A Chip Over My Shoulder:
The Problems With Clipper
Column for July 1994 issue of Internet World
By Mike Godwin
"Only in a police state is the job of a policeman easy."
--Orson Welles
Your government is deeply troubled by the possibility that you can keep a
secret.
Or, to put it more precisely, the government is disturbed by the prospect
of widespread powerful encryption tools in individual hands. Once you can
keep your communications and data truly secret, officials worry, the value
of wiretapping, an important law-enforcement and intelligence tool, will
evaporate.
It's unclear whether the government's arguments are valid. But regardless
of whether they are, the government's latest efforts to prevent us from
adopting powerful and uncrackable encryption technologies raise serious
questions about personal liberty, the role of government, and the
possibility of privacy in the 21st century.
If you're not already familiar with these efforts, here's an update. The
Clinton Administration has embarked on an ambitious plan to prevent a mass
market for uncrackable encryption from arising. The first step in this
plan has already been announced: the Administration has called for the
entire federal government to adopt the Clipper Chip--an encryption
standard with a "back door"--for communications and data security. In
addition, the government has declared its intention to use every legal
method short of outright prohibition to discourage alternative forms of
encryption technology.
"Just what is this Clipper Chip?" you may be wondering. The short answer
is: the chip is an encryption device, developed to National Security
Agency specs, that keeps your communications and data secret from everyone
... except the government.
To understand how the chip works, you need to look at what officials call
its "key escrow encryption method." Manufactured by a private company
called Mykotronix, the chip uses an NSA-developed algorithm called
"Skipjack, " which, by all accounts so far, is a remarkably powerful
algorithm. But the chip also includes the "feature" that its primary
encryption key can be divided up mathematically into two "partial keys."
The government proposes that each partial key be held by a separate
government agency--the Administration has picked the Department of the
Treasury and the National Institute of Standards and Technology
(NIST)--from which the keys can be retrieved when government officials
obtain a wiretap order.
The NSA and the FBI love this idea. With the Clipper Chip in your phone or
computer, they believe, you have the power to keep your information
private from crooks and industrial spies and anyone else who wants to
pry--except of course for law enforcement and the NSA. Law enforcement and
intelligence agencies would be barred from seeking those escrowed keys in
the absence of legal authorization, normally a court order. "And of course
you needn't worry about us," say government officials. "We're here to
protect you."
Chips Off the New Block
The current initiative has been a long time coming. It was in April of
last year the Clinton Administration first announced Clipper--the
announcement was met with a public outcry from civil-liberties and
industry groups. Civil libertarians were concerned about the government's
insistence on its need to prevent citizens from having access to truly
unbreachable privacy technologies. Computer and telecom industry leaders
worried about a standard that might crush a potentially vital market in
such technologies.
At first the Administration expressed a willingness to listen. The Digital
Privacy and Security Working Group, a coalition of industry and
public-interest organizations headed by the Electronic Frontier
Foundation, outlined its objections and expressed the hope of engaging in
talks with the Administration about the issue. In early February of this
year, however, the Clinton Administration and various agencies announced
to the world that, in spite of the grave misgivings of civil-liberties and
industry groups, it would be proposing the Clipper Chip's encryption
scheme as a new Federal Information Processing Standard (FIPS). The
standard, stresses the government, will be entirely "voluntary"--but the
government plans to use export-control laws and other methods to frustrate
the market for any competitive form of encryption technology.
Current export-control laws restrict the sales in foreign controls of
encryption hardware and software. The laws have not been entirely
effective in keeping commercial encryption technologies out of foreign
hands--it's possible these days to buy encryption products in Moscow, for
example. But the laws do succeed in deterring the American software
industry from developing powerful and easy-to-use encryption products,
since any company that does so is denied the right to sell the product on
the global market.
Still, if Clipper is voluntary, you may ask, what does it matter to
*individuals *what standard the government adopts? The government also
adopted the ADA programming language, after all, yet there are still
people programming in all sorts of languages, from BASIC to C++. The
answer is simple--"freedom of choice" is meaningful only if there are real
choices. The government's export-control strategy is designed to make sure
that there aren't any choices. If commercial software companies aren't
allowed to sell encryption to the world market, they're unlikely to
develop strong, easy-to-use alternatives to Clipper. And that means
individuals won't have access to alternatives.
Now, it's perfectly possible, in theory, to thwart the government-approved
Clipper scheme by using a non-commercial encryption application, such as
PGP, to pre-encrypt your messages before sending them through
Clipper-equipped devices. But PGP and other products, because of their
slowness or difficulty, are never likely to expand beyond the circle of
hobbyists that enthusiastically support them. For encryption products to
give rise to a genuine consumer market, they have to be quick and almost
transparently easy to use.
The government knows this, which is why their focus is on nipping
(clipping?) the commercial encryption software market in the bud. It's the
commercial market that really matters.
The government's side
When asked to substantiate the need for Clipper, or the threat of
unbreakable encryption, the government often talks about crime prevention.
