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IP: DOJ Proposes Secret Searches


From: Dave Farber <farber () cis upenn edu>
Date: Fri, 20 Aug 1999 12:52:38 -0400



X-Sender: cdt5 () pop cais com
Date: Fri, 20 Aug 1999 12:41:25 -0400
To: farber () cis upenn edu
From: Alan Davidson <abd () cdt org>
Subject: DOJ Proposes Secret Searches

This is a *very* dangerous new proposal from the Justice Department. The
bulk of the bill is about legal standards for access to keys; some helpful,
many too weak. But by far the most dangerous part of the bill is a small
section that would allow government agents to install a "recovery device"
on a computer without notice to the owner.

CDT's analysis of the proposal follows below. Please excuse any multiple
postings. The bill and other DOJ docs are online at
http://www.cdt.org/crypto/CESA

        -- Alan

Alan Davidson, Staff Counsel                 202.637.9800 (v)
Center for Democracy and Technology          202.637.0968 (f)
1634 Eye St. NW, Suite 1100                  <abd () cdt org>
Washington, DC 20006                         PGP key via finger



=============================================================
C D T   P O L I C Y   P O S T
****************************************************
A BRIEFING ON PUBLIC POLICY ISSUES
AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
****************************************************
Volume 5, Number 19      August 20, 1999
=============================================================

CONTENTS:
(1) Justice Department Proposes Secret Searches of Homes, Offices
(2) If the Government Wants Your Data, It Should Come to You For It
(3) Proposal Also Sets Standards for Access to Escrowed Keys
(4) Subscription Information
(5) About the Center for Democracy and Technology

** This document may be redistributed freely with this banner intact **
Excerpts may be re-posted with permission of ari () cdt org
This document is also available at:
http://www.cdt.org/publications/pp_5.19.html
_______________________________________________________________________

(1) JUSTICE DEPARTMENT PROPOSES SECRET SEARCHES OF HOMES, OFFICES

The Justice Department is planning to ask Congress for new authority
allowing federal agents armed with search warrants to secretly break into
homes and offices to obtain decryption keys or passwords or to implant
"recovery devices" or otherwise modify computers to ensure that any
encrypted messages or files can be read by the government.

With this dramatic proposal, the Clinton Administration is basically
saying: "If you don't give your key in advance to a third party, we will
secretly enter your house to take it if we suspect criminal conduct."

The full text of the Justice Department proposal, a section-by-section
analysis prepared by DOJ lawyers, and related materials are available at:
http://www.cdt.org/crypto/CESA.

The proposal has been circulating within the Clinton Administration since
late June.  On August 5, the Office of Management and Budget circulated it
for final interagency review.  In the normal course, after all potentially
interested agencies have been consulted, the proposal would be transmitted
to Capitol Hill, where it could be introduced by any Member, or offered as
an amendment to pending legislation.
_______________________________________________________________________

(2) IF THE GOVERNMENT WANTS YOUR DATA, IT SHOULD COME TO YOU FOR IT

The proposal is intended to eliminate a core element of our civil
liberties. Normally, under the Fourth Amendment in the Bill of Rights, when
the government wants to search your home or office, the government must
obtain a court order issued by a judge based on a finding of probable cause
to believe that a crime is being committed AND the government must provide
you with contemporaneous notice of the search --  show you the warrant and
leave an inventory of the items seized.

This notice requirement has ancient roots.  It is based on the notion that
the judicial warrant (issued on the basis of the government agent's
untested assertions presented to a judge in private) does not provide
adequate protection against abuse.  Notice is important because it gives
you the opportunity to observe the conduct of the government agents and
protect your rights.  If the agents are exceeding the scope of the warrant,
for example, you can even rush down to the courthouse and ask a judge to
stop the search.  And after the search, you can exercise your rights for
return of your property and otherwise defend yourself.

Over time, our society has tolerated exceptions to this rule. For example,
the government can enter secretly to plant bugs to pick up oral
communications or to bug your phone, but that is quite rare.  Most wiretaps
do not involve entry into the home.  A few courts in a few cases have
allowed so-called "sneak and peek" searches, in which government agents can
enter surreptitiously, provided they don't take anything.   And in the name
of foreign counterintelligence, the government has long conducted "black
bag jobs," such as the one in which they searched the home and computer of
CIA employee Aldrich Ames.

The new DOJ proposal is a huge expansion of these previously narrowly defined
exceptions.  The proposal takes extraordinary cases at the fringes of the
law and makes them routine, given the increasingly ubiquitous nature of
computers.

Thus, the encryption debate, which up until now has been about privacy and
security in cyberspace, is becoming a struggle over the sanctity of the
home.
_______________________________________________________________________

(3)  PROPOSAL ALSO SETS STANDARDS FOR ACCESS TO ESCROWED KEYS

The proposal also includes detailed procedures for government access to
keys and other forms of decryption assistance stored with third parties.
Again, the essence of the DOJ proposal is government access to keys without
the knowledge or cooperation of the crypto user.

The DOJ claims that these key recovery provisions provide greater
protection for lawful users of encryption, by making it clear that a third
party holding a decryption  key or other recovery information cannot
disclose it or use it except in accordance with the procedures set forth in
the Act.  The DOJ-drafted procedures are complicated and unique, turning on
unanswered questions of what is "generally applicable law" and what is a
"constitutionally protected expectation of privacy."  They fall far short
of protections proposed by Sen. Patrick J. Leahy (D-VT) in the Electronic
Rights for the Twenty-First Century (E-RIGHTS) bill, S. 854, described at
http://www.cdt.org/crypto/legis_106/ERIGHTS/

In any case, few individuals use third party key recovery, and there seems
to be little individual or corporate interest in key recovery for
communications, so even the strictest procedures for access to escrowed
keys would be vastly outweighed by the proposed secret searches of homes
and offices.

In the small comfort department, the DOJ proposal makes it clear that key
escrow or third party key recovery would not be mandatory.
_______________________________________________________________________

(4) SUBSCRIPTION INFORMATION

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_______________________________________________________________________

(5) ABOUT THE CENTER FOR DEMOCRACY AND TECHNOLOGY/CONTACTING US

The Center for Democracy and Technology is a non-profit public interest
organization based in Washington, DC. The Center's mission is to develop
and advocate public policies that advance democratic values and
constitutional civil liberties in new computer and communications
technologies.

Contacting us:

General information:  info () cdt org
World Wide Web:       http://www.cdt.org/


Snail Mail:  The Center for Democracy and Technology
             1634 Eye Street NW * Suite 1100 * Washington, DC 20006
             (v) +1.202.637.9800 * (f) +1.202.637.0968


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End Policy Post 5.19
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Jim Dempsey

Center for Democracy and Technology
1634 I Street, NW Suite 1100
Washington DC, 20006
voice: 202.637.9800      fax: 202.637.0968
jdempsey () cdt org

                * WORKING FOR DEMOCRATIC VALUES IN A DIGITAL AGE *
                Protecting Free Speech and Privacy on the Internet
                              http://www.cdt.org/


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