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US Senator Lott Criticizes FBI Crypto Plans (fwd)
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>From [email protected] Thu Oct 23 18:18:01 1997
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Date: Thu, 23 Oct 1997 18:01:40 -0400
To: [email protected] (Matthew Gaylor)
From: [email protected] (Matthew Gaylor)
Subject: US Senator Lott Criticizes FBI Crypto Plans
From: "--Todd Lappin-->" <[email protected]>
Subject: Senator Lott Criticizes FBI Crypto Plans
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From: http://www.cdt.org/crypto/legis_105/lott.html
In a statement entered into the Congressional Record, Senator Lott urged
his Senate colleagues to "deal with reality" by passing legislation to
relax cold-war era export controls on encryption, and to reject FBI efforts
to impose new domestic law enforcement access requirements.
Full text from: http://www.cdt.org/crypto/legis_105/971021_lott.html
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ENCRYPTION (Senate - October 21, 1997)
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[Page: S10879]
Mr. LOTT. Mr. President, I would like to report to my colleagues on the
activities in the House to establish a new export policy on encryption.
This is an issue that is still at the top of my list of legislation I
hope this Congress can resolve within the next 2 months. The House's
actions last month turned a spotlight on how this issue should
ultimately be resolved.
Let me briefly review the issue. Encryption is a mathematical way to
scramble and unscramble digital computer information during transmission
and storage. The strength of encryption is a function of its size, as
measured in computer bits. The more bits an encryption system has, the
more difficult it is for someone else to illegally unscramble or hack
into that information.
Today's computer encryption systems commonly used by businesses range
from 40 bits in key length to 128 bits. A good hacker, let's say a
criminal or a business competitor, can readily break into a computer
system safeguarded by a lower-technology 40-bit encryption system. On
the other hand, the 128-bit encryption systems are much more complex and
pose a significant challenge to any would-be hacker.
Obviously, all of us would prefer to have the 128-bit systems. And
equally as important, we would like to buy such systems from American
companies. Firms we can routinely and safely do business with. Foreign
companies and individuals also want to buy such systems from American
companies. They admire and respect our technological expertise, and
trust our business practices. The United States remains the envy of the
world in terms of producing top-notch encryption and information
security products.
However, current regulations prohibit U.S. companies from exporting
encryption systems stronger than the low-end, 40-bit systems. A few
exceptions have been made for 56-bit systems. Until recently, it has
been the administration's view that stronger encryption products are so
inherently dangerous they should be classified at a level equal to
munitions, and that the export of strong encryption must be heavily
restricted.
While we are restricting our own international commerce, foreign
companies are now manufacturing and selling stronger, more desirable
encryption systems, including the top-end 128-bit systems, anywhere in
the world they want. Clearly, our policy doesn't make sense. Just as
clearly, our export policies on encryption have not kept up to speed
with either the ongoing changes in encryption technology or the needs
and desires of foreign markets for U.S. encryption products.
My intention is neither to jeopardize our national security nor harm law
enforcement efforts. I believe we must give due and proper regard to the
national security and law enforcement implications of any changes in our
policy regarding export of encryption technology. But it is painfully
obvious we must modernize our export policies on encryption technology,
so that U.S. companies can participate in the world's encryption
marketplace. The legislative initiative on this issue has always been
about exports, but this summer that changed.
During the past month, the FBI has attempted to change the debate by
proposing a series of new mandatory controls on the domestic sale and
use of encryption products. Let me be clear. There are currently no
restrictions on the rights of Americans to use encryption to protect
their personal financial or medical records or their private e-mail
messages. There have never been domestic limitations, and similarly,
American businesses have always been free to buy and use the strongest
possible encryption to protect sensitive information from being stolen
or changed. But now, the FBI proposes to change all that.
The FBI wants to require that any company that produces or offers
encryption security products or services guarantee immediate access to
plain text information without the knowledge of the user. Their proposal
would subject software companies and telecommunications providers to
prison sentences for failure to guarantee immediate access to all
information on the desktop computers of all Americans. That would move
us into an entirely new world of surveillance, a very intrusive
surveillance, where every communication by every individual can be
accessed by the FBI.
Where is probable cause? Why has the FBI assumed that all Americans are
going to be involved in criminal activities? Where is the Constitution?
And how would this proposal possibly help the FBI? According to a
forthcoming book by the M.I.T. Press, of the tens of thousands of cases
handled annually by the FBI, only a handful have involved encryption of
any type, and even fewer involved encryption of computer data. Let's
face it--despite the movies, the FBI solves its cases with good
old-fashioned police work, questioning potential witnesses, gathering
material evidence, and using electronic bugging or putting microphones
on informants. Restricting encryption technology in the U.S. would not
be very helpful to the FBI.
The FBI proposal won't work. I have talked with experts in the world of
software and cryptography, who have explained that the technology which
would provide compliance with the FBI standard simply does not exist.
