Summary of NYC Clipper Seminar 19 JAN 95

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

From: lex () interport net (Stevens R. Miller)


Last Thursday, January 19, 1995, the Science and Law Committee
and the Computer Law Committee of the Association of the Bar
of the City of New York jointly sponsered a panel discussion
entitled, "THE CLIPPER CHIP: Should the Government Control the
Master Keys to Electronic Commerce?"


The panel included:


Moderator: Albert L. Wells, Debevoise & Plimpton


Speakers:
        Stewart A. Baker, Steptoe & Johnson, former General Counsel, NSA


        Michael R. Nelson, Special Assistant for Information Technology,
                White House Office of Science and Technology Policy


        James V. Kallstrom, Special Agent in charge of the Special
                Operations division of the New York office of the FBI


        Daniel Weitzner, Center for Democracy and Technology, formerly
                Deputy Policy Director, Electronic Frontier Foundation


        William Whitehurst, Director, Data Security Systems, IBM Corporation


The discussion was open the public.  My rough guess is that 120 people were
there, probably 2/3 members of the Association.


For those familiar with this subject, what was most interesting was to be
found not in what was said, but in the differences from what has been said
before.  In particular, Stewart Baker didn't mention child pornography
even once.  Actually, Mr. Baker said remarkably little.  Remember, this is
the man who went on record in "Wired" only last year, while still on the
government payroll as the NSA's top lawyer, with his droll comparison of
those opposing Clipper to would-be revolutionaries in bandoliers and
pocket protectors.  He's told that joke so many times and to so many
audiences, it was conspicuous by its absence.  (Indeed, Baker even spoke
of himself as, "one who has been accused of lowering the tone of the
debate.")


Of more substance, Baker (and one must at least be curious what Steptoe &
Johnson find in their corporate interest in having him continue to be a
spokesman for the government's policy on this issue) continued to defend
the escrowed-key plan, stating that those opposed should exhibit more
faith in our democratic institutions than such opposition suggests.


Daniel Weitzner's unequivocal position was that "Clipper is dead."  He
showed more concern over the general issue of trade regulation and how
limitations on exports of crypto technology are affecting commercial
interests.  Nonetheless, he did criticize the administration's dogged
persistence, to the extent that they are not yet abandoning the core of
the Clipper initiative, which is to enforce use of a crypto system that
has a built-in backdoor for wiretapping purposes.  To this, Weitzner
simply pointed out that, as there have been "mob lawyers," it is no
stretch to imagine "mob cryptographers."  (Personal note: Weitzner is
right.  I have, myself, been approached by persons connected to organized
crime who expressed an interest in just such a thing.  Interestingly, my
"client" was more concerned about internal security than protection from
government eavesdropping.)


Both Baker and Michael Nelson stated that the Clipper initiative was an
attempt to find a balance amongst the conflicting interests of privacy,
scientific inquiry, commerce, and "the ability of law enforcement to do
its job."  My notes, however, do not reflect any remark to the effect
that "the ability of law enforcement to do its job" has been allowed to
suffer by the Clipper compromise.  In fact, Matt Blaise (forgive a
misspelling, if there is one) was present in the audience and asked
Nelson for some indication of what it would take for the administration
to compromise against the interests of law enforcement.  Nelson spoke at
some length in response, but if he actually answered, I missed it.


IBM's William Whitehurst presented the business view: this whole affair
is costing American companies sales.  The prospects for selling crypto
to foreign governments when American intelligence can listen in are not
very good.  (An interesting legal point that was only obliquely addressed
is that the Fourth Amendment would not be much protection in another
country; a wiretap warrant wouldn't be needed for American snooping.)
The administration's view on this was revealed for the head-in-the-sand
policy it is, when Perry Metzger asked Nelson if he really felt that
the Libyan government couldn't just download PGP and start defeating
the value of the Clipper chip right now (Nelson had mentioned Libya
earlier, as an example of a foreign power that could use crypto to the
disadvantage of the United States).  Nelson stated, "they'd still have
to implement it."  Metzger pointed out that this would about as hard as
entering "pgp -f filename," on an IBM PC, but Nelson just ignored him.


James Kallstrom of the FBI was a surprise guest.  It fell to him to
carry the weight of reminding us all that law enforcement is opposed to
things like kidnapping, bombing the World Trade Center, and child
pornography (this litany generated open laughter from the audience).
However strained the connection is between kidnapping and crypto, I
did find Kallstrom refreshingly direct about what he thinks the issue
really is: good versus evil.  Kallstrom feels it would be no more
sensible to unleash strong crypto into a world full of terrorists and
crooks than it would be to buy a house and not have a spare set of
keys; once you're locked out, you can never get back in.  I asked him
if it wasn't my right to decide who gets the key to my house, but he
didn't understand my question.  To Special Agent Kallstrom, we are all
living in one house, and it is our good faith in each other (and in
the FBI, apparently) that will keep the forces of evil locked out.  I
don't agree, but you can't fault him for his clarity of purpose.


No votes were taken, but I did not feel there was much support among
the audience for whatever remains of the Clipper initiative.  But,
Mike Nelson stated without reservation that the initiative would
continue to exist in whatever form best serves the compromise he had
discussed, while continuing to preserve "the ability of law enforcement
to do its job," for as long as the current administration remains in
power.


To which an audience member replied, "two more years!"

--
Stevens R. Miller
Attorney at Law
(212)227-1594
http://www.interport.net/~lex/