Testimony
of
Jerry J. Berman, Executive Director
Electronic Frontier Foundation
before the
Committee on Science, Space and Technology
Subcommittee on Technology, Environment and
Aviation
U.S. House of Representatives
Hearing on
Communications and Computer Surveillance, Privacy
and Security
May 3, 1994
Mr. Chairman and Members of the Committee
I want to thank you for the opportunity to testify today on
communications
and computer surveillance, privacy, and security policy. The Electronic
Frontier Foundation (EFF) is a public interest membership organization
dedicated to achieving the democratic potential of new communications
and computer technology and works to protect civil liberties in new
digital environments. EFF also coordinates the Digital Privacy and
Security Working Group (DPSWG), a coalition of more than 50 computer,
communications, and public interest organizations and associations
working on communications privacy issues. The Working Group has
strongly opposed the Administration's clipper chip and digital telephony
proposals.
EFF is especially pleased that this subcommittee has taken an
interest in these issues. It is our belief that Administration policy
developed in this area threatens individual privacy rights, will thwart
the development of the information infrastructure, and does not even
meet the stated needs of law enforcement and national security agencies.
A fresh and comprehensive look at these issues is needed.
I. Background on digital privacy and security policy
-------------------------------------------------------
From the beginning of the 1992 Presidential campaign, President
Clinton and Vice President Gore committed themselves to support the
development of the National Information Infrastructure. They recognize
that the "development of the NII can unleash an information revolution
that will change forever the way people live, work, and interact with
each other." They also know that the information infrastructure can
only realize its potential if users feel confident about security
measures available.
If allowed to reach its potential, this information infrastructure
will carry vital personal information, such as health care records,
private communications among friends and families, and personal
financial transactions. The business community will transmit valuable
information such as plans for new products, proprietary financial data,
and other strategic communications. If communications in the new
infrastructure are vulnerable, all of our lives and businesses would be
subject to both damaging and costly invasion.
In launching its Information Infrastructure Task Force (IITF) the
Clinton Administration recognized this when it declared that:
The trustworthiness and security of communications channels and
networks are essential to the success of the NII.... Electronic
information systems can create new vulnerabilities. For example,
electronic files can be broken into and copied from remote locations,
and cellular phone conversations can be monitored easily. Yet these
same systems, if properly designed, can offer greater security than
less advanced communications channels. [_Agenda_for_Action_, 9]
Cryptography -- technology which allows encoding and decoding of
messages -- is an absolutely essential part of the solution to
information security and privacy needs in the Information Age. Without
strong cryptography, no one will have the confidence to use networks to
conduct business, to engage in commercial transactions electronically,
or to transmit sensitive personal information. As the Administration
foresees, we need
network standards and transmission codes that facilitate
interconnection and interoperation between networks, and ensure the
privacy of persons and the security of information carried....
[_Agenda_for_Action_, 6]
While articulating these security and privacy needs, the Administration
has also emphasized that the availability of strong encryption poses
challenges to law enforcement and national security efforts. Though the
vast majority of those who benefit from encryption will be law abiding
citizens, some criminals will find ways to hide behind new technologies.
II. Current cryptography policy fails to meet the needs of
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the growing information infrastructure
----------------------------------------------
As a solution to the conflict between the need for user privacy
and the desire to ensure law enforcement access, the Administration has
proposed that individuals and organizations who use encryption deposit a
copy of their private key -- the means to decode any communications they
send -- with the federal government.
In our view, this is not a balanced solution but one that
undermines the need for security and privacy without resolving important
law enforcement concerns. It is up to the Congress to send the
Administration back to the drawing board.
A. Current Export Controls and New Clipper Proposal Stifle Innovation
------------------------------------------------------------------------
Two factors are currently keeping strong encryption out of the
reach of United States citizens and corporations. First, general
uncertainty about what forms of cryptography will and will not be legal
to produce in the future. Second, export controls make it economically
impossible for US manufacturers that build products for the global
marketplace to incorporate strong encryption for either the domestic or
foreign markets. Despite this negative impact on the US market, export
controls are decreasingly successful at limiting the foreign
availability of strong encryption. A recent survey shows that of the
more than 260 foreign encryption products now available globally, over
80 offer encryption which is stronger than what US companies are allowed
to export. Export controls do constrain the US market, but the
international market appears to be meeting its security needs without
help from US industry. The introduction of Clipper fails to address the
general uncertainty in the cryptography market. Announcement of a key
escrow policy alone is not sufficient to get the stalled US cryptography
market back on track.
