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Baker Rebuke (LONG! BASIC, Vet's Ignore)
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Here is my assesment of the arguments Mr. Baker presented on the pro-
Clipper side.
Feel free to post it to usenet if you think it's worthwhile.
- - -uni- (Dark)
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Copyright and distribution policy attached to the end of document. FYI.
X-within-URL: http://www.wired.com/Etext/2.06/Features/nsa.clipper.html
NSA'S CHIEF COUNSEL TO APPEAR ONLINE
Stewart A. Baker, Chief Counsel for the National Security Agency and
featured writer in WIRED 2.06 will host a Q&A session on the Clipper
Chip. He will appear on America Online in Center Stage (from AOL type
keyword: "center stage") on Thursday May 26, 1994, from 7-9 p.m. EST.
Baker is the NSA's top lawyer and supports the Clipper Initiative. He
worked briefly as Deputy General Counsel of the Education Department
under President Jimmy Carter. His article "Don't Worry Be Happy"
refutes seven myths of key escrow encryption and is a WIRED
Exclusive.
_________________________________________________________________
DON'T WORRY BE HAPPY
Why Clipper Is Good For You
By Stewart A. Baker, Chief Counsel for the NSA
_________________________________________________________________
With all the enthusiasm of Baptist ministers turning their Sunday
pulpits over to the Devil, the editors of WIRED have offered me the
opportunity to respond to some of the urban folklore that has grownup
around key escrow encryption -- also known as the Clipper Chip.
Recently the Clinton administration has announced that federal
agencies will be able to buy a new kind of encryption hardware thatis
sixteen million times stronger than the existing federal standard
known as DES. But this new potency comes with a caveat. If one of
these new encryption devices is used, for example, to encode a phone
conversation that is subject to a lawful government wiretap, the
government can get access to that device's encryption keys. Separate
parts of each key are held by two independent "escrow agents," who
will release keys only to authorized agencies under safeguards
approved by the attorney general. Private use of the new encryption
hardware is welcome but not required. That's a pretty modestproposal.
First off, notice the characterization here. The methods used for
access to the keys are approved by the attorney general. An
administrator appointed by the Executive branch, who has the greatest
interest in lax standards, perhaps a greater interest than anyone else
in government might.
Its critics, though, have generated at least seven myths about key
escrow encryption that deserve answers.
MYTH NUMBER ONE: Key escrow encryption will create a brave new world
of government intrusion into the privacy of Americans.
Opponents of key escrow encryption usually begin by talking about
government invading the privacy of American citizens. None of uslikes
the idea of the government intruding willy-nilly on communications
that are meant to be private.
But the key escrow proposal is not about increasing government's
authority to invade the privacy of its citizens. All that key escrow
does is preserve the government's current ability to conduct wiretaps
under existing authorities. Even if key escrow were the only form of
encryption available, the world would look only a little different
from the one we live in now.
His argument here hinges on the definitions of expand and preserve.
Right now, the government has (it seems) little ability to eavesdrop on
electronic messages sent with PGP or RIPEM. Preserving the status quo
would preserve the abilities of individuals to maintain unobserved
conversations.
If indeed the abilities of the government are only to be preserved, why
is additional legislation required?
Do we fund bold advances in police spending to "preserve" the abilities
of the police? Or to expand against some new threat? It's important to
distinguish exactly what is being preserved. Is it the "capability" of
the government? Or the effect of that "capability?"
Consider an example. The government has little trouble looking through
blinds with thermal scopes. Citizens begin to use lead based blinds.
The government wants to sell blinds that are transparent to thermal
scopes and drive lead blinds out of the market. The government is
trying to expand the effect here. They only want the ability to see
through the blinds, but they will soon have the ability to see through
blinds DESPITE the presence of lead blinds. The concept of expansion or
preservation is simply moot here. Ask this question instead: Are they
REGULATING? Are they LIMITING?
In addition, there is no doubt at all that the "transactional data"
provided by the LEAF envelope is a new capability.
In fact, it's the proponents of widespread unbreakable encryption who
want to create a brave new world, one in which all of us -- crooks
included -- have a guarantee that the government can't tap ourphones.