The FBI proposal would force a large unfunded mandate on our high
technology firms, at a time when there is no practical way to accomplish
that mandate.
Rather than solve problems in our export policy, this FBI proposal would
create a whole new body of law and regulations restricting our domestic
market.
This and similar proposals would also have a serious impact on our
foreign market. Overseas businesses and governments believe that the
U.S. might use its keys to computer encryption systems to spy on their
businesses and politicians. Most U.S. software and hardware
manufacturers believe this is bad for business and that nobody will
trust the security of U.S. encryption products if this current policy
continues. In fact, this proposal appears to violate the European
Union's data-privacy laws, and the European Commission is expected to
reject it this week.
So, the FBI proposal would: Invade our privacy; be of minimal use to the
FBI; would require nonexistent technology; would create new
administrative burdens; and would seriously damage our foreign markets.
This is quite a list.
Mr. President, the FBI proposal is simply wrong. I have learned that
even the administration does not support this new FBI proposal. So why
does the FBI believe it must now subject all Americans to more and more
surveillance?
This independent action by the FBI has created confusion and mixed
signals which are troublesome for the Senate as it works on this
legislation. Perhaps the FBI and the Justice Department need to focus
immediately on a coordinated encryption position.
Mr. President, I congratulate the members of the House Commerce
Committee for rejecting this FBI approach by a vote margin of more than
2 to 1.
I am sure all of my colleagues are sympathetic to the fact that emerging
technologies create new problems for the FBI.
But we must acknowledge several truths as Congress goes forward to find
this new policy solution. People increasingly need strong information
security through encryption and other means to protect their personal
and business information. This demand will grow, and somebody will meet
it. In the long term, it is clearly in our national interest that U.S.
companies meet the market demand. Individuals and businesses will either
obtain that protection from U.S. firms or from foreign firms. I firmly
believe that all of our colleagues want American firms to successfully
compete for this business. Today there are hundreds of suppliers of
strong encryption in the world marketplace. Strong encryption can be
easily downloaded off the Internet. Even if Congress wanted to police or
eliminate encryption altogether, I am not sure that is doable.
So, let's deal with reality. Clamping down on the constitutional rights
of American citizens, in an attempt to limit the use of a technology, is
the wrong solution. The wrong solution. This is especially true with
encryption technology because it has so many beneficial purposes. It
prevents hackers and espionage agents from stealing valuable
information, or worse, from breaking into our own computer networks. It
prevents them from disrupting our power supply, our financial markets,
and our air traffic control system. This is scary--and precisely why we
want this technology to be more available.
Only a balanced solution is acceptable. Ultimately, Congress must
empower Americans to protect their own information. Americans should not
be forced to only communicate in ways that simply make it more
convenient for law enforcement officials. This is not our national
tradition. It is not consistent with our heritage. It should not become
a new trend.
Mr. President, I would like to establish a framework to resolve this
difficult issue. I hope to discuss it with the chairmen and ranking
members of the key committees. I especially look forward to working with
the chairman of the Commerce, Science and Transportation Subcommittee on
Communications, Senator Burns. He was the first to identify this issue
and try to solve it legislatively. His approach on this issue has always
been fair and equitable, attempting to balance industry wants with law
enforcement requirements.
I believe there are other possible ideas which could lead to a consensus
resolution of the encryption issue. It is my hope that industry and law
enforcement can come together to address these issues, not add more
complexity and problems. The bill passed by the House Commerce Committee
included a provision establishing a National Encryption Technology
Center. It would be funded by in-kind contributions of hardware,
software, and technological expertise. The National Encryption
Technology Center would help the FBI stay on top of encryption and other
emerging computer technologies. This is a big step. This is a big step
in the right direction.
It is time to build on that positive news to resolve encryption policy.
Mr. President, there is an op-ed piece which appeared in the Wall Street
Journal on Friday, September 26. It is well written and informative,
despite the fact that its author is a good friend of mine. Mr. Jim
Barksdale is the president and CEO of Netscape Communications and is
well-versed in encryption technology. Mr. Barksdale's company does not
make encryption products; they license such products from others. They
sell Internet and business software and, as Jim has told me many times,
his customers require strong encryption features and will buy those
products either from us or foreign companies.
Again, let's deal with reality. The credit union manager in
Massachusetts, the real estate agent in Mississippi, the father writing
an e-mail letter to his daughter attending a California university, each
want privacy and security when using the computer. They will buy the
best systems available to ensure that privacy and security. And, in just
the same way, the banker in Brussels, Belgium, the rancher in Argentina,
and the mother writing e-mail to her daughter in a university in
Calcutta, India, each of these people also want privacy and security.
They also will buy the best systems available to ensure that privacy and
security. And they want encryption systems they trust--American systems.
That's what this debate is about.
Mr. President, if Congress does not modernize our export controls, we
run the real risk of destroying the American encryption industry. And we
risk giving a significant and unfair advantage to our foreign business
competitors.
[Page: S10881]
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