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Sen. Leahy's Statement on Clipper 3.1.1
STATEMENT OF SENATOR LEAHY ON THE
ADMINISTRATION'S NEW ENCRYPTION INITIATIVE
October 1, 1996
The timing of the Administration's announcement on encryption,
within hours of the Congress' likely adjournment, is unfortunate.
The Administration needs to work with Congress to develop a
consensus on a national encryption policy that takes account of
the privacy, law enforcement and competitiveness concerns of our
Nation's citizens and businesses.
Taking unilateral steps will not resolve this issue, but
instead could delay building the consensus we so urgently need.
This issue simply cannot by resolved by Executive fiat.
While technology should not dictate policy, particularly when
our public safety and national security interests are at issue,
any policy we adopt must protect our privacy. As the
Administration and industry rush to find an alternative to
unbreakable encryption, they should take heed that any solution
which fails to protect the Fourth Amendment and privacy rights of
our citizens will be unacceptable.
That is why, with bipartisan support, Senator Burns and I
introduced legislation in March that set out privacy safeguards
to protect the decoding keys to encrypted communications and
stringent legal procedures for law enforcement agencies to get
access to those keys.
In this plan, the Administration is directing the resources of
our high-tech industry to develop breakable, rather than
unbreakable, encryption. But no one is yet clear about who will
be legally allowed to break into encrypted messages, and under
what circumstances. These are questions that have to be answered
not only with our own government but also with foreign
governments. The weakest link in a key recovery system may be
the country with the weakest privacy protections. Internet users,
who can send messages around the globe seamlessly, do not want
the privacy of their encrypted communications to be at the mercy
of a country that ignores the Fourth Amendment principles we
enjoy here.
These are significant privacy and security concerns not
answered by the Administration's plan.
Even without reading the fine print, the general outline of
the Administration's plan smacks of the government trying to
control the marketplace for high-tech products. Only those
companies that agree to turn over their business plans to the
government and show that they are developing key recovery
systems, will be rewarded with permission to sell abroad products
with DES encryption, which is the global encryption standard.
Conditioning foreign sales of products with DES on development
of key recovery systems puts enormous pressure on our computer
industry to move forward with key recovery, whether their
customers want it or not.
Internet users themselves -- not the FBI, not the NSA, not
any government regulator -- should decide what encryption method
best serves their needs. Then the marketplace will be able to
respond. The Administration is putting the proverbial cart before
the horse, by putting law enforcement interests ahead of every
one elses.
But that is not the only catch in the Administration's plan.
Permission to export DES will end in two years. Allowing American
companies to sell DES overseas is a step long overdue. Given the
fact that a Japanese company is already selling "triple DES", one
might say this step is too little, too late. Threatening to pull
the plug on DES in two years, when this genie is already out of
the bottle, does not promote our high-tech industries overseas.
Does this mean that U.S. companies selling sophisticated computer
systems with DES encryption overseas must warn their customers
that the supply may end in two years? Customers both here and
abroad want stable suppliers, not those jerked around by their
government.
The most effective way to protect the privacy and security of
our on-line communications is to use encryption technology. Every
American should be concerned about our country's policy on
encryption since the resolution of this debate will affect
privacy, jobs and the competitiveness of our high-tech
industries.