By the authority vested in me as President by the Constitution and the laws
of the United States of America, including but not limited to the International
Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), and in order to take
additional steps with respect to the national emergency described and declared
in Executive Order 12924 of August 19, 1994, and continued on August 15, 1995,
and on August 14, 1996, I, William J. Clinton, President of the United States
of America, have decided that the provisions set forth below shall apply to
administration of the export control system maintained by the Export Administration
Regulations, 15 Cfr Part 730 et seq. ("the Ear"). Accordingly, it
is hereby ordered as follows:
Section 1. Treatment of Encryption Products. In order to provide for appropriate
controls on the export and foreign dissemination of encryption products, export
controls of encryption products that are or would be, on this date, designated
as defense articles in Category Xiii of the United States Munitions List and
regulated by the United States Department of State pursuant to the Arms Export
Control Act, 22 U.S.C. 2778 et seq. ("the Aeca"), but that subsequently
are placed on the Commerce Control List in the Ear, shall be subject to the
following conditions: (a) I have determined that the export of encryption
products described in this section could harm national security and foreign
policy interests even where comparable products are or appear to be available
from sources outside the United States, and that facts and questions concerning
the foreign availability of such encryption products cannot be made subject
to public disclosure or judicial review without revealing or implicating classified
information that could harm United States national security and foreign policy
interests. Accordingly, sections 4(c) and 6(h)(2)-(4) of the Export Administration
Act of 1979 ("the Eaa"), 50 U.S.C. App. 2403(c) and 2405(h)(2)-(4),
as amended and as continued in effect by Executive Order 12924 of August 19,
1994, and by notices of August 15, 1995, and August 14, 1996, all other analogous
provisions of the Eaa relating to foreign availability, and the regulations
in the Ear relating to such Eaa provisions, shall not be applicable with respect
to export controls on such encryption products. Notwithstanding this, the
Secretary of Commerce ("Secretary") may, in his discretion, consider
the foreign availability of comparable encryption products in determining
whether to issue a license in a particular case or to remove controls on particular
products, but is not required to issue licenses in particular cases or to
remove controls on particular products based on such consideration;
(b) Executive Order 12981, as amended by Executive Order 13020 of October
12, 1996, is further amended as follows:
(1) A new section 6 is added to read as follows:
"Sec. 6. Encryption Products. In conducting the license review described
in section 1 above, with respect to export controls of encryption products
that are or would be, on November 15, 1996, designated as defense articles
in Category
more
(Over)
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Xiii of the United States Munitions List and regulated by the United States
Department of State pursuant to the Arms Export Control Act, 22 U.S.C. 2778
et seq., but that subsequently are placed on the Commerce Control List in
the Export Administration Regulations, the Departments of State, Defense,
Energy, and Justice and the Arms Control and Disarmament Agency shall have
the opportunity to review any export license application submitted to the
Department of Commerce. The Department of Justice shall, with respect to such
encryption products, be a voting member of the Export Administration Review
Board described in section 5(a)(1) of this order and of the Advisory Committee
on Export Policy described in section 5(a)(2) of this order. The Department
of Justice shall be a full member of the Operating Committee of the Acep described
in section 5(a)(3) of this order, and of any other committees and consultation
groups reviewing export controls with respect to such encryption products."
(2) Sections 6 and 7 of Executive Order 12981 of December 5, 1995, are renumbered
as new sections 7 and 8, respectively.
(c) Because the export of encryption software, like the export of other encryption
products described in this section, must be controlled because of such software's
functional capacity, rather than because of any possible informational value
of such software, such software shall not be considered or treated as "technology,"
as that term is defined in section 16 of the Eaa (50 U.S.C. App. 2415) and
in the Ear (61 Fed. Reg. 12714, March 25, 1996);
(d) With respect to encryption products described in this section, the Secretary
shall take such actions, including the promulgation of rules, regulations,
and amendments thereto, as
may be necessary to control the export of assistance (including training)
to foreign persons in the same manner and to the same extent as the export
of such assistance is controlled under the Aeca, as amended by section 151
of Public Law 104-164;
(e) Appropriate controls on the export and foreign dissemination of encryption
products described in this section may include, but are not limited to, measures
that promote the
use of strong encryption products and the development of a key recovery management
infrastructure; and
(f) Regulation of encryption products described in this section shall be subject
to such further conditions as the President may direct.
Sec. 2. Effective Date. The provisions described in section 1 shall take effect
as soon as any encryption products described in section 1 are placed on the
Commerce Control List in the Ear.
Sec. 3. Judicial Review. This order is intended only to improve the internal
management of the executive branch and to ensure the implementation of appropriate
controls on the export and foreign dissemination of encryption products. It
is not intended to, and does not, create any rights to administrative or judicial
review, or any other right or benefit or trust
responsibility, substantive or procedural, enforceable by a party against
the United States, its agencies or instrumentalities, its officers or employees,
or any other person.
William J. Clinton
The White House,
November 15, 1996.