B. The secrecy of the Clipper/Skipjack algorithm reduces public trust
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and casts doubt on the voluntariness of the whole system
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Many parties have already questioned the need for a secret
algorithm, especially given the existence of robust, public-domain
encryption techniques. The most common explanation given for use of a
secret algorithm is the need to prevent users from bypassing the key
escrow system proposed along with the Clipper Chip. Clipper has always
been presented by the Administration as a voluntary option. But if the
system is truly voluntary, why go to such lengths to ensure compliance
with the escrow procedure?
C. Current plans for escrow system offer inadequate technical
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security and insufficient legal protections for users
-----------------------------------------------------------
The implementation of a nationwide key escrow system is clearly a
complex task. But preliminary plans available already indicate several
areas of serious concern:
1. _No_legal_rights_for_escrow_users_: As currently written, the
escrow procedures insulate the government escrow agents from any legal
liability for unauthorized or negligent release of an individual's key.
This is contrary to the very notion of an escrow system, which
ordinarily would provide a legal remedy for the depositor whose
deposit is released without authorization. If anything, escrow agents
should be subject to strict liability for unauthorized disclosure of
keys.
2. _No_stability_in_escrow_rules_: The Administration has
specifically declared that it will not seek to have the escrow
procedures incorporated into legislation or official regulations.
Without formalization of rules, users have no guaranty that subsequent
administrations will follow the same rules or offer the users the same
degree of protection. This will greatly reduce the trust in the system.
3. _Fixed_Key_: A cardinal rule of computer security is that
encryption keys must be changed often. Since the Clipper keys are
locked permanently into the chips, the keys can never be changed. This
is a major technical weakness of the current proposal.
4. _Less_intrusive,_more_secure_escrow_alternatives_are_available_:
The Clipper proposal represents only one of many possible kinds of key
escrow systems. More security could be provided by having more
than two escrow agents. And, in order to increase public trust, some
or all of these agents could be non-governmental agencies, with the
traditional fiduciary duties of an escrow agent.
D. Escrow Systems Threaten Fundamental Constitutional Values
---------------------------------------------------------------
The Administration, Congress, and the public ought to have the
opportunity to consider the implications of limitations on cryptography
from a constitutional perspective. A delicate balance between
constitutional privacy rights and the needs of law enforcement has been
crafted over the history of this country. We must act carefully as we
face the constitutional challenges posed by new communication
technologies.
Unraveling the current encryption policy tangle must begin with
one threshold question: will there come a day when the federal
government controls the domestic use of encryption through mandated key
escrow schemes or outright prohibitions against the use of particular
encryption technologies? Is Clipper the first step in this direction?
A mandatory encryption regime raises profound constitutional questions.
In the era where people work for "virtual corporations" and
conduct personal and political lives in "cyberspace," the distinction
between _communication_ of information and _storage_ of information is
increasingly vague. The organization in which one works may constitute
a single virtual space, but be physically dispersed. So, the papers and
files of the organization or individual may be moved within the
organization by means of telecommunications technology. Instantaneous
access to encryption keys, without prior notice to the communicating
parties, may well constitute a secret search, if the target is a
virtual corporation or an individual whose "papers" are physically
dispersed.
Wiretapping and other electronic surveillance has always been
recognized as an exception to the fundamental Fourth Amendment
prohibition against secret searches. Even with a valid search warrant,
law enforcement agents must "knock and announce" their intent to search
a premises before proceeding. Failure to do so violates the Fourth
Amendment. Until now, the law of search and seizure has made a sharp
distinction between, on the one hand, _seizures_of_papers_ and other
items in a person's physical possession, and on the other hand,
_wiretapping_of_communications_. Seizure of papers or personal effects
must be conducted with the owner's knowledge, upon presentation of a
search warrant. Only in the exceptional case of wiretapping, may a
person's privacy be invaded by law enforcement without simultaneously
informing that person.
Proposals to regulate the use of cryptography for the sake of law
enforcement efficiency should be viewed carefully in the centuries old
tradition of privacy protection.
E. Voluntary escrow system will not meet law enforcement needs
-----------------------------------------------------------------
Finally, despite all of the troubling aspects of the Clipper
proposal, it is by no means clear that it will even solve the problems
that law enforcement has identified. The major stated rationale for
government intervention in the domestic encryption arena is to ensure
that law enforcement has access to criminal communications, even if they
are encrypted. Yet, a voluntary scheme seems inadequate to meet this
goal. Criminals who seek to avoid interception and decryption of their
communications would simply use another system, free from escrow
provisions. Unless a government-proposed encryption scheme is
mandatory, it would fail to achieve its primary law enforcement purpose.
In a voluntary regime, only the law-abiding would use the escrow system.