Yet these proponents have done nothing to show us that the new world
they seek will really be a better one.
In fact, even a civil libertarian might prefer a world where wiretaps
are possible. If we want to catch and convict the leaders of criminal
organizations, there are usually only two good ways to do it. We can
"turn" a gang member -- get him to testify against his leaders. Or we
can wiretap the leaders as they plan the crime.
Now were this my position, that law enforcement NEEDS to have wiretap
ability, how does Clipper help us? There is no dispute that Clipper
will not catch those criminals who use other "commercial" encryption.
The NSA answer to this is a petty "Well, we'll catch stupid criminals."
It amazes me they even have the audacity to assert this position.
Anyone who is going to shell out ~ $1000 for a encrypted phone, is
hardly a stupid criminal.
I once did a human rights report on the criminal justice system in El
Salvador. I didn't expect the Salvadorans to teach me much abouthuman
rights. But I learned that, unlike the US, El Salvador greatly
restricts the testimony of "turned" co-conspirators. Why? Because the
co-conspirator is usually "turned" either by a threat of mistreatment
or by an offer to reduce his punishment. Either way, the process
raises moral questions -- and creates an incentive for false
accusations.
Wiretaps have no such potential for coercive use. The defendant is
convicted or freed on the basis of his own, unarguable words.
As an attorney, I really wish it were this simple. The NSA is trying to
insulate this argument from the Constitution. Apparently the courts
have other ideas about the pitfalls of wiretapping considering the
rather strict rules they have imposed on it. In addition, the argument
is not merely about the value of wiretapping. It is the methods
employed that are a concern. If the methods are unsound, why are we
pouring thousands, millions of dollars (billions if you include DigiTel)
into this project? "Stupid" criminals are not the type that need a
project like Clipper to get caught.
In addition, the world will be a safer place if criminals cannot take
advantage of a ubiquitous, standardized encryption infrastructurethat
is immune from any conceivable law enforcement wiretap. Even ifyou're
worried about illegal government taps, key escrow reinforces the
existing requirement that every wiretap and every decryption must be
lawfully authorized. The key escrow system means that proof of
authority to tap must be certified and audited, so that illegal
wiretapping by a rogue prosecutor or police officer is, as apractical
matter, impossible.
I agree the world would be a safer place if criminals could not take
advantage of a standardized encryption structure, but how much better if
they can take advantage of a non-standard encryption structure? How
does Clipper assure us they cannot take advantage of either? Perhaps it
keeps criminals from taking advantage of a standard encryption
structure, but so would a 20 bit encryption standard. Mr. Baker's
assertion then holds true even if the government creates a secret
standard that is never released. The creation of this standard has
prevented criminals from taking advantage of a standardized encryption
system. Instead they have to resort to non-standard methods, which are
more secure anyway. Mr. Baker's statement is thus, entirely without
meaning.
Regardless, even with Clipper there is no showing how criminals will not
be able to take advantage of strong crypto. Even the statistics that
the various pro-clipper agencies like to tout show us that the primary
focus of wiretapping falls in to some distinct and demonized categories.
1> Drug dealers
2> Terrorists
3> Organized crime "gangs."
All of these targets are those most likely to have the resources and
organization to purchase non-escrowed cryptography, and the intelligence
to use it. Who is honestly going to assert that some drug organization
that builds a semi-submersible craft out of an aircraft nose at an
expense of millions of dollars to smuggle drugs into the United States
is going to just be careless and buy a Clipper phone? That a terrorist
organization will continue to use Clipper phones because a lackey tried
to get his deposit back at a rental car agency?
It is clear that Clipper will do none of these things. Instead it will
prevent (assuming only clipper phones are available) only the small time
and less resourced offenders from evading capture. Despite all the hype
and rhetoric, Clipper is basically an auto thief catcher, a small time
dealer working out of his home catcher.
MYTH NUMBER TWO: Unreadable encryption is the key to our future
liberty.
