forward: Cu Digest, #5.43 -- 2600 & CPSR House Subcommittee Testimony

Emmanuel's comments are somewhat disturbing...

Computer underground Digest Sun June 13 1993 Volume 5 : Issue 43 ISSN 1004-043X

Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET) Archivist: Brendan Kehoe Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Copy Editor: Etaoin Shrdlu, Seniur

CONTENTS, #5.43 (June 13 1993) File 1--Hacker testimony to House subcommittee largely unheard File 2--CPSR Clipper Testimony (6-9-93) in House Subcommittee

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Date: Thu, 10 Jun 1993 16:53:48 -0700 From: Emmanuel Goldstein <emmanuel@WELL.SF.CA.US> Subject: File 1--Hacker testimony to House subcommittee largely unheard

What follows is a copy of my written testimony before the House Subcommittee on Telecommunications and Finance. The June 9th hearing was supposed to have been on the topic of network security, toll fraud, and the social implications of the rapidly emerging technologies. I was asked to speak for those who had no voice, which translates to hackers and consumers. Instead I found myself barraged with accusations from the two representatives in attendance (Rep. Ed Markey D-MA and Rep. Jack Fields R-TX) who considered 2600 Magazine (of which I'm the editor) nothing more than a manual for computer crime. One article in particular that Markey latched upon was one in our Spring issue that explained how a cable descrambler worked. According to Markey, there was no use for this information outside of a criminal context. Fields claimed we were printing cellular "codes" that allowed people to listen in on cellular calls. In actuality, we printed frequencies. The difference didn't seem to matter - after explaining it to him, he still said he was very disturbed by the fact that I was allowed to keep publishing. It soon became apparent to me that neither one had read my testimony as there seemed to be no inclination to discuss any of the issues I had brought up. In a way, it was very much like being on the Geraldo show. Somehow I thought elected representatives would be less sensationalist and more interested in learning but this was not the case here. We got absolutely nowhere. Markey in particular was rude, patronizing, and not at all interested in entertaining any thought outside his narrow perception. It's too bad this opportunity was lost. There is a real danger in elected officials who don't listen to all relevant opinions and who persist in sticking to old-fashioned, outdated notions that just don't apply to high technology. You can look forward to more restrictive regulations and higher penalties for violating them if this mentality continues to dominate.

+++++++++++++++++++ WRITTEN TESTIMONY FOLLOWS:

Mr. Chairman, members of the Committee, thank you for the opportunity to speak on the issue of the rapid growth and changes in the telecommunications industry.

My name is Emmanuel Goldstein and I am the publisher of 2600 Magazine, which is a journal for computer hackers as well as anyone else who happens to be interested in the direction that technology is taking us. We tend to be brutally honest in our assessments and, as a result, we do get some corporations quite angry at us. But we've also managed to educate a large number of people as to how their telephone system works, what kinds of computers may be watching them, and how they can shape technology to meet their needs, rather than be forced to tailor their existence to meet technology's needs.

I am also the host of a weekly radio program called Off The Hook which airs over WBAI in New York. Through that forum we have discovered the eagerness and curiosity that many "ordinary people on the street" possess for technology. At the same time we have seen fears and suspicions expressed that would be unwise to ignore.

HOW TO HANDLE RAPIDLY CHANGING TECHNOLOGY

The next few years will almost certainly go down in history as those in which the most change took place in the least amount of time. The computer and telecommunications revolution that we are now in the midst of is moving full speed ahead into unknown territory. The potential for amazing advances in individual thought and creativity is very real. But so is the potential for oppression and mistrust the likes of which we have never before seen. One way or the other, we will be making history.

I think we can imagine it best if we think of ourselves speeding down a potentially dangerous highway. Perhaps the road will become slick with ice or fraught with sharp curves. It's a road that nobody has gone down before. And the question we have to ask ourselves is what kind of a vehicle would we prefer to be in if things should start getting out of control: our own automobile where we would have at least some chance of controlling the vehicle and bringing it down to a safe speed or a bus where we, along with many others, must put all of our trust behind a total stranger to prevent a disaster. The answer is obviously different depending on the circumstances. There are those of us who do not want the responsibility of driving and others who have proven themselves unworthy of it. What's important is that we all have the opportunity at some point to choose which way we want to go.

Rapidly changing technology can also be very dangerous if we don't look where we're going or if too many of us close our eyes and let someone else do the driving. This is a ride we all must stay awake for.

I am not saying we should be overly suspicious of every form of technology. I believe we are on the verge of something very positive. But the members of this committee should be aware of the dangers of an uninformed populace. These dangers will manifest themselves in the form of suspicion towards authority, overall fear of technology, and an unhealthy feeling of helplessness.

