EFF SUMMARIES ============= May 4, 1994 __________________________ Contents: * Senate Subcommittee on Technology and the Law holds Clipper Hearing * House Subcommittee on Technology, Environment and Aviation holds hearing on Clipper and Digital Telephony proposals; EFF's Executive Director Jerry Berman and Board Member David Farber testify __________________________ SENATE SUBCOMMITTEE HOLDS CLIPPER HEARING ----------------------------------------- The Senate Judiciary Subcommittee on Technology and the Law held a hearing on Tuesday (5/3) to examine the Administration's "Clipper Chip" Key Escrow Encryption proposal. Witnesses included Asst. Atty. Gen. Jo Ann Harris (Criminal Justice Division), NIST Deputy Director Raymond Kammer, Whitfield Diffie (of Sun Microsystems), Stephen Walker (President, Trusted Information Systems), and NSA director Vice Adm. J. M. McConnell. The discussion touched on a number of key issues, including the necessity of the Clipper proposal for law enforcement; the privacy interests of network users; the costs associated with implementing the Clipper scheme; export controls; and whether those intending to use communications networks to break the law would actually use Clipper as opposed to other encryption schemes. Although a variety of views were offered, few new developments emerged in this controversial debate. Assistant Attorney General Harris and NIST's Ray Kammer both stated that the Clipper Scheme and Key Escrow system would not provide law enforcement with any new surveillance abilities. Rather, Harris argued, Clipper is analogous to a translator. Harris stated, "All Clipper does is, after a court has authorized interceptions of communications, is that we get the ability to understand the content of legitimately intercepted communications". The Administration continues to maintain that the market would accept the Clipper standard based on the assumption that it is the strongest encryption scheme, regardless of who holds the keys. When pressed by Sen. Leahy on this issue, as well as on the question of whether criminals or terrorist organizations would be willing to use the Clipper standards, neither witness offered any assurances, and admitted that this is still an open question. Senator Leahy expressed skepticism: "I have serious questions about whether any sophisticated criminal or terrorist organization is going to use the one code endorsed by the U.S. Government and for which U.S. Government agents hold the decoding keys. There are a multitude of alternative encryption methods commercially available. If Clipper Chip does become the standard encryption method used by Americans, criminals may be forced to use Clipper to communicate with legitimate outsiders. But this is a big 'IF' ". In what may prove to be a significant development, NIST's Kammer conceded that additional fiscal authorization may be needed to fund the implementation of the Clipper proposal. If this is the case, Congress would be required to consider legislation to authorize funding, and at this point passage of such legislation is at best uncertain. EFF will continue to closely monitor this development, and will pass along information as it develops. Sun Microsystems Diffie urged a slow and careful approach to the Clipper issue, cautioning that a rush to implement Clipper may create a bureaucracy that would be difficult to dislodge at a later time. Diffie stressed the need for international for information security, and cautioned against attempts to use the power of technology to increase the power of government. Diffie added, "Integrity of political speech is the root of legitimate laws in a democratic society. We are in a position where if we do not make it a national priority to make privacy available", this integrity may be compromised. Steve Walker, of Trusted Information Systems, stressed the need for the removal of export control restrictions. He also countered the Administration's contention that very few foreign encryption alternatives exist; noting that his company had found over 340. Walker displayed several of these applications, and noted that because of export controls U.S. manufactures of encryption technology face a significant disadvantage on the world market. Although the Senate Hearing did not produce many new developments, it is significant to note that no members of the Subcommittee expressed outright support for the Clipper Chip proposal. Chairman Leahy, the most vocal panel member at Tuesday's hearing, was also the most skeptical, and as such the fate Clipper proposal is still very much in doubt. *** ------------------------------ HOUSE PANEL CONSIDERS CLIPPER AND DIGITAL TELEPHONY PROPOSALS ------------------------------------------------------------- Tuesday proved to be a busy day for Clipper on the Hill, as the House Science, Space and Technology Subcommittee on Technology, Environment and Aviation also considered the Clipper and Digital Telephony proposals. Witnesses on the panel included James Kallstrom of the FBI, NSA's Clinton Brooks, NIST Deputy Director Ray Kammer, Dr. Dorothy Denning, Dr. David Faber, EFF Executive Director Jerry Berman (on behalf of DPSWG), and Chmn. Willis Ware of the Congress/NIST System Security and Privacy Advisory Board. The discussion centered mainly on the Clipper issue. Unlike the Senate panel, there seemed to be some support for the Clipper proposal on the House Subcommittee. Rep. Dan Glickman (D-KS), Chairman of the House Intelligence Committee, declared his "cautious support", for the proposal, and stressed law enforcement's need for strong surveillance abilities. Subcommittee Chairman Valentine (D-NC), as well as Reps. Morella (R-MD) and Rohrabacher (R-CA) all expressed reservations. James Kallstrom urged full support of both the Clipper and Digital Telephony proposals on behalf of all law enforcement, citing the need to counter the increasing sophistication of digital communications technologies. Kallstrom painted a picture of a network populated by criminals, terrorists, and drug dealers which would pose a great danger to public safety, unless law enforcement is given the ability to intercept illegal communications. EFF's Jerry Berman countered this assertion by arguing that Clipper would only solve law enforcement's problems if criminals use it. The only way to do this, Berman added, would be to mandate the Clipper standard, something which the Administration does not claim to want to do. The only solution is for Congress to deny appropriation for Clipper and send the Administration back to the drawing board, Berman argued. Dr. Farber, appearing as an expert witness, stated that solutions to the Clipper issue will not come easily and will not come in one big step. Rather, a carefully considered and open approach is required. While stressing the need for encryption standards on communications networks, Dr. Farber cautioned against "smoke-filled-room standards" of encryption which are, in his view, likely to bead mistrust. Dr. Farber also argued for the removal of export controls on encryption technology. NSA's Clinton Brooks expressed support for Congressional Consideration of the Clipper issue. He argued that Clipper is a sound technological solution to a legitimate law enforcement and National Security dilemma, and that a public debate on its merits would eventually remove the misinformation and mistrust of government, and would prove Clipper to be in the public interest. Dr. Farber offered a strong caution to this, expressing the concern that a future administration may find it necessary to mandate the Clipper standard. Dr. Farber suggested that at the very least Congress weld into law a guarantee that Clipper remain voluntary, that the Judiciary be an escrow holder. He cautioned, in the words of Benjamin Franklin, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety" ************** Written testimony & documents from the hearings are available as: ftp.eff.org, /pub/EFF/Policy/Crypto/Clipper/[filename] gopher.eff.org, 1/EFF/Policy/Crypto/Clipper, [filename] gopher://gopher.eff.org/11/EFF/Policy/Crypto/Clipper, [filename] http://www.eff.org/pub/EFF/Policy/Crypto/Clipper/[filename] where [filename] is: berman_eff_clip-dt.testimony - House testimony of Jerry Berman (EFF) brooks_nsa_clip-dt.testimony - House testimony of Clint Brooks (NSA) denning_clip-dt.testimony - House testimony of Dorothy Denning farber_clip-dt.testimony - House testimony of David Farber kallstrom_fbi_clip-dt.testimony - House testimony of James Kallstrom (FBI) kammer_nist_clip-dt.testimony - House testimony of Ray Kammer (NIST) ware_csspab_clip-dt.testimony - House testimony of Willis Ware (CSSPAB) clip-dt_hearings.docs - charter, witness list, diagrams. * Senate testimony and spoken testimony from both hearings will be made available from in the same directory when obtained. This material will also be available from the EFF BBS within a day or so, at +1 202 638 6120. -- Stanton McCandlish * mech@eff.org * Electronic Frontier Found. OnlineActivist "In a Time/CNN poll of 1,000 Americans conducted last week by Yankelovich Partners, two-thirds said it was more important to protect the privacy of phone calls than to preserve the ability of police to conduct wiretaps. When informed about the Clipper Chip, 80% said they opposed it." - Philip Elmer-Dewitt, "Who Should Keep the Keys", TIME, Mar. 14 1994