Of course there are people who aren't prepared to trust the escrow
agents, or the courts that issue warrants, or the officials who
oversee the system, or anybody else for that matter. Rather than rely
on laws to protect us, they say, let's make wiretapping impossible;
then we'll be safe no matter who gets elected.
Note the portrayal of the opposition. All of them are radicals, none
are those concerned about the economic consequences, or the
international markets, or the potential for United States espionage.
None of them are simply worried about the effectiveness of the program,
they are all anarchists.
This sort of reasoning is the long-delayed revenge of people who
couldn't go to Woodstock because they had too much trig homework. It
reflects a wide -- and kind of endearing -- streak of romantic
high-tech anarchism that crops up throughout the computer world.
I won't even dignify this character attack with a response. The reader
will judge the value of this argument him or herself
The problem with all this romanticism is that its most likely
beneficiaries are predators. Take for example the campaign to
distribute PGP ("Pretty Good Privacy") encryption on the Internet.
Some argue that widespread availability of this encryption will help
Latvian freedom fighters today and American freedom fighterstomorrow.
Well, not quite. Rather, one of the earliest users of PGP was a
high-tech pedophile in Santa Clara, California. He used PGP toencrypt
files that, police suspect, include a diary of his contacts with
susceptible young boys using computer bulletin boards all over the
country. "What really bothers me," says Detective Brian Kennedy ofthe
Sacramento, California, Sheriff's Department, "is that there could be
kids out there who need help badly, but thanks to this encryption,
we'll never reach them."
And Clipper will help this problem by? Encouraging smart pedophiles to
use it? It's clear this argument either has no merit, or foreshadows a
more sinister regulatory action.
There are good and bad sides to every technology. This pedophile
argument is akin to demonizing baseball bats because they might cause
harm. Or forbidding computers with accounting software because bookies
might use them. It is in the American tradition to legislate this way.
Look at the speed limit, the trends in Tort law. The assault weapons
ban. Everything is geared to the worst case. The good or bad of this
argument depends on how effective the legislation really is at
accomplishing its goal. Here it looks like Clipper, as it stands now,
would have done no good. This pedophile knew what was good for him in
the face of the law, and Clipper wasn't it. Unless the administration
is prepared to put their cards on the table and call for a ban on
encryption, this argument has absolutely no place here.
If unescrowed encryption becomes ubiquitous, there will be many more
stories like this.
And perhaps many more freedom fighter stories as well. This argument is
based on speculation that the author has assumed in order to prove.
Encryption will make the world better because it will be better, in
effect.
We can't afford as a society to protect pedophiles
and criminals today just to keep alive the far-fetched notion that
some future tyrant will be brought down by guerrillas wearing
bandoleers and pocket protectors and sending PGP-encrypted messagesto
each other across cyberspace.
Nor then, can we afford as a society to protect the rights of the
accused, and privacy in any form to keep alive the far-fetched notion
that some future tyrant will be brought down by people with the romantic
and old fashioned notion that some two hundred year old document might
have some merit. So I propose the Clippered Constitution.
This argument relies on your willingness to balance the rights of the
people against the need for law enforcement in this particular case.
Essentially what Mr. Baker is doing here is asking you to find that the
prospect of catching pedophiles (a prospect that is by no means a
certainty) is worth the sacrifice in privacy, and the expenditure in
cost.
The most efficient law enforcement known is a dictatorship, and if we
were to carry Mr. Baker's line of argument to it's conclusion, it is
only some old fashioned notion that people have rights that stops us
from eliminating all or nearly all crime. By Mr. Baker's standards it
seems that the exclusionary rule (which forbids the admission of
evidence wrongly obtained under the 4th amendment) might as well be
removed. Afterall, the guy is obviously guilty, we found him with 6
kilos of coke, so why let him go because our MEANS were not sound?
C'mon judge, this is some old fashioned and antiquated notion that the
right against unlawful search and seizure is important.
The fact is the problem is not approached this way in the United States
traditionally, and this argument is really a question of degree, not one
of yes or no.
MYTH NUMBER THREE: Encryption is the key to preserving privacy in a
digital world.
