yellow journalism and Encryption

[Vinnie Moscaritolo <vinnie@webstuff.apple.com>]

The following is an example of the asswipe media's attempt to write about
encryption.


http://www.sfgate.com/cgi-bin/examiner/article.cgi?year=1996&month=10&day=06&art
icle=BUSINESS2814.dtl

Encryption controversy pits life against liberty

TOM ABATE
EXAMINER COLUMNIST

The Clinton administration tried again last week to rally support for an
encryption policy that would give the FBI the means to tap any electronic
communication, without unduly infringing on civil liberties or impeding
software exports.

At stake in the policy battle are software exports worth millions, Fourth
Amendment rights Americans have enjoyed for centuries, and innocent lives
that the good guys say might be saved if they're able to keep snooping on
the bad
guys.

And the reason all of this has become a policy jumble is simple. Computers
have made it cheap and easy to create unbreakable secret codes to protect
phone calls, e-mail and data files against electronic bugging.

That's why this technology, called encryption, means profits in Silicon
Valley, more privacy for you and me, and a problem for federal
investigators. Because secret codes allow criminals to nullify the fed's
favorite tool - the wiretap.

"Wiretapping is the main issue," said Stewart Baker, former general counsel
of the National Security Agency, the CIA's code-breaking and eavesdroping
cousin.

"For the administration to abandon the position it started with three years
ago would be to say, "We are the administration that is going to give up
the wiretap as a law enforcement tool,"" he said.

That's why last week the administration tried a new variant in its
3-year-old campaign to require that code-making systems be built with a
"spare key" investigators could retrieve, under court order, to crack any
code.

When the administration first proposed this idea in 1993, it involved a
device called the "Clipper chip," which would have deposited spare keys
with government agencies. Almost no one outside the FBI liked that idea, so
last week the
administration floated a compromise: to let U.S. firms export strong
code-making products, provided they deposited the spare key with some third
party.

Exports are the odd piece in this policy puzzle. The U.S. government has no
authority to regulate secret codes within U.S. borders. But a law passed
after World War II put secret codes in the same category as munitions,
products that
cannot be exported without a license.

The government has used this export-licensing authority to indirectly
control code-making software here. Most high-tech firms are unwilling to
sell two sets of encryption products, one full- and the other
half-strength, so they have
sold weak encryption products everywhere.

In essence, the administration hopes to use export controls to change the
balance of power in a new war. This time the enemy isn't the Japanese or
the Germans, as during WWII, or even our Cold War adversaries, the
Russians. Instead, the administration fears drug smugglers, organized
criminals and terrorists will use code-making devices to evade electronic
evidence-gathering techniques, notably wiretapping.

"If two criminals are discussing a plot over the telephone and we have a
wiretap order, the encryption would negate the wiretap," said Michael
Vatis, a senior Department of Justice official.

The same would happen if investigators seized the computerized bookkeeping
records of a drug-smuggling ring only to find they were saved in an
unbreakable code. But as frustrating as it might be to seize a mound of
indecipherable evidence, it was the prospect of losing the wiretap that got
Vatis most aroused.

"For serious investigations involving terrorists or organized crime . . .
where you're worried about hundreds of people being killed . . . the whole
point is to keep the investigation secret or the whole thing blows up," he
said.

Having access to a spare set of code-breaking keys "is not a shift in the
balance of power," Vatis said. "It's preserving
the status quo."

Not so, argued Daniel Weitzner, an attorney with the civil libertarian
Center for Democracy and Technology inWashington, D.C. Forgetting
encryption for a moment, Weitzner said, a wiretap is unlike any other tool
in the
investigator's arsenal.

"To get documents sitting on my computer, the FBI has to come into my
office with a search warrant," Weitzner said. "I have to know about it."

Exactly the reverse is true for a wiretap. To be effective, the subject
must be ignorant of the tap. Weitzner said this
notion of a "secret search" went against a central principle of the Fourth
Amendment, which protects people from
unreasonable search and seizure.

"When wiretapping was allowed in 1968, Congress basically said they were
going to create an exception to this rule,"
Weitzner said.

But in the three years since the Clipper debate began, the FBI has enlarged
its interest beyond preserving phone taps
and has asked for spare keys to the codes used to protect Internet traffic
and stored computer files, Weitzner said.

"If the FBI is able to transfer its wiretap authority to the Internet, it
would give the bureau access to a new realm of
activities," Weitzner argued.

Using the spare keys to Internet transmissions could give the agency access
to medical records, charge card receipts or
other data stored or transmitted on the global network. Moreover, the
agency might be able to tap some of this
information in transit, without the knowledge of the person being
investigated, whereas today agents would have to
visit the doctor's office or bank, potentially alerting the target.

"If all things in the digital world are open to wiretap-type scrutiny, then
we have lost the protection against secret
searches," Weitzner said. "What is on the way to happening is that the
exception could swallow the rule."

The temptation to tap wires is as old as wired communication itself,
according to Clifford Fishman, law professor at
Catholic University's Columbus School of Law in Washington, D.C., and
author of a textbook on wiretapping.

During the Civil War, both sides tapped telegraph lines to spy on troop
movements. Wiretaps were common in the
early days of the telephone, and Supreme Court decisions during the 1920s
said this was no invasion of privacy
because the tap was on a public telephone pole and not inside a home.

In response, Congress made wiretaps illegal at the federal level as part of
the Communication Act of 1934. But
Fishman said state investigators kept right on using wiretaps, as did the
feds, who sometimes used unauthorized taps
on Mafia and political figures during the long reign of former FBI director
J. Edgar Hoover.

Congress legalized federal wiretaps in 1968 at a time when Richard Nixon
was campaigning against the liberal Earl
Warren Supreme Court.

"The mood in Congress was to defang the Republicans on law enforcement,"
Fishman said. "Lyndon Johnson, with
palpable reluctance, signed this bill to permit federal officials to obtain
a court order to do a wiretap or a bug and use
this information in court."

Fishman, a former New York City district attorney, considered wiretapping
essential to investigating the most
dangerous crimes and called the administration's latest spare-key proposal
a good compromise.

But civil libertarians fear that giving investigators the keys to unlock
any coded phone call or electronic document will
greatly expand the realm of secret searches and tempt them to abuse a power
that was denied them in the days when
ensuring privacy meant putting wax seals on envelopes.

Much of the coverage of the encryption controversy has centered on the
complaints of Silicon Valley firms that they are
losing hundreds of millions of dollars in exports to foreign competitors
who don't have to limit the strength of their
encryption products.

Though that may be the case, there's more at stake here than money or jobs.
Our wired society is about to decide how
easy it should be for investigators to figuratively climb up the telephone
pole to put alligator clips on our secrets,
whether innocent or criminal.

To give investigators the keys to every code might be too much temptation
and a threat to civil liberties. To deny
investigators the keys may handcuff them in the fight against increasingly
sophisticated and deadly forms of crime.

That is the nature of the choice on encryption policy, and that is why
there is no simple compromise.

Tom Abate's column appears every other Sunday. You can reach him this fool
mailto:tabate@examiner.com


Vinnie Moscaritolo
http://www.vmeng.com/vinnie/
Fingerprint: 4FA3298150E404F2782501876EA2146A
-------------------------------------------------------

 "...and by the way, Mr.Speaker, the Second Amendment is not
    for killing little ducks and leaving Huey and Dewey and Louie
    without an aunt and uncle. It's for hunting politicians, like
    in Grozny, and in the colonies in 1776, or when they take your
    independence away."
   --- Rep. Robert (B-1 Bob) Dornan (R-CA) responding to Bill
       Clinton's "State of the Union" address, January 25, 1994