EFF Summary of May 3 1994 Clipper and Digital Telephony Hearings

[David Farber <farber () central cis upenn edu>]

From: mech () eff org (Stanton McCandlish)
Newsgroups: comp.org.eff.news,talk.politics.misc
Date: 4 May 1994 23:19:49 -0500


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