Even people who don't believe that they are likely to be part of
future resistance movements have nonetheless been persuaded that
encryption is the key to preserving privacy in a networked, wireless
world, and that we need strong encryption for this reason. This isn't
completely wrong, but it is not an argument against Clipper.
If you want to keep your neighbors from listening in on your cordless
phone, if you want to keep unscrupulous competitors from stealingyour
secrets, even if you want to keep foreign governments from knowing
your business plans, key escrow encryption will provide all the
security you need, and more.
I suppose this is provided you trust the government's ability to
preserve the security of the escrow, the ability of counterintelligence
to catch those who would steal it, the integrity of the government in
not exchanging the keys for whatever reason, the likelihood of the
government notifying the public if there has been a breach of security,
and the procedures of notifying the Clipper user after a warrant has
been issued for the key and then no crime has been discovered.
This is at the core then, a legal process argument. As long as we give
the keys to the right administrator, everything will be just fine. The
problem with that is you have to trust the government first, trust a
government to set the right standards for the release of keys, trust a
government that will never fall into another McCarthyism, never look at
another passport file for political reasons, and trust a government that
generally has an interest in compromising the system.
Even if you trust government as a whole, can you trust the segments of
the process?
DES is probably more than you need under many of these arguments, the
fact is its not everything you need in others.
But I can't help pointing out that encryption has been vastlyoversold
as a privacy protector. The biggest threats to our privacy in a
digital world come not from what we keep secret but from what we
reveal willingly.
For example, if we give our encryption keys to the government?
We lose privacy in a digital world because it
becomes cheap and easy to collate and transmit data, so that
information you willingly gave a bank to get a mortgage suddenly ends
up in the hands of a business rival or your ex-spouse's lawyer.
Restricting these invasions of privacy is a challenge, but it isn't a
job for encryption. Encryption can't protect you from the misuse of
data you surrendered willingly.
Why is this so? If there is a standard that is secure from everyone,
including the government, why can't I exchange my banking information,
my medical information, my whatever? This is a societal question, what
encryption CAN be used for is limited only by what the government will
allow it to be used for and market forces. All of these applications
could conceivably be protected by encryption. All of these applications
are thus, victims of potential government intrusions by Clipper. What
possible use could the government have for my transactions with my
Doctor?
This argument also has a ring of, "Since most people are killed with
bats, we need not limit guns." Personally, I'd like to see the killings
by BOTH reduced, but that doesn't mean I'm going to resort to banning
either one, or that I will ignore the one that kills "less."
Just because people do their taxes openly, I should be concerned that
the government might listen to my phone because I have bigger problems
to deal with?
Part of this has to do with the lack of "transparency" in encryption
systems as well. A completely transparent encryption method would
increase privacy as much as any system, be it escrowed or not. Why this
mandates Clipper, or somehow makes strong encryption less of an option,
is beyond me.
What about the rise of networks? Surely encryption can help prevent
password attacks like the recent Internet virus, or the interception
of credit card numbers as they're sent from one digital assistant to
another? Well, maybe. In fact, encryption is, at best, a small partof
network security.
Currently perhaps, but again, this says nothing of potential does it?
Some people, I agree, do not need a high level of privacy, others do.
The real key to network security is making sure that only the right
people get access to particular data. That's why a digital signature
is so much more important to future network security than encryption.
I would like to see a digital signature that does not use encryption of
some sort.
If everyone on a net has a unique identifier that others cannotforge,
there's no need to send credit card numbers -- and so nothing to
intercept.
"If everyone [] had a unique identifier...." "If everyone had a social
security number...."
And if everyone has a digital signature, stealing passwords
off the Net is pointless. That's why the Clinton administration is
determined to put digital signature technology in the public domain.
It's part of a strategy to improve the security of the information
infrastructure in ways that don't endanger government's ability to
enforce the law.
Digital signature technology can be put in the public domain without the
help of the government thank you very much.
Curfews don't endanger the government's ability to enforce the law
either, but they aren't without drawbacks.