HOW NEW TECHNOLOGY CAN HURT US

The recent FBI proposal to have wiretap capabilities built into digital telephone systems got most of its publicity because American taxpayers were expected to foot the bill. But to many of the non-technical people I talked to, it was just another example of Big Brother edging one step closer. It is commonly believed that the National Security Agency monitors all traffic on the Internet, not to mention all international telephone calls. Between Caller ID, TRW credit reports, video cameras, room monitors, and computer categorizations of our personalities, the average American feels as if life no longer has many private moments. Our Social Security numbers, which once were for Social Security, are now used for everything from video rentals to driver's licenses. These numbers can easily be used to track a person's location, expenses, and habits - all without any consent. If you know a person's name, you can get their telephone number. If you have their phone number, you can get their address. Getting their Social Security number is not even a challenge anymore. With this information, you can not only get every bit of information about this person that exists on any computer from Blockbuster Video to the local library to the phone company to the FBI, but you can begin to do things in this poor person's name. It's possible we may want a society like this, where we will be accountable for our every movement and where only criminals will pursue privacy. The American public needs to be asked. But first, they need to understand.

In Germany, there is a fairly new computerized system of identity cards. Every citizen must carry one of these cards. The information includes their name, address, date of birth, and nationality - in other words, the country they were originally born in. Such a system of national identity can be quite useful, but in the wrong hands it can be extremely scary. For example, if a neo-Nazi group were to somehow get their hands on the database, they could instantly find out where everyone of Turkish nationality lived. A malevolent government could do the same and, since not carrying the card would be a crime, it would be very hard to avoid its wrath.

Before introducing a new technology that is all-encompassing, all of its potential side-effects and disadvantages should be discussed and addressed. Opportunities must exist for everyone to ask questions. In our own country, nobody was ever asked if they wanted a credit file opened on them, if they wanted to have their phone numbers given to the people and companies they called through the use of Caller ID and ANI, or if they wanted to be categorized in any manner on numerous lists and databases. Yet all of this has now become standard practice.

This implementation of new rules has resulted in a degree of cynicism in many of us, as well as a sense of foreboding and dread. We all know that these new inventions will be abused and used to somebody's advantage at some point. There are those who would have us believe that the only people capable of such misdeeds are computer hackers and their ilk. But it just isn't that simple.

UNDERSTANDING COMPUTER HACKERS

To understand computer hackers, it helps to think of an alien culture. We have such cultures constantly around us - those with teenage children ought to know what this means. There are alien cultures of unlimited varieties throughout the globe, sometimes in the most unexpected places. I'm convinced that this is a good thing. Unfortunately, all too often our default setting on whatever it is we don't understand is "bad". Suspicion and hostility follow and are soon met with similar feelings from the other side. This has been going on between and within our cultures for as long as we've existed. While we can't stop it entirely, we can learn to recognize the danger signs. The best way that I've found to deal with an alien culture, whether it's in a foreign country or right here at home, is to try and appreciate it while giving it a little leeway. There is not a single alien culture I've encountered that has not been decidedly friendly. That includes deadheads, skateboarders, Rastafarians, and hackers.

When we talk about computer hackers, different images spring to mind. Most of these images have come about because of perceptions voiced by the media. Too often, as I'm sure the members of this committee already suspect, the media just doesn't get it. This is not necessarily due to malice on their part but rather a general lack of understanding and an overwhelming pressure to produce a good story. Hence we get an abundance of sensationalism and, when the dust clears, hackers are being compared with bank robbers, mobsters, terrorists, and the like. It's gotten to the point that the word hacker is almost analogous to the word criminal.

Fortunately, the media is learning. Reporters now approach hackers with a degree of technological savvy. For the most part, they have stopped asking us to commit crimes so they can write a story about it. As the technology envelops us, journalists are developing the same appreciation and curiosity for it that hackers have always had. Any good reporter is at least part hacker because what a hacker does primarily is relentlessly pursue an answer. Computers naturally lend themselves to this sort of pursuit, since they tend to be very patient when asked a lot of questions.

WHAT CONSTITUTES A HI-TECH CRIME?

So where is the boundary between the hacker world and the criminal world? To me, it has always been in the same place. We know that it's wrong to steal tangible objects. We know that it's wrong to vandalize. We know that it's wrong to invade somebody's privacy. Not one of these elements is part of the hacker world.

A hacker can certainly turn into a criminal and take advantage of the weaknesses in our telephone and computer systems. But this is rare. What is more likely is that a hacker will share knowledge with people, one of whom will decide to use that knowledge for criminal purposes. This does not make the hacker a criminal for figuring it out. And it certainly doesn't make the criminal into a hacker.

It is easy to see this when we are talking about crimes that we understand as crimes. But then there are the more nebulous crimes; the ones where we have to ask ourselves: "Is this really a crime?" Copying software is one example. We all know that copying a computer program and then selling it is a crime. It's stealing, plain and simple. But copying a program from a friend to try it out on your home computer -- is this the same kind of crime? It seems obvious to me that it is not, the reason being that you must make a leap of logic to turn such an action into a crime. Imagine if we were to charge a licensing fee every time somebody browsed through a magazine at the local bookshop, every time material was borrowed from a library, or every time a phone number was jotted down from the yellow pages. Yet, organizations like the Software Publishers Association have gone on record as saying that it is illegal to use the same computer program on more than one computer in your house. They claim that you must purchase it again or face the threat of federal marshalls kicking in your door. That is a leap of logic.

It is a leap of logic to assume that because a word processor costs $500, a college student will not try to make a free copy in order to write and become a little more computer literate. Do we punish this student for breaking a rule? Do we charge him with stealing $500? To the hacker culture on whose behalf I am speaking today, the only sensible answer is to make it as easy as possible for that college student to use the software he needs. And while we're at it, we should be happy that he's interested in the first place.

