Encryption Special Report
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Chipping Away at a Fundamental Freedom?

By John Schwartz and John Mintz
Washington Post Staff Writers
Wednesday, March 2, 1994; Page F01

The hottest debate today about America's technology future is not technical. It boils down to this: Is it more important to protect society from the bad guys or to protect the privacy rights of all citizens – including those of the bad guys?

The question pits high-tech industries and civil libertarians against the Clinton administration. The White House is proposing a two-part strategy to guarantee that law enforcement agencies can continue to intercept and understand voice and data communications. The Clinton team is responding to law enforcement fears that new technologies make it relatively easy to avoid being tapped or to make unintelligible that which is intercepted.

One part of the White House strategy is Justice Department legislation to ensure that communications gear be easy to tap.

The second part is the administration's attempt to impose its so-called "Clipper Chip" as the standard for encryption, the scrambling of voice and data communications. The Clipper does a dandy job of encrypting, but also has a back door that law enforcement officers can slip through to listen in – assuming a court grants permission. Other encryption programs have no back door, and the government has been unable to crack some of them.

Both sides evoke nightmares about what would happen if they lose:

Law enforcement officials warn of future terrorists planning atrocities under a cloak of unbreakable codes.

Civil-liberties advocates see a high-tech Big Brother monitoring electronic transactions, from bank records to video-on-demand selections, along an information snooperhighway.

High-tech firms, which had had warm relations with the techno-hip Clinton-Gore team, warn that the plan could cripple the United States's technological edge by requiring that businesses adopted cumbersome government-mandated technologies.

"Clinton's blown off high tech the same way he blew off labor with NAFTA," wrote a California-based computer consultant who writes under the pseudonym "A. Lizard" for industry publications.

Cryptography already is important to banks and other businesses that engage in electronic transactions; millions of encryption packages have been sold.

Clipper is supposed to ensure that once investigators tap phones, they will be able to understand what's said.

"Crypto" is destined to become a consumer product, too, because it is "essential to privacy in the digital era," said Jerry Berman, executive director of the Electronic Frontier Foundation, a group that pushes for civil liberties in the high-tech arena.

But privacy can be dangerous in the wrong hands, government officials warn. The FBI and the National Security Agency (NSA) say the explosion of cellular phones, computer networks and encryption technology will all but prevent them from listening in on criminals and terrorists.

The Justice Department bill would require that access for wiretaps be made available in all communications gear. Firms that don't comply could be fined $10,000 a day, or be shut down.

FBI Director Louis J. Freeh said in a recent speech that advances in communications "make it impossible for the FBI to carry out court-approved surveillance in life-and-death cases" involving terrorists, drug dealers, spies and other criminals.

The FBI and NSA have long enjoyed broad legal and technological powers to snoop – to capture virtually any conversation or data transmission over phone lines, by cellular or cordless phone and with a variety of exotic methods.

The problem for police agencies now is that the new encryption technology is outrunning their ability to keep up with code-breaking or wiretapping requirements. In an attempt to make sure they stayed even, the agencies developed Clipper in the Bush administration and won the support of the Clinton team.

The administration's strategy to impose Clipper is aimed right at the bottom line. No one will be forced to buy Clipper, but government agencies will be required to use it and will buy it by the thousands and require their contractors to do the same. That establishes a standard that makes it tough for competing systems.

Additionally, the administration plans strict controls on the export of other encryption systems, but not Clipper. So U.S. encryption system manufacturers that do not use Clipper will be shut out of the biggest domestic market – the government – and the export market for those buyers who do not want to automatically grant access to the U.S. government.

"Basically, we're saying we're going to sell our phones and computers abroad with a note saying, 'All encrypted communications sent on this equipment are guaranteed to be available to the U.S. government upon its secret request,' " said Sen. Patrick J. Leahy (D-Vt.).

Leahy, who plans to hold hearings on Clipper, said, "I think the administration should go back to the drawing board on this one."

High-tech executives say overseas buyers will buy crypto systems already sold freely by foreign firms.

Sharon Webb, an Atlanta-based computer security consultant, estimates that as a global market for data security evolves, the stakes will be in the hundreds of billions of dollars. As firms try to stay in the market, "U.S. jobs and dollars will go overseas," she said.

The migration has begun. Maryland-based Trusted Information Systems opened European offices to develop encryption products that can't be exported from the United States. "The national security interests, which I understand and believe in strongly, wish things were the way they were 20 years ago," said CEO Stephen Walker, "and they are not."

But government officials say that if Clipper sells well, within a few years only the smartest criminals will recall that the government can break into Clipper devices. "There are a lot of stupid criminals out there," said Mike Nelson of the White House's Office of Science and Technology Policy.

White House officials say monitoring communications is a vital national asset in times of global trouble. "Even if there's a small chance {Clipper} will succeed," a White House technology policy source said, "you still have to do what you can to delay or mitigate the effects" of new technologies on law enforcement capabilities.

The spies won round one in the White House. Now, said Oliver Smoot, executive director of the Computer and Business Equipment Manufacturers Association, "the action's going to be over on the Hill."

Sen. Patty Murray (D-Wash.) and Rep. Maria Cantwell (D-Wash.), whose constituents include Microsoft Corp., are proposing legislation to liberalize export limitations for encryption.

Louis Rossetto, editor of hip, high-tech Wired magazine, compared the national security apparatus's struggle to that of Russian apparatchiks "trying to safeguard their institutional position." Rossetto said law-enforcement officials should concentrate more on developing future capabilities. "It's time for them to realize that the game is over," he said, "and ... to think about how they can really become useful in the future."

Clipper has sparked intense debate in cyberspace via a flood of electronic messages. Here's some recent discussion:

"Government spokespeople say, 'Well, how would you feel if there were a murder-kidnapping that we couldn't solve because of encryption?' To which my answer is, 'Well, I'd feel about the same way if there were a murder-kidnapping that couldn't be solved because of the privilege against self-incrimination. . .'" – Michael Godwin, an attorney for the Electronics Frontier Foundation

"I'm definitely sympathetic to privacy worries, but I can't help feeling that much of the tekkie anti-Clipper talk is motivated less by concern for privacy than by brattishness, which is a cherished tradition in this community. Sorry, the government does have a legitimate interest in catching criminals . . . I felt this way even before I got blown up, by the way." – David Gelernter, a Yale University computer scientist seriously injured in a terrorist bombing last year

© Copyright 1998 The Washington Post Company

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