MYTH NUMBER FOUR: Key escrow will never work. Crooks won't use it if
it's voluntary. There must be a secret plan to make key escrow
encryption mandatory.
This is probably the most common and frustrating of all the mythsthat
abound about key escrow.
Mostly because there is no effective counter argument. I do feel sorry
for Mr. Baker here, a little.
The administration has said time and again
that it will not force key escrow on manufacturers and companies in
the private sector. In a Catch-22 response, critics then insist that
if key escrow isn't mandated it won't work.
Again, this presupposes a trust in government. If you look at the words
in the original announcements, this is NOT what the government says
either. They insist that their program will be voluntary, and there are
"currently no plans" to enforce a ban on other encryption. If press
releases from the White House are per se reliable, then we have no need
of privacy at all since government can be completely trusted.
That misunderstands the nature of the problem we are trying to solve.
Encryption is available today. But it isn't easy for criminals touse;
especially in telecommunications. Why? Because as long as encryption
is not standardized and ubiquitous, using encryption means buying and
distributing expensive gear to all the key members of the conspiracy.
Up to now only a few criminals have had the resources,sophistication,
and discipline to use specialized encryption systems.
Yes, it is expensive, the cost of an old IBM and a 300 baud modem for
example. Certainly no petty thieves will use it.
Mr. Baker only points out the counter argument himself here. Clipper is
aimed at those who can afford encryption, and those people will have the
best there is to offer, namely, not Clipper.
What worries law enforcement agencies --what should worry them -- isa
world where encryption is standardized and ubiquitous: a world where
anyone who buys an US$80 phone gets an "encrypt" button that
interoperates with everyone else's; a world where every fax machine
and every modem automatically encodes its transmissions withoutasking
whether that is necessary. In such a world, every criminal will gaina
guaranteed refuge from the police without lifting a finger.
And Clipper will solve this how? If anything it hurts the goal of
making non-escrow encryption expensive because it generates a market for
it, and forces manufactures to undercut government subsidized
manufactures. The effect is a drop in cost as the non-escrow
manufactures try to keep competitive. This is classic Clinton
administration logic, the market will cease to function for as long as
it takes for us to implement our policy.
The purpose of the key escrow initiative is to provide an alternative
form of encryption that can meet legitimate security concerns without
building a web of standardized encryption that shuts law enforcement
agencies out. If banks and corporations and government agencies buy
key escrow encryption, criminals won't get a free ride. They'll have
to build their own systems -- as they do now. And their devices won't
interact with the devices that much of the rest of society uses. As
one of my friends in the FBI puts it, "Nobody will build securephones
just to sell to the Gambino family."
Your friend in the FBI clearly is a graduate of the Clinton/NSA school
of economics. People will build secure phones to sell to who is paying.
If that's the Gambino family, I promise some manufactures will be lining
up to the promised 2,000 phone order that will result. What a market
plus it would be to be the phone the Gambino family uses. Anyone who
really wanted security would be impressed; and the sales agents would
love the chance to look over their shoulder in the showroom and look
about before whispering in the prospective purchasers ear, "The Gambino
family just bought 2,000 of these, THAT'S how secure they are."
In short, as long as legitimate businesses use key escrow, we can
stave off a future in which acts of terror and organized crime are
planned with impunity on the public telecommunications system. Of
course, whenever we say that, the critics of key escrow trot outtheir
fifth myth:
And what then, do you make of the legitimate businesses who oppose
Clipper, of which there are many? What of the businesses who do
business internationally? What of the international fears that Clipper
causes. You might look at a recent article in the Toronto (Sun?) which
bears the opinion of the former Canadian Minister of Defense on the
subject to get a feel for how other countries would welcome such a
standard.
MYTH NUMBER FIVE: The government is interfering with the free market
by forcing key escrow on the private sector. Industry should be left
alone to develop and sell whatever form of encryption succeeds in the
market.