Of course, this represents a fundamental change in our society's outlook. Technology as a way of life, not just another way to make money. After all, we encourage people to read books even if they can't pay for them because to our society literacy is a very important goal. I believe technological literacy is becoming increasingly important. But you cannot have literacy of any kind without having access.

If we continue to make access to technology difficult, bureaucratic, and illogical, then there will also be more computer crime. The reason being that if you treat someone like a criminal, they will begin to act like one. If we succeed in convincing people that copying a file is the same as physically stealing something, we can hardly be surprised when the broad-based definition results in more overall crime. Blurring the distinction between a virtual infraction and a real-life crime is a mistake.

LEGISLATION FOR COMPUTER AGE CRIME

New laws are not needed because there is not a single crime that can be committed with a computer that is not already defined as a crime without a computer. But let us not be loose with that definition. Is mere unauthorized access to a computer worthy of federal indictments, lengthy court battles, confiscation of equipment, huge fines, and years of prison time? Or is it closer to a case of trespassing, which in the real world is usually punished by a simple warning? "Of course not," some will say, "since accessing a computer is far more sensitive than walking into an unlocked office building." If that is the case, why is it still so easy to do? If it's possible for somebody to easily gain unauthorized access to a computer that has information about me, I would like to know about it. But somehow I don't think the company or agency running the system would tell me that they have gaping security holes. Hackers, on the other hand, are very open about what they discover which is why large corporations hate them so much. Through legislation, we can turn what the hackers do into a crime and there just might be a slim chance that we can stop them. But that won't fix poorly designed systems whose very existence is a violation of our privacy.

THE DANGERS OF UNINFORMED CONSUMERS

The concept of privacy is something that is very important to a hacker. This is so because hackers know how fragile privacy is in today's world. Wherever possible we encourage people to protect their directories, encrypt their electronic mail, not use cellular phones, and whatever else it takes to keep their lives to themselves. In 1984 hackers were instrumental in showing the world how TRW kept credit files on millions of Americans. Most people had never even heard of a credit file until this happened. Passwords were very poorly guarded - in fact, credit reports had the password printed on the credit report itself. More recently, hackers found that MCI's Friends and Family program allowed anybody to call an 800 number and find out the numbers of everyone in a customer's "calling circle". As a bonus, you could also find out how these numbers were related to the customer: friend, brother, daughter-in-law, business partner, etc. Many times these numbers were unlisted yet all that was needed to "verify" the customer's identity was the correct zip code. In both the TRW and MCI cases, hackers were ironically accused of being the ones to invade privacy. What they really did was help to educate the American consumer.

Nowhere is this more apparent than in the telephone industry. Throughout the country, telephone companies take advantage of consumers. They do this primarily because the consumer does not understand the technology. When we don't understand something complicated, we tend to believe those who do understand. The same is true for auto mechanics, plumbers, doctors, and lawyers. They all speak some strange language that the majority of us will never understand. So we tend to believe them. The difference with the phone companies, and here I am referring to the local companies, is that you cannot deal with somebody else if you happen to disagree with them or find them untrustworthy. The phone companies have us in a situation where we must believe what they say. If we don't believe them, we cannot go elsewhere.

This is the frustration that the hacker community constantly faces. We face it especially because we are able to understand when the local phone companies take advantage of consumers. Here are a few examples:

Charging a fee for touch tone service. This is a misnomer. It actually takes extra effort to tell the computer to ignore the tones that you produce. Everybody already has touch tone capability but we are forced to pay the phone company not to block it. While $1.50 a month may not seem like much, when added together the local companies that still engage in this practice are making millions of dollars a year for absolutely nothing. Why do they get away with it? Because too many of us don't understand how the phone system works. I try to draw an analogy in this particular case - imagine if the phone company decided that a fee would be charged to those customers who wanted to use the number five when dialing. They could argue that the five takes more energy than the four but most of us would see through this flimsy logic. We must seek out other such dubious practices and not blindly accept what we are told.

Other examples abound: being charged extra not to have your name listed in the telephone directory, a monthly maintenance charge if you select your own telephone number, the fact that calling information to get a number now costs more than calling the number itself.

More recently, we have become acquainted with a new standard called Signalling System Seven or SS7. Through this system it is possible for telephones to have all kinds of new features: Caller ID, Return Call, Repeat Calling to get through a busy signal, and more. But again, we are having the wool pulled over our eyes. For instance, if you take advantage of Call Return in New York (which will call the last person who dialed your number), you are charged 75 cents on top of the cost of the call itself. Obviously, there is a cost involved when new technologies are introduced. But there is no additional equipment, manpower, or time consumed when you dial *69 to return a call. It's a permanent part of the system. As a comparison, we could say that it also costs money to install a hold button. Imagine how we would feel if we were charged a fee every time we used it.

The local companies are not the only offenders but it is particularly bad in their case because, for the vast majority of Americans, there is no competition on this level. The same complaints are being voiced concerning cable television companies.

