EFF Summary of May 3 1994 Clipper and Digital Telephony Hearings

[Stanton McCandlish <mech@eff.org>]

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