As a practical matter, however, wiretaps are almost always used *after*
crimes are committed--to gather evidence about the individuals the
government already suspects to have been involved in a crime. So, the
hypothetical cases involving nuclear terrorism or murder-kidnappings
aren't really convincing--it's the rare case in which a wiretap prevents a
crime from occurring. As a practical matter, the single most important
asset to law enforcement is not wiretaps but informants. And nothing about
unbreakable encryption poses the risk that informants are going to
disappear.
One of the more rational statements of the government's case for Clipper
comes from my friend Trotter Hardy, a law professor at William and Mary,
who writes:
"The government's argument, I take it, is that the benefit is law
enforcement. That strikes me as at least as great a benefit as minimum
wage laws; perhaps more, since it protects everybody (at least in theory),
whereas [minimum] wage laws primarily benefit their recipients. Maybe EPA
regs are the better analogy: everybody gets reduced pollution; with
Clipper, everybody gets reduced criminal activity. Is that not a
reasonable trade-off?"
But the problem is that the government refuses to be forthcoming as to
what kind of trade-off we're talking about. According to government
statistics, there are fewer than 1000 state and federal law-enforcement
wiretaps per year, and only of a minority of these wiretaps leads to
convictions. Yet we are being asked to abandon the chance for true privacy
and to risk billions of dollars in trade losses when there has never been
shown to be any crime associated with uncrackable encryption whatsoever.
And we're also being asked to believe that the kind of criminals who are
smart enough to use encryption are dumb enough to choose the one kind of
encryption that the government is guaranteed to be able to crack.
Moreover, there are fundamental political issues at stake. This country
was founded on a principle of restraints on government. A system in which
the privacy of our communications is contingent on the good faith of the
government, which holds all the encryption keys, flies in the face of what
we have been taught to believe about the structure of government and the
importance of individual liberty.
In short, the government fails to make its case in two separate
ways--pragmatically and philosophically.
Trotter goes on to write:
".... I don't think the government cares whether an accountant in India
can password protect a spreadsheet. I would guess that even Clipper or
DES [the government's current Digital Encryption Standard] or whatever
would be more than enough protection for such a person. I think the
government cares that it be able to detect foreign intelligence that is
relevant to US security or interests. I am not sure where I come out on
the question, but at the very least it seems to me that the government is
reasonable in this desire."
Yet there are some premises here that need to be questioned. Do we really
suppose that "foreign intelligence" is dependent on the American software
industry to develop its encryption tools? Diffie-Helman public-key
encryption and DES are already available worldwide, yet Microsoft can't
export software that contains either form of encryption.
No, the real issue is that, to the extent that a mass market arises for
encryption products, it makes the NSA's job more difficult, and it may at
some future time make some investigations more difficult as well.
When asked to quantify the problem, however, the government invariably
begs off. Instead, 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
that I'd feel if there were a murder-kidnapping that couldn't be solved
because of the privilege against self-incrimination."
Which is to say, I understand that limits on government power entail a
loss in efficiency of law-enforcement investigations and
intelligence-agency operations. Nevertheless, there is a fundamental
choice we have to make about what kind of society we want to live in.
Open societies, and societies that allow individual privacy, are *less
safe*. But we have been taught to value liberty more highly than safety,
and I think that's a lesson well-learned.
What's more, we need to be able to engage in rational risk assessment, and
that's something that the government resists. Instead, the government
subscribes to the reasoning of Pascal's Wager. Pascal, you may recall,
argued that the rational man is a Christian, even if the chances that
Christianity is true are small. His reasoning is quasi-mathematical--even
if the chances of Christianity's truth are small, the consequences of
choosing not to be a Christian are (if that choice is incorrect)
infinitely terrible. Eternal torment, demons, flames, the whole works.
This is precisely the way that the government talks about nuclear
terrorism and murder-kidnappings. When asked what the probability is of
a) a nuclear terrorist, who b) decides to use encryption, and c) manages
otherwise to thwart counterterrorist efforts, they'll answer "What does
it matter what the probability is? Even one case is too much to risk!"
But we can't live in a society that defines its approach to civil
liberties in terms of infinitely bad but low-probability events. Open
societies are risky. Individual freedom and privacy are risky. If we are
to make a mature commitment to an open society, we have to acknowledge
those risks up front, and reaffirm our willingness to endure them.
We face a choice now. After a century of technological development that
has eroded our ability to keep our personal lives private, we finally
possess, thanks to cheap computing power and advances in cryptography, the
ability to take privacy into our own hands and make our own decisions
about how much, and how well, to protect it.
This prospect is frightening to a government that has come to rely on its
ability to reach into our private lives when it sees the need to do so.
But I have faith that our society is not dependent on our government's
right to mandate disclosure of our personal records and private
communications--that a mature society can tolerate a large degree of
personal privacy and autonomy.
It's a faith I hope you share.