Long distance telephone companies are also guilty. AT&T, MCI, and Sprint all encourage the use of calling cards. Yet each imposes a formidable surcharge each and every time they're used. AT&T, for example, charges 13 cents for the first minute of a nighttime call from Washington DC to New York plus an 80 cent surcharge. Since a calling card can only be used to make telephone calls, why are consumers expected to pay an extra fee as if they were doing something above and beyond the normal capability of the card? Again, there is no extra work necessary to complete a calling card call - at least not on the phone company's part. The consumer, on the other hand, must enter up to 25 additional digits. But billing is accomplished merely by computers sending data to each other. Gone are the days of tickets being written up by hand and verified by human beings. Everything is accomplished quickly, efficiently, and cheaply by computer. Therefore, these extra charges are outdated.

SOCIAL INJUSTICES OF TECHNOLOGY

The way in which we have allowed public telephones to be operated is particularly unfair to those who are economically disadvantaged. A one minute call to Washington DC can cost as little as 12 cents from the comfort of your own home. However, if you don't happen to have a phone, or if you don't happen to have a home, that same one minute call will cost you $2.20. That figure is the cheapest rate there is from a Bell operated payphone. With whatever kind of logic was used to set these prices, the results are clear. We have made it harder and more expensive for the poor among us to gain access to the telephone network. Surely this is not something we can be proud of.

A direct result of this inequity is the prevalence of red boxes. Red boxes are nothing more than tone generators that transmit a quick burst of five tones which convince the central office that a quarter has been deposited. It's very easy and almost totally undetectable. It's also been going on for decades. Neither the local nor long distance companies have expended much effort towards stopping red boxes, which gives the impression that the payphone profits are still lucrative, even with this abuse. But even more troubling is the message this is sending. Think of it. For a poor and homeless person to gain access to something that would cost the rest of us 12 cents, they must commit a crime and steal $2.20. This is not equal access.

CORPORATE RULES

Hackers and phone phreaks, as some of us are called, are very aware of these facts. We learn by asking lots of questions. We learn by going to libraries and doing research. We learn by diving into phone company trash dumpsters, reading discarded material, and doing more research. But who will listen to people like us who have been frequently characterized as criminals? I am particularly grateful that this committee has chosen to hear us. What is very important to us is open communications. Freedom of information. An educated public.

This puts us at direct odds with many organizations, who believe that everything they do is "proprietary" and that the public has no right to know how the public networks work. In July of 1992 we were threatened with legal action by Bellcore (the research arm of the Regional Bell Operating Companies) for revealing security weaknesses inherent in Busy Line Verification (BLV) trunks. The information had been leaked to us and we did not feel compelled to join Bellcore's conspiracy of silence. In April of this year, we were threatened with legal action by AT&T for printing proprietary information of theirs. The information in question was a partial list of the addresses of AT&T offices. It's very hard for us to imagine how such information could be considered secret. But these actions are not surprising. They only serve to illustrate the wide disparities between the corporate mindset and that of the individual. It is essential that the hundreds of millions of Americans who will be affected by today's all-encompassing inventions not be forced to play by corporate rules.

In 1990 a magazine similar to 2600 was closed down by the United States government because Bell South said they printed proprietary information. Most people never found out about this because Phrack Magazine was electronic, i.e., only available on computer bulletin boards and networks. This in itself is wrong; a publication must have the same First Amendment rights regardless of whether it is printed electronically or on paper. As more online journals appear, this basic tenet will become increasingly critical to our nation's future as a democracy. Apart from this matter, we must look at what Bell South claimed - that a document discussing the Enhanced 911 system which was worth $79,449 had been "stolen" and printed by Phrack. (Some newspaper accounts even managed to change it into an E911 program which gave the appearance that hackers were actually interfering with the operation of an E911 system and putting lives at risk. In reality there has never been a report of a hacker gaining access to such a system.) It was not until after the publisher of Phrack was forced to go to trial that the real value of the document was revealed. Anyone could get a copy for around $14. The government promptly dropped its case against the publisher who, to this day, is still paying back $100,000 in legal fees. As further evidence of the inquity between individual justice and corporate justice, Bell South was never charged with fraud for its claim that a $14 document was worth nearly $80,000. Their logic, as explained in a memo to then Assistant U.S. Attorney Bill Cook, was that the full salaries of everyone who helped write the document, as well as the full cost of all hardware and software used in the endeavor ($31,000 for a Vaxstation II, $6,000 for a printer), was perfectly acceptable. It is very disturbing that the United States government agreed with this assessment and moved to put a pre-law student behind bars for violating corporate rules.

MISGUIDED AUTHORITY

I wish I could stand before this committee and say that we have been successful in stopping all such miscarriages of justice. While the Phrack case may have been the most bizarre, there are many more instances of individuals being victimized in similar manners. A teenager in Chicago was jailed for a year for copying a file that was worth millions, according to AT&T, but was utterly worthless and unusable to a kid. A bulletin board operator in California, along with his entire family, was held at gunpoint for hours while authorities seized his equipment in an unsuccessful attempt to find child pornography. Three hackers in Atlanta, after being imprisoned up to a year for dialing into a Bell South computer system that had no password, were forced to pay $233,000 in restitution so the company could install a password system. More recently, a student at the University of Texas at Houston was suspended from school for a year because he accessed a file that merely listed the users of the system (a file which the system allows all users to access). In increasing numbers, young people are being sent to jail, not necessarily for something they did, but rather for something they could have done in a worst-case scenario. Again this indicates fear and misunderstanding of technology and its applications. But this time those feelings emanate from those in authority.