In fact, opponents of key escrow fear that businesses may actually
prefer key escrow encryption. Why? Because the brave new world that
unreadable encryption buffs want to create isn't just a world with
communications immunity for crooks. It's a world of uncharted
liability. What if a company supplies unreadable encryption to allits
employees, and a couple of them use it to steal from customers or to
encrypt customer data and hold it hostage? As a lawyer, I can sayit's
almost certain that the customers will sue the company that supplied
the encryption to its employees. And that company in turn will suethe
software and hardware firms that built a "security" system without
safeguards against such an obvious abuse. The only encryption system
that doesn't conjure up images of a lawyers' feeding frenzy is key
escrow.
I fail, as an attorney, to follow this argument. It is clear that it
would be hard to hold responsible a software company liable for the
"damage" the software causes. It is further hard to see how one could
win a suit that can't prove that data is held hostage, and not just
random garbage.
I don't know many judges that would be interested in holding liability
to extend this far for exactly the reason that Mr. Baker cites, it would
make business impossible to do in many contexts, not just encryption.
Telegraph companies are not, for example, per se liable for a loss in
communication that causes thousands, or even millions of dollars in
damage.
I suppose PGP is somehow responsible for the pedophiles crime? As an
accessory? I suppose gun manufactures are responsible for their
liability? I suppose we could sue the manufactures of cars used in get-
aways? I don't know where Mr. Baker got his law degree, but he doesn't
seem to understand the liability limiter of supervening cause.
In any event, the company could easily secure itself from liability in
the context Baker describes by instituting a company policy that
requires users of company lines for company business to turn a copy of
their key over. Even father, the company could provide pre-generated
keys and keep copies. Why is it that we must constantly rely on
government to do that which we can easily accomplish ourselves?
But there's a second and even more compelling reason why the key
escrow initiative can't fairly be characterized as interfering with
private enterprise: The encryption market has been more or less
created and sustained by government. Much of the market forencryption
devices is in the public sector, and much of the encryptiontechnology
now in widespread use in the private sector was funded, perfected, or
endorsed by the federal government.
I would like to see some evidence here. Indeed the security market is a
classic in free markets right now. There are several software vendors,
several private buyers, and the costs are driven lower by the very
extensive availability of public domain software for strong encryption.
Even aside this, Baker himself argues that the need for network security
is growing and getting more and more important in the private sector,
which Clipper is supposedly designed for.
And not by accident, either. Good encryption is expensive.
Not PGP, not RIPEM, not IDEA. Good encryption is cheap, and getting
cheaper, even in hardware implementations. Patents are on the road to
expiration, and licensing agreements are getting looser.
If it were so expensive, and if the market is so driven by the public
sector, why are you so concerned with:
"[A] world where
anyone who buys an US$80 phone gets an "encrypt" button that
interoperates with everyone else's;"
Again we see the Clinton/NSA school of economics in action. There is no
market for encryption in the private sector, so us regulating the market
in the private sector is really not market regulation.
It isn't
just a matter of coming up with a strong algorithm, although testing
the strength of an algorithm can be enormously time-consuming. The
entire system must be checked for bugs and weaknesses, a laboriousand
unglamorous process. Generally, only the federal government has been
willing to pay what it costs to develop secure communications gear.
That's because we can't afford to have our adversaries reading our
military and diplomatic communications.
That's led to a common pattern. First, the government develops,tests,
or perfects encryption systems for itself. Then the private sector
drafts along behind the government, adopting government standards on
the assumption that if it's good enough for the government's
information, it's good enough to protect industry's.
A pattern that is fast vanishing, and even gone. A pattern that burned
every 3rd world nation that bought into post war encryption distributed
by the USA, and every nation that thought DES was ok for diplomatic
encryption.
As encryption technology gets cheaper and more common, though, weface
the real prospect that the federal government's own research, its own
standards, its own purchases will help create the future I described
earlier -- one in which criminals use ubiquitous encryption to hide
their activities. How can anyone expect the standard-setting arms of
government to use their power to destroy the capabilities of law
enforcement -- especially at a time when the threat of crime and
terror seems to be rising dramatically?
There is implicit in this statement, a notion that the private sector is
screaming out loud for escrowed, and government approved, encryption.
I have seen quite the opposite.