III. Recent policy developments indicate that Administration policy is
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bad for the NII, contrary to the Computer Security Act, and
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requires Congressional oversight
--------------------------------------
Along with the Clipper Chip proposal, the Administration announced
a comprehensive review of cryptography and privacy policy. Almost
immediately after the Clipper announcement, the Digital Privacy and
Security Working Group began discussions with the Administration on
issues raised by the Clipper proposal and by cryptography in general.
Unfortunately, this dialogue has been largely one-sided. EFF and many
other groups have provided extensive input to the Administration, yet
the Administration has not reciprocated -- the promised policy report
has not been forthcoming. Moreover, the National Security Agency and
the Federal Bureau of Investigation are proceeding unilaterally to
implement their own goals in this critical policy area.
Allowing these agencies to proceed unilaterally would be a grave
mistake. As this subcommittee is well aware, the Computer Security Act
of 1987 clearly established that neither military nor law enforcement
agencies are the proper protectors of personal privacy. When
considering the law, Congress asked, "whether it is proper for a super-
secret agency [the NSA] that operates without public scrutiny to involve
itself in domestic activities...?" The answer was a clear "no." Recent
Administration announcements regarding the Clipper Chip suggest that the
principle established in the 1987 Act has been circumvented.
As important as the principle of civilian control was in 1987, it
is even more critical today. The more individuals around the country
come to depend on secure communications to protect their privacy, the
more important it is to conduct privacy and security policy dialogues in
public, civilian forums.
The NII can grow into the kind of critical, national resource
which this Administration seeks to promote only if major changes in
current cryptography and privacy policy. In the absence of such
changes, digital technology will continue to rapidly render our
commercial activities and communications -- and, indeed, much of our
personal lives -- open to scrutiny by strangers. The Electronic
Frontier Foundation believes that Americans must be allowed access
to the cryptographic tools necessary to protect their own privacy.
We had hoped that the Administration was committed to making these
changes, but several recent developments lead us to fear that the effort
has been abandoned, leaving individual agencies to pursue their own
policy agendas instead of being guided by a comprehensive policy. The
following issues concern us:
* Delayed Cryptography Policy Report
----------------------------------------
The policy analysis called for along with the April 16, 1993
Presidential Decision Directive has not been released, though it was
promised to have been completed by early fall of 1993. We had hoped
that this report would be the basis for public dialogue on the important
privacy, competitiveness, and law enforcement issues raised by
cryptography policy. To date, none of the Administration's policy
rationale has been revealed to the public, despite the fact that
agencies in the Executive Branch are proceeding with their own plan
* Escrowed Encryption Federal Information Processing Standard (FIPS)
------------------------------------------------------------------------
approved against overwhelming weight of public comments
-------------------------------------------------------------
The Presidential Decision Directive also called for consideration of a
Federal Information Processing Standard (FIPS) for key-escrow
encryption systems. This process was to have been one of several
forums whereby those concerned about the proposed key-escrow system
could voice opinions. EFF, as well as over 225 of our individual
members, raised a number of serious concerns about the draft FIPS in
September of this 1993. EFF expressed its opposition to government
implementation of key-escrow systems as proposed. We continue to
oppose the deployment of Skipjack family escrow encryption systems
both because they violate fundamental First, Fourth, and Fifth
amendment principles, and because they fail to offer users adequate
security and flexibility.
Despite overwhelming opposition from over 300 commenters, the
Department of Commerce recently approved FIPS 185.
* Large-Scale Skipjack Deployment Announced
-----------------------------------------------
At the December 9, 1993 meeting of the Computer Systems Security and
Privacy Advisory Board, an NSA official announced plans to deploy from
10,000 to 70,000 Skipjack devices in the Defense Messaging System in
the near future. The exact size of the order was said to be dependent
only on budget constraints. The Administration is on record in the
national press promising that no large-scale Skipjack deployment would
occur until a final report of the Administration Task Force was
complete. Ten thousand units was set as the upper limit of initial
deployment. Skipjack deployment at the level planned in the Defense
Messaging System circumvents both the FIPS notice and comments process
which has been left in a state of limbo, as well as the Administration's
promise of a comprehensive policy framework.
* New FBI Digital Telephony Legislation Proposed
----------------------------------------------------
The FBI recently proposed a new "Digital Telephony" bill. After initial
analysis, we strongly oppose the bill, which would require all common
carriers to construct their networks to deliver to law enforcement
agencies, in real time, both the contents of all communications on their
networks and the "signaling" or transactional information.
In short, the bill lays the groundwork for turning the National
Information Infrastructure into a nation-wide surveillance system, to be
used by law enforcement with few technical or legal safeguards. This
image is not hyperbole, but a real assessment of the power of the
technology and inadequacy of current legal and technical privacy
protections for users of communications networks.