Locally, an ominous happening occurred at a 2600 monthly meeting last November. (These meetings occur in public areas in cities throughout the nation on the first Friday of every month.) Shortly after it began, the Washington meeting was broken up by Pentagon City Mall security guards. Without any provocation, people were forced to submit to searches and everybody's name was taken down. One of the attendees who was writing down an officer's name had the paper ripped from his hand, another had his film taken from his camera as he tried to document what was going on. Upon questioning by a reporter from Communications Daily, the mall security chief claimed that he was acting under orders from the United States Secret Service. Subsequent Freedom of Information Act requests by Computer Professionals for Social Responsibility have yielded more evidence implicating the Secret Service in this illegal and unwarranted action. Nothing of a criminal nature was ever found in any of the bags that were searched. But a full list of the attendees wound up in the possession of the Secret Service. It seems ironic that while hackers are conducting an open gathering in the middle of a shopping mall in order to share knowledge and welcome new people, agents of the Secret Service are lurking in the shadows trying to figure out ways to stop them.

How can we move forward and talk about exciting new applications of technology when we're off to such a bad start? The people that are being arrested, harassed, and intimidated are the people who will be designing and running these new systems. They are the ones who will appreciate their capabilities and understand their weaknesses. Through our short-sightedness and eagerness to listen to the loudest voices, we are alienating the promises of the future. How many here, who grew up in decades past, remember hearing teenagers talk of how the government is after them, watching their every move, listening to their phone calls, doing everything one might expect in a totalitarian regime. Such feelings are the sure sign of an ailing society. It does not matter if these things are not actually occurring - their mere perception is enough to cause lasting harm and mistrust.

PROMISE OF THE INTERNET

The future holds such enormous potential. It is vital that we not succumb to our fears and allow our democratic ideals and privacy values to be shattered. In many ways, the world of cyberspace is more real than the real world itself. I say this because it is only within the virtual world that people are really free to be themselves - to speak without fear of reprisal, to be anonymous if they so choose, to participate in a dialogue where one is judged by the merits of their words, not the color of their skin or the timbre of their voice. Contrast this to our existing "real" world where we often have people sized up before they even utter a word. The Internet has evolved, on its own volition, to become a true bastion of worldwide democracy. It is the obligation of this committee, and of governments throughout the world, not to stand in its way.

This does not mean we should stand back and do nothing. Quite the contrary, there is much we have to do if accessibility and equality are our goals. Over-regulation and commercialization are two ways to quickly kill these goals. A way to realize them is to have a network access point in every house. Currently, network access is restricted to students or professors at participating schools, scientists, commercial establishments, and those who have access to, and can afford, local services that link into the Internet. Yes, a lot of people have access today. But a far greater number do not and it is to these people that we must speak. The bigger the Internet gets, the better it gets. As it exists today, cultures from around the globe are represented; information of all kinds is exchanged. People are writing, reading, thinking. It's potentially the greatest educational tool we have. Therefore, it is essential that we not allow it to become a commodity that only certain people in society will be able to afford. With today's technology, we face the danger of widening the gap between the haves and the have-nots to a monumental level. Or we can open the door and discover that people really do have a lot to learn from each other, given the opportunity.

It is my hope that this committee will recognize the importance of dialogue with the American public, in order to answer the questions so many are asking and to address the concerns that have been overlooked. I thank you for this opportunity to express those issues that I feel relevant to this hearing.

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Date: Sat, 12 Jun 1993 12:30:38 EST From: Dave Banisar <banisar@WASHOFC.CPSR.ORG> Subject: File 2--CPSR Clipper Testimony (6-9-93) in House Subcommittee

CPSR Clipper Testimony 6/9

On June 9, 1993, Congressman Edward Markey, Chairman of the House Subcommittee on Telecommunications and Finance held an oversight hearing on Rencryption and telecommunications network security. Panelists were Whitfield Diffie of Sun Microsystems, Dr. Dorothy Denning, Steven Bryen of Secure Communications, Marc Rotenberg of the CPSR Washington Office and E.R. Kerkeslager of AT&T.

Congressman Markey, after hearing the testimony presented, noted that the Clipper proposal had raised an arched eyebrow among the whole committeeS and that the committee viewed the proposal skeptically. This statement was the latest indication that the Clipper proposal has not been well received by policy makers. Last Friday, the Computer Systems Security and Privacy Advisory Board of NIST issued two resolutions critical of the encryption plan, suggesting that further study was required and that implementation of the plan should be delayed until the review is completed.

At the Third CPSR Cryptography and Privacy Conference on Monday, June 7, the Acting Director of NIST, Raymond Kammer, announced that the implementation of the proposal will be delayed and that a more comprehensive review will be undertaken. The review is due in the fall. Kammer told the Washington Post that Rmaybe we wonUt continue in the direction we started ous.