By adopting key escrow encryption instead, the federal government has
simply made the reasonable judgment that its own purchases will
reflect all of society's values, not just the single-minded pursuitof
total privacy.
And this indicates that the government is not engaged in market
regulation how?
So where does this leave industry, especially those companies that
don't like either the 1970s-vintage DES or key escrow? It leaves them
where they ought to be -- standing on their own two feet. Companies
that want to develop and sell new forms of unescrowed encryptionwon't
be able to sell products that bear the federal seal of approval. They
won't be able to ride piggyback on federal research efforts. And they
won't be able to sell a single unreadable encryption product to both
private and government customers.
And so they have doubled the market, and twice the variety in product
line with the ability to ride out the storm when government cutbacks are
in order? Clinton/NSA economics again I suppose. Only this time the
markets won't be seperated in terms of export/domestic markets. There
can be a price disparity adjustment within the market that serves the
manufacturer.
Well, so what? If companies want to develop and sell competing,
unescrowed systems to other Americans, if they insist on hastening a
brave new world of criminal immunity, they can still do so -- as long
as they're willing to use their own money. That's what the freemarket
is all about.
Government subsidizes the manufacture and distribution of a "standard,"
buys thousands to create a market for them where no market before
existed, and then that's what free market is all about? Funny, last
time I checked, the United States has been trying to serve DeBeers (For
the last five years at least) for doing about the same thing in the
diamond market.
Of course, a free market in the US doesn't mean freedom to export
encryption that may damage US national security. As our experience in
World War II shows, encryption is the kind of technology that winsand
loses wars. With that in mind, we must be careful about exports of
encryption. This isn't the place for a detailed discussion of
controls, but one thing should be clear: They don't limit the
encryption that Americans can buy or use. The government allows
Americans to take even the most sophisticated encryption abroad for
their own protection. Nor do controls require that software or
hardware companies "dumb down" their US products.
They merely have to "dumb down" all their products.
Software firms have
complained that it's inconvenient to develop a second encryption
scheme for export, but they already have to make changes from one
country to the next -- in language, alphabet, date systems, and
handwriting recognition, to take just a few examples. And they'dstill
have to develop multiple encryption programs even if the US abolished
export controls, because a wide variety of national restrictions on
encryption are already in place in countries from Europe to Asia.
And so we will keep the current and highly effective export regulations
in place and there will never be a market for strong encryption in
either the U.S or abroad. Pure fantasy.
MYTH NUMBER SIX: The National Security Agency is a spy agency; it has
no business worrying about domestic encryption policy.
Since the National Security Agency has an intelligence mission,
Read: is a spy agency.
its
role in helping to develop key escrow encryption is usually treatedas
evidence that key escrow must be bad security. In reality, though,NSA
has two missions. It does indeed gather intelligence, in part by
breaking codes. But it has a second, and oddly complementary,mission.
It develops the best possible encryption for the US government's
classified information.
With code breakers and code makers all in the same agency, NSA has
more expertise in cryptography than any other entity in the country,
public or private. It should come as no surprise, therefore, that NSA
had the know- how to develop an encryption technique that provides
users great security without compromising law enforcement access. To
say that NSA shouldn't be involved in this issue is to say the
government should try to solve this difficult technical and social
problem with both hands tied behind its back.
Then the super smart NSA shouldn't need to classify the method used in
Clipper as no civilian could ever possibly find a weakness in it.
MYTH NUMBER SEVEN: This entire initiative was studied in secret and
implemented without any opportunity for industry or the public to be
heard.
This is an old objection, and one that had some force in April of
1993, when the introduction of a new AT&T telephone encryption device
required that the government move more quickly than it otherwisewould
have.
For those not in on the argument, AT&T had a (DES?) based hardware
encryption product that looked much like a caller I.D. box which
encrypted phone conversation quite well. AT&T was about to market the
device, and had produced a large lot ~8,000 units. NSA expressed
disapproval, bought the lot up almost entirely and destroyed the units
so AT&T wouldn't ruin the upcoming market regulation by flooding the
market with "real" encryption. In return (probably) AT&T got the
Clipper contract, and one might look at the recent support AT&T has
received in contract negotiations with Saudi Arabia from the
administration and draw your own conclusions.