Although the FBI suggests that the bill is primarily designed to
maintain status quo wiretap capability in the face of technological
changes, in fact, it seeks vast new surveillance and monitoring tools.
Lengthy delays on the promised policy report, along with these
unilateral steps toward Clipper/Skipjack deployment, lead us to believe
that Administration policy is stalled by the Cold War-era national
security concerns that have characterized cryptography policy for the
last several decades.
EFF believes that it would be a disastrous error to allow national
information policy -- now a critical component of domestic policy -- to
be dictated solely by backward-looking national-security priorities and
unsubstantiated law-enforcement claims. The directions set by this
Administration will have a major impact on privacy, information
security, and the fundamental relationship between the government and
individual autonomy. This is why the Administration must take action--
and do so before the aforementioned agencies proceed further--to ensure
that cryptography policy is restructured to serve the
interests of privacy and security in the National Information
Infrastructure. We still believe the Administration can play the
leadership role it was meant to play in shaping this policy. If it does
not, the potential of the NII, and of fundamental civil liberties in the
information age, will be threatened.
IV. Congressional oversight of cryptography & privacy policy is
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urgently needed to right the balance between privacy,
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competitiveness & law enforcement needs
---------------------------------------------
All participants in this debate recognize that the need for
privacy and security is real, and that new technologies pose real
challenges for law enforcement and national security operations.
However, the solutions now on the table cripple the NII, pose grave
threats to privacy, and fail to even meet law enforcement objectives.
In our judgment, the Administration has failed, thus far, to articulate
a comprehensive set of policies which will advance the goals upon
which we all agree.
Congress must act now to ensure that cryptography policy is
developed in the context of the broader goal of promoting the
development of an advanced, interoperable, secure, information
infrastructure.
In order to meet the privacy and security needs of the growing
infrastructure, Congress should seek a set of public policies which
promote the widespread availability of cryptographic systems according
to the following criteria:
* Use Voluntary Standards to Promote Innovation and Meet
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Diverse Needs:
--------------------
The National Information Infrastructure stretches to
encompass devices as diverse as super computers, handheld personal
digital assistants and other wireless communications devices, and plain
old telephones. Communication will be carried over copper wires, fiber
optic cables, and satellite links. The users of the infrastructure will
range from elementary school children to federal agencies. Encryption
standards must be allowed to develop flexibly to meet the wide-ranging
needs all components of the NII. In its IITF Report, the Administration
finds that standards also must be compatible with the large installed
base of communications technologies, and flexible and adaptable enough
to meet user needs at affordable costs. [_AA_, 9] The diverse uses of
the NII require that any standard which the government seeks to promote
as a broadly deployed solution should be implementable in software as
well as hardware and based on widely available algorithms.
* Develop Trusted Algorithms and End-to-End Security:
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Assuring current and future users of the NII that their communications
are
secure and their privacy is protected is a critical task. This means
that the
underlying algorithms adopted must have a high level of public trust and
the overall systems put in place must be secure.
* Encourage National and International Interoperability:
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The promise of the NII is seamless national and international
communications of all types. Any cryptographic standard offered for
widespread use must allow US corporations and individuals to function as
part of the global economy and global communications infrastructure.
* Seek Reasonable Cooperation with Law Enforcement and National
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Security Needs:
---------------------
New technologies pose new challenges to law enforcement and national
security surveillance activities. American industry is committed to
working with law enforcement to help meet its legitimate surveillance
needs, but the development of the NII should not be stalled on this
account.
* Promote Constitutional Rights of Privacy and Adhere to Traditional
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Fourth Amendment Search and Seizure Rules:
------------------------------------------
New technology can either be a threat or an aid to protection of
fundamental privacy rights. Government policy should promote
technologies which enable individuals to protect their privacy and be
sure that those technologies are governed by laws which respect the
long history of constitutional search and seizure restraints.
* Maintain Civilian Control over Public Computer and
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Communications Security:
------------------------------
In accordance with the Computer Security Act of 1987, development of
security and privacy standards should be directed by the civilian
V. Conclusion
----------------
Among the most important roles that the federal government has in
NII deployment are setting standards and guaranteeing privacy and
security. Without adequate security and privacy, the NII will never
realize it economic or social potential. Cryptography policy must, of
course, take into account the needs of law enforcement and national
security agencies, but cannot be driven by these concerns alone. The
Working Group, along with other industry and public interest
organizations, is committed to working with the Administration to
solving the privacy and security questions raised by the growing NII.
This must be done based on the principles of voluntary standards,
promotion of innovation, concern for law enforcement needs, and
protection of constitutional rights of privacy.
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