+-------------------------------------------------

Prepared Testimony and Statement for the Record of Marc Rotenberg, director CPSR Washington Office on Encryption Technology and Policy Before The Subcommittee on Telecommunications and Finance. Committee on Energy and Commerce

U.S. House of Representatives June 9, 1993

SUMMARY

The cryptography issue is of particular concern to CPSR. During the past several years CPSR has pursued an extensive study of cryptography policy in the United States. CPSR has organized public conferences, conducted litigation under the Freedom of Information Act, and has emphasized the importance of cryptography for privacy protection and the need to scrutinize carefully government proposals designed to limit the use of this technology. To evaluate the Clipper proposal it is necessary to look at a 1987 law, the Computer Security Act, which made clear that in the area of unclassified computing systems, the National Institute of Standards and Technology (NIST) and not the National Security Agency (NSA), would be responsible for the development of technical standards. The Act emphasized public accountability and stressed open decision-making. In the spirit of the Act, in 1989 NIST set out to develop a public key cryptography standard. According to documents obtained by CPSR through the Freedom of Information Act, NIST recommended that the algorithm be "public, unclassified, implementable in both hardware or software, usable by federal Agencies and U.S. based multi-national corporation." However, the Clipper proposal and the full-blown Capstone configuration that resulted is very different: the Clipper algorithm, Skipjack, is classified; public access to the reasons underlying the proposal is restricted; Skipjack can be implemented only in tamper-proof hardware; it is unlikely to be used by multi-national corporations, and the security of Clipper remains unproven. The Clipper proposal undermines the central purpose of the Computer Security Act. Although intended for broad use in commercial networks, it was not developed at the request of either U.S. business or the general public. It does not reflect public goals. The premise of the Clipper key escrow arrangement is that the government must have the ability to intercept electronic communications. However, there is no legal basis to support this premise. In law there is nothing inherently illegal or suspect about the use of a telephone. The federal wiretap statute says only that communication service providers must assist law enforcement execute a lawful warrant. CPSR supports the review of cryptography policy currently underway at the Department of Commerce. CPSR also supports the efforts undertaken by the Subcommittee on Telecommunications and Finance to study the full ramifications of the Clipper proposal. However, we are not pleased about the review now being undertaken at the White House. That effort has led to a series of secret meetings, has asked that scientists sign non-disclosure agreements and accept restrictions on publication, and has attempted to resolve public concerns through private channels. This is not a good process for the evaluation of a technology that is proposed for the public switched network. Even if the issues regarding Clipper are resolved favorably, privacy concerns will not go away. Rules still need to be developed about the collection and use of transactional data generated by computer communications. Several specific steps should be taken. First, the FCC should be given a broad mandate to pursue privacy concerns. Second, current gaps in the communications law should be filled. The protection of transactional records is particularly important. Third, telecommunications companies should be encouraged to explore innovative ways to protect privacy. "Telephone cards", widely available in other countries, are an ideal way to protect privacy.

TESTIMONY

Mr. Chairman, members of the Subcommittee, thank you for the opportunity to testify today on encryption policy and the Clipper proposal. I especially wish to thank you Congressman Markey, on behalf of CPSR, for your ongoing efforts on the privacy front as well as your work to promote public access to electronic information. The cryptography issue is of particular concern to CPSR. During the past several years we have pursued an extensive study of cryptography policy in the United States. We have organized several public conferences, conducted litigation under the Freedom of Information Act, and appeared on a number of panels to discuss the importance of cryptography for privacy protection and the need to scrutinize carefully government proposals designed to limit the use of this technology. While we do not represent any particular computer company or trade association we do speak for a great many people in the computer profession who value privacy and are concerned about the government's Clipper initiative. Today I will briefly summarize our assessment of the Clipper proposal. Then I would like to say a few words about the current status of privacy protection.

CLIPPER To put the Clipper proposal in a policy context, I will need to briefly to describe a law passed in 1987 intended to address the roles of the Department of Commerce and the Department of Defense in the development of technical standards. The Computer Security Act of 1987 was enacted to improve computer security in the federal government, to clarify the responsibilities of the National Institute of Standards and Technology (NIST) and the National Security Agency, and to ensure that technical standards would serve civilian and commercial needs. The law made clear that in the area of unclassified computing systems, NIST and not NSA, would be responsible for the development of technical standards. It emphasized public accountability and stressed open decision-making. The Computer Security Act also established the Computer System Security and Privacy Advisory Board (CSSPAB), charged with reviewing the activities of NIST and ensuring that the mandate of the law was enforced. The Computer Security Act grew out of a concern that classified standards and secret meetings would not serve the interests of the general public. As the practical applications for cryptography have moved from the military and intelligence arenas to the commercial sphere, this point has become clear. There is also clearly a conflict of interest when an agency tasked with signal interception is also given authority to develop standards for network security. In the spirit of the Computer Security Act, NIST set out in 1989 to develop a public key standard FIPS (Federal Information Processing Standard). In a memo dated May 5, 1989, obtained by CPSR through the Freedom of Information Act, NIST said that it planned:

to develop the necessary public-key based security standards. We require a public-key algorithm for calculating digital signatures and we also require a public-key algorithm for distributing secret keys.

NIST then went on to define the requirements of the standard:

The algorithms that we use must be public, unclassified, implementable in both hardware or software, usable by federal Agencies and U.S. based multi-national corporation, and must provide a level of security sufficient for the protection of unclassified, sensitive information and commercial propriety and/or valuable information.