Key escrow was a new idea at that time, and it was reasonable
for the public to want more details and a chance to be heard before
policies were set in concrete. But since April 1993, the public and
industry have had many opportunities to express their views. The
government's computer security and privacy advisory board heldseveral
days of public hearings. The National Security Council met repeatedly
with industry groups. The Justice Department held briefings for
congressional staff on its plans for escrow procedures well inadvance
of its final decision. And the Commerce Department took publiccomment
on the proposed key escrow standard for 60 days.
And despite strong corporate rejection government jumped on the project
anyhow. I have not heard any support from the private sector at all,
except maybe AT&T and those companies that smell a total ban and are
promising to support the new hardware to hold their place in the market.
I would like to hear from anyone who has heard otherwise, that is a
glowing review of Clipper by a private sector entity.
After all this consultation, the government went forward with key
escrow, [anyhow] not because the key escrow proposal received a []
warm reception, but because none of the proposal's critics was ableto
suggest a better way to accommodate society's interests in both
privacy and law enforcement.
Read: Public input was meaningless because we are much smarter.
Unless somebody comes up with one, key
escrow is likely to be around for quite a while. That's because the
only alternative being proposed today is for the government to design
or endorse encryption systems that will cripple law enforcement when
the technology migrates -- as it surely will -- to the privatesector.
And that alternative is simply irresponsible.
How about stay out of the commercial markets all together? Private
sectors are at least as effective at developing standards.
Let me summarize Mr. Bakers arguments:
1> Clipper doesn't create any new capability, because we have the
ability to do the same intrusive things we could do before.
2> Wiretaps are ok because they are not coercive
3> The radical civil libertarians, who are the only real resistors her,
want us to fall into anarchy, so they cant have any good points.
4> Because criminals cannot use standardized encryption, they cannot
use encryption
5> Because the keys are escrowed, threat of irresponsible government is
reduced.
6> The anti-clipper people are just geeks who missed woodstock, so they
can't have any perspective here.
7> Because a pedophile once used PGP, we have to have Clipper.
8> We can't let silly notions that the government might one day exceed
its bounds stop us from effective law enforcement.
9> The need for privacy isn't about Clipper, because Clipper provides
privacy.
10> Because we reveal so much about ourselves willingly, we don't need
encryption anyway.
11> The need for digital signatures mandates Clipper.
12> We are just trying to make strong encryption more expensive for
criminals, and just catch the stupid ones. So Clipper will limit crypto
to those with big resources, because one would have to be an idiot to
want to sell anything to criminals.
13> Government is not interfering with the market because government is
and will be the only market provider.
14> Companies won't use strong encryption because there is to much
liability in it.
15> The NSA is the best developer of crypto, and no one would ever
think of buying anything that does not bear the NSA seal of approval.
16> Because the purchase of escrow encryption by the government is
merely an imposition of values on the public, its not market regulation.
17> Software companies have been bemoaning the need to make different
standards for exporting crypto so we are going to impose a crippled
standard for all crypto and that will solve the problem.
18> The NSA is so good at making codes, we are exactly the people to be
doing it, and the other developers aren't as good at screening their
methods. Even so, we still need strong encryption because however bad
the private developers are, they are threatening to flood the world with
encryption we can't break.
19> Since we held pet hearings that looked like a show trial, the
public got to choose.
20> Since the public was too stupid to like escrow encryption, we're
going to go ahead with it anyhow; but this doesn't mean the public
wasn't involved! (This last one rings right up there with, if you don't
agree with me, I'll make you agree.)
For more information on the Clipper standard you can access WIRED's
Clipper archive via the following WIRED Online services.
[...]
_________________________________________________________________
Stewart A. Baker is the National Security Agency's top lawyer. He
worked briefly as Deputy General Counsel of the Education Department
under President Jimmy Carter, and he practiced international law at
Steptoe & Johnson, in Washington, DC. He has been at the NSA since
1992.
_________________________________________________________________
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