. Martinez.
MARTINEZ: Aye.
CLERK: Mr. Martinez votes yes. Mr. Payne.
PAYNE: Aye.
CLERK: Mr. Payne votes yes. Mr. Menendez.
MENENDEZ: Aye.
CLERK: Mr. Menendez votes yes. Mr. Brown. Ms. McKinney.
MCKINNEY: Aye.
CLERK: Ms. McKinney votes yes. Mr. Hastings. Ms. Danner.
DANNER: Aye.
CLERK: Ms. Danner votes yes. Mr. Hilliard.
HILLIARD: Aye.
CLERK: Mr. Hilliard votes yes. Mr. Sherman.
SHERMAN: Aye.
CLERK: Mr. Sherman votes yes. Mr. Wexler. Mr. Rothman.
ROTHMAN: No.
CLERK: Mr. Rothman votes no. Mr. Davis.
DAVIS: Yes.
CLERK: Mr. Davis votes yes. Mr. Pomeroy.
POMEROY: Aye.
CLERK: Mr. Pomeroy votes yes. Mr. Delahunt. Mr. Meeks.
MEEKS: Yes.
CLERK: Mr. Meeks votes yes. Ms. Lee.
LEE: Yes.
CLERK: Ms. Lee votes yes. Mr. Crowley.
CROWLEY: Yes.
CLERK: Mr. Crowley votes yes. Mr. Hoeffel.
HOEFFEL: Yes.
CLERK: Mr. Hoeffel votes yes.
GILMAN: The clerk will call the absentees.
CLERK: Mr. Leach. Mr. Hyde. Mr. Smith. Mr. Burton. Ms. Ros- Lehtinen. Mr.
McHugh. Mr. Burr. Mr. Lantos. Mr. Faleomavaega.
FALEOMAVAEGA: Yes.
CLERK: Mr. Faleomavaega votes yes. Mr. Brown.
BROWN: Yes.
CLERK:
Mr. Brown votes yes. Mr. Hastings. Mr. Wexler. Mr. Delahunt.
GILMAN: The clerk will report the tally.
CLERK: On this vote there were 33 ayes and five nos.
GILMAN: The motion is agreed to. Without objection the chief of staff may make
technical conforming, grammatical amendments to the bill just ordered reported.
Without objection the chairman is authorized to make motions under rule 22 in
respect to the bill, (OFF- MIKE) counterpart of the Senate. Without objection
the record will remain open for statements for members for five consecutive
days.
I'm giving notice of my intention to file views on the bill. However, the
committee is under a time constraint and must file its report on or before
Friday and I give notice that we will file in time to meet that deadline. Mr.
Crowley is
recognized for unanimous consent request.
CROWLEY: Mr. Chairman, I ask that my statement in favor of H.R. 850 be
(OFF-MIKE) into the record.
GILMAN: Without objection.
CROWLEY: Thank you.
GILMAN: Committee stands adjourned. Thank you for your patience.
END
NOTES:
Unknown - Indicates Speaker Unkown
Inaudible - Could not make out what was being said.
off mike - Indicates could not make out what was being said.
PERSON:
BENJAMIN A GILMAN (94%); WILLIAM F GOODLING (72%); HENRY J HYDE (57%); DAN L BURTON (56%); ILEANA ROS-LEHTINEN (55%); ELTON GALLEGLY (55%); DANA ROHRABACHER (54%); CASS BALLENGER (54%); PETER T KING (53%); CHRIS JOHN (51%); PAUL E GILLMOR (50%); RICHARD M BURR (50%); KEVIN BRADY (50%);
LOAD-DATE: July 17, 1999