The Clipper proposal and the full-blown Capstone configuration, which incorporates the key management function NIST set out to develop in 1989, is very different from the one originally conceived by NIST.

% The Clipper algorithm, Skipjack, is classified, % Public access to the reasons underlying the proposal is restricted, % Skipjack can be implemented only in tamper-proof hardware, % It is Unlikely to be used by multi-national corporations, and % The security of Clipper remains unproven.

The Clipper proposal undermines the central purpose of the Computer Security Act. Although intended for broad use in commercial networks, it was not developed at the request of either U.S. business or the general public. It does not reflect public goals. Rather it reflects the interests of one secret agency with the authority to conduct foreign signal intelligence and another government agency responsible for law enforcement investigations. Documents obtained by CPSR through the Freedom of Information Act indicate that the National Security Agency dominated the meetings of the joint NIST/NSA Technical Working group which made recommendations to NIST regarding public key cryptography, and that a related technical standard for message authentication, the Digital Signature Standard, clearly reflected the interests of the NSA. We are still trying to determine the precise role of the NSA in the development of the Clipper proposal. We would be pleased to provide to the Subcommittee whatever materials we obtain.

LEGAL AND POLICY ISSUES There are also several legal and constitutional issues raised by the government's key escrow proposal. The premise of the Clipper key escrow arrangement is that the government must have the ability to intercept electronic communications, regardless of the economic or societal costs. The FBI's Digital Telephony proposal, and the earlier Senate bill 266, were based on the same assumption. There are a number of arguments made in defense of this position: that privacy rights and law enforcement needs must be balanced, or that the government will be unable to conduct criminal investigations without this capability. Regardless of how one views these various claims, there is one point about the law that should be made very clear: currently there is no legal basis -- in statute, the Constitution or anywhere else -- that supports the premise which underlies the Clipper proposal. As the law currently stands, surveillance is not a design goal. General Motors would have a stronger legal basis for building cars that could go no faster than 65 miles per hour than AT&T does in marketing a commercial telephone that has a built-in wiretap capability. In law there is simply nothing about the use of a telephone that is inherently illegal or suspect. The federal wiretap statute says only that communication service providers must assist law enforcement in the execution of a lawful warrant. It does not say that anyone is obligated to design systems to facilitate future wire surveillance. That distinction is the difference between countries that restrict wire surveillance to narrow circumstances defined in law and those that treat all users of the telephone network as potential criminals. U.S. law takes the first approach. Countries such as the former East Germany took the second approach. The use of the phone system by citizens was considered inherently suspect and for that reason more than 10,000 people were employed by the East German government to listen in on telephone calls. It is precisely because the wiretap statute does not contain the obligation to incorporate surveillance capability -- the design premise of the Clipper proposal -- that the Federal Bureau of Investigation introduced the Digital Telephony legislation. But that legislation has not moved forward and the law has remained unchanged. The Clipper proposal attempts to accomplish through the standard-setting and procurement process what the Congress has been unwilling to do through the legislative process. On legal grounds, adopting the Clipper would be a mistake. There is an important policy goal underlying the wiretap law. The Fourth Amendment and the federal wiretap statute do not so much balance competing interests as they erect barriers against government excess and define the proper scope of criminal investigation. The purpose of the federal wiretap law is to restrict the government, it is not to coerce the public. Therefore, if the government endorses the Clipper proposal, it will undermine the basic philosophy of the federal wiretap law and the fundamental values embodied in the Constitution. It will establish a technical mechanism for signal interception based on a premise that has no legal foundation. The assumption underlying the Clipper proposal is more compatible with the practice of telephone surveillance in the former East Germany than it is with the narrowly limited circumstances that wire surveillance has been allowed in the United States.

UNANSWERED QUESTIONS There are a number of other legal issues that have not been adequately considered by the proponents of the key escrow arrangement that the Subcommittee should examine. First, not all lawful wiretaps follow a normal warrant process. The proponents of Clipper should make clear how emergency wiretaps will be conducted before the proposal goes forward. Second, there may be civil liability issues for the escrow agents, if they are private parties, if there is abuse or compromise of the keys. Third, there is a Fifth Amendment dimension to the proposed escrow key arrangement if a network user is compelled to disclose his or her key to the government in order to access a communications network. Each one of these issues should be examined carefully.

CPSR CONFERENCE At a conference organized by CPSR this week at the Carnegie Endowment for International Peace we heard presentations from staff members at NIST, FBI, NSA and the White House about the Clipper proposal. The participants at the meeting had the opportunity to ask questions and to exchange views. Certain points now seem clear:

% The Clipper proposal was not developed in response to any perceived public or business need. It was developed solely to address a law enforcement concern. % Wire surveillance remains a small part of law enforcement investigations. The number of arrests resulting from wiretaps has remained essentially unchanged since the federal wiretap law was enacted in 1968. % The potential risks of the Clipper proposal have not been assessed and many questions about the implementation remain unanswered. % Clipper does not appear to have the support of the business or research community.

Many comments on the Clipper proposal, both positive and negative as well the materials obtained by CPSR through the Freedom of Information Act, are contained in the Source book compiled by CPSR for the recent conference. I am please to make a copy of this available to the Subcommittee.

