By Rajiv Chandrasekaran
Under Freeh's plan, the decoding technology would have to be built into the software, but savvy computer users could legally deactivate the technology, allowing them to transmit data that would be inaccessible to authorities. Authorities, however, assume that most messages would be sent in the crackable form.
Freeh's comments reflect a new, more forceful stance on the use of encryption technology within the United States. His position is contrary to statements by President Clinton and Vice President Gore earlier this year that the Clinton administration would stay with a long-standing policy of imposing no rules on sales of any such products in the United States. Exports of the products are regulated, however.
A White House official said last night that "the administration has not formally endorsed" Freeh's position. His comments, however, drew strong criticism from the software industry, which called the proposal costly and unworkable.
At a hearing of the Senate Judiciary subcommittee on technology, terrorism and government information, Freeh also called for regulations that would require online service providers to set their networks so that law enforcement authorities could easily intercept communications.
Privacy advocates contend that the United States should have no rules restricting encryption software. The technology is the only way people will be able to assure confidentiality of personal information in the electronic age, they contend.
Freeh said that legislation being considered by the Senate should "require the manufacturers of encryption products and services those which will be used in the United States or imported into the United States for use include a feature which would allow for the immediate, lawful decryption of the communications or the electronic information once that information is found by a judge to be in furtherance of a criminal activity or a national security matter." Freeh made his comments in response to a question posed by Sen. Dianne Feinstein (D-Calif.).
Feinstein questioned whether Freeh's approach, which would allow the code-breaking technology to be turned off, would amount to a "a massive loophole that everyone would take advantage of." But Freeh called his proposal "a step forward" that would improve the odds of authorities accessing coded messages.
Freeh told the committee he would favor requiring people who send encrypted messages to use technology that would allow the communications to be unscrambled, saying it "would be the best law enforcement solution." He conceded, however, that such a rule would be impossible to enact because of opposition from industry groups and many in Congress.
Freeh's stance prompted complaints from the software industry.
"The impact is going to be clear," said Lauren Hall, an official with the Software Publishers Association, a Washington-based trade group. "It's going to be very expensive, and it's going to raise the price of software. Adding these features are not as simple as flipping a switch."
Becca Gould, the vice president for public policy at the Business Software Alliance, another industry group in Washington, called the director's statement "horrible."
"It's basically saying the government should have a back-door key to all private citizens' records," Gould said.
Gould added that adding such a feature to all software that uses encryption technology would not be feasible. "It would be awfully complex," she said.
The software industry has long complained about the government's export restrictions, which require firms exporting high-powered encryption products to put aside electronic "keys" that intelligence agencies could use to descramble data. The industry says this puts U.S. firms at a disadvantage in competition with foreign companies that have no such controls. Administration officials say the ability to unscramble files is a necessary tool in the fight against terrorism and other crimes.
The subcommittee is considering a bill introduced by Sens. John F. Kerry (D-Mass.) and John McCain (R-Ariz.) that would loosen export restrictions on encryption software but provide incentives to have companies make the decoding keys available to law enforcement. The administration supports the legislation but it is opposed by much of the software industry.