CFP'94 - DATA ENCRYPTION: WHO HOLDS THE KEYS? (Panel)

John Marshall Law School, March 23-26, 1994 in Chicago, IL.

This is a verbatim transcript of the session on "Data Encryption; Who Holds the Keys?" held at the Fourth Conference on Computers, Freedom and Privacy in Chicago on March 24, 1994. The transcription was done by an independent local transcription agency. Light editing was done by CFP volunteers to resolve items the agency could not be expected to have knowledge of (for example, "technical" terms like "PGP"). "Did X *really* say U?" questions can always be resolved by listening to the audiotape available as tape JM414 from Teach'Em, 160 East Illinois St, Chicago, IL 60611, 1-800-225-3775, for $10 + $1 ($2 outside US) shipping and handling + 8.75% sales tax.

Welcome to this program from the John Marshall Law School's fourth conference on computers, freedom and privacy entitled, "Cyberspace Superhighways: Access, Ethics & Control", held March 23rd through the 26th, 1994 at the Chicago Palmer House Hilton.

On this cassette you will hear Data Encrytion -- who holds the keys? Now to our program.

BOB SMITH - Willis Ware originally had been slated to being moderator for this panel and Willis had a problem and could not be with us and Robert Ellis Smith has agreed to fill in and use his technology background to fill in for Willis. It will take just a minute while we disengage from the T.V. hookup and get back to the modern overhead projector.

My name is Bob Smith. I publish privacy journal and actually I am moderating because Dave Banisar did not want to be moderator. We will hear from the three panelists with about three ten-minute presentations and then we will open it up to questions.

The three ground rules for this session: First, there will be no expansions of the metaphor of highways. We will not talk about highway metaphors for the next hour. Secondly, we will not accept as a defense that this issue is too sensitive or too complicated for us to understand and that we have to trust the government. And thirdly, a rule that I hope you will make work. If you hear a point of jargon or a point of technology that you don't understand, explanation -- not policy disputes but if there is something you don't understand feel free to raise your hand as a point of order. And if you can say it in ten words or less like, I don't understand, we'll get you an answer.

I think Senator Leahy provided a good primer