NETWORK PRIVACY PROTECTION Communications privacy remains a critical test for network development. Networks that do not provide a high degree of privacy are clearly less useful to network users. Given the choice between a cryptography product without a key escrow and one with a key escrow, it would be difficult to find a user who would prefer the key escrow requirement. If this proposal does go forward, it will not be because network users or commercial service providers favored it. Even if the issues regarding the Clipper are resolved favorably, privacy concerns will not go away. Cryptography is a part of communications privacy, but it is only a small part. Rules still need to be developed about the collection and use of transactional data generated by computer communications. While the federal wiretap law generally does a very good job of protecting the content of communications against interception by government agencies, large holes still remain. The extensive use of subpoenas by the government to obtain toll records and the sale of telephone records by private companies are just two examples of gaps in current law. The enforcement of privacy laws is also a particularly serious concern in the United States. Good laws without clear mechanisms for enforcement raise over-arching questions about the adequacy of legal protections in this country. This problem is known to those who have followed developments with the Privacy Act since passage in 1974 and the more recent Video Privacy and Protection Act of 1988. I make this point because it has been the experience in other countries that agencies charged with the responsibility for privacy protection can be effective advocates for the public in the protection of personal privacy.

RECOMMENDATIONS Regarding the Clipper proposal, we believe that the national review currently underway by the Computer Security and Privacy Advisory Board at the Department of Commerce will be extremely useful and we look forward to the results of that effort. The Panel has already conducted a series of important open hearings and compiled useful materials on Clipper and cryptography policy for public review. We are also pleased that the Subcommittee on Telecommunications and Finance has undertaken this hearing. This Subcommittee can play a particularly important role in the resolution of these issues. We also appreciate the Chairman's efforts to ensure that the proper studies are undertaken, that the General Accounting Office fully explores these issues, and that the Secretary of Commerce carefully assesses the potential impact of the Clipper proposal on export policy. We are, however, less pleased about the White House study currently underway. That effort, organized in large part by the National Security Council, has led to a series of secret meetings, has asked that scientists sign non-disclosure agreements and accept restrictions on publication, and has attempted to resolve public concerns through private channels. This is not a good process for the evaluation of a technology that is proposed for the public switched network. While we acknowledge that the White House has been reasonably forthcoming in explaining the current state of affairs, we do not think that this process is a good one. For these reasons, we believe that the White House should properly defer to the recommendations of the Computer System Security and Privacy Advisory Board and the Subcommittee on Telecommunications and Finance. We hope that no further steps in support of the Clipper initiative will be taken. We specifically recommend that no further purchase of Clipper chips be approved. Speaking more generally, we believe that a number of steps could be taken to ensure that future communications initiatives could properly be viewed as a boost to privacy and not a set-back.

% The FCC must be given a strong mandate to pursue privacy concerns. There should be an office specifically established to examine privacy issues and to prepare reports. Similar efforts in other countries have been enormously successful. The Japanese Ministry of Post and Telecommunications developed a set of privacy principles to ensure continued trade with Europe. The Canada Ministry of Communications developed a set of communications principles to address public concerns about the privacy of cellular communications. In Europe, the EC put forward an important directive on privacy protection for the development of new network services.

% Current gaps in the communications law should be filled. The protection of transactional records is particularly important. Legislation is needed to limit law enforcement access to toll record information and to restrict the sale of data generated by the use of telecommunication services. As the network becomes digital, the transaction records associated with a particular communication may become more valuable than the content of the communication itself.

% Telecommunications companies should be encouraged to explore innovative ways to protect privacy. Cryptography is a particular method to seal electronic communications, but far more important for routine communications could be anonymous telephone cards, similar to the metro cards here in the District of Columbia, that allow consumers to purchase services without establishing accounts, transferring personal data, or recording personal activities. Such cards are widely available in Europe, Japan, and Australia.

I thank you very much for the opportunity to appear before the Subcommittee and would be pleased to answer your questions Computer Professionals for Social Responsibility

CPSR is a national membership organization, established in 1982, to address the social impact of computer technology. There are 2,500 members in 20 chapters across the United States, and offices in Palo Alto, California, Cambridge, Massachusetts, and Washington DC. The organization is governed by a board of elected officers and meetings are open to the public. CPSR sponsors an annual meeting and the biennial conference on Directions and Implications of Advanced Computing. CPSR sponsored the first conference on Computers, Freedom, and Privacy in 1991. CPSR also operates the Internet Library at cpsr.org. The library contains documents from the White House on technology policy and a wide range of public laws covering privacy, access to information, and communications law and is available free of charge to all users of the Internet.

Marc Rotenberg is the director of the CPSR Washington office and an adjunct professor at Georgetown University Law Center. He is chairman of the ACM Committee on Scientific Freedom and Human Rights, an editor for the Computer Law and Security Report (London), and the secretary of Privacy International, an organization of human rights advocates and privacy scholars in forty countries. He received an A.B. from Harvard College and a J.D. from Stanford Law School, and is a member of the bar of the United States Supreme Court. His forthcoming article "Communications Privacy: Implications for Network Design" will appear in the August 1993 issue of Communications o0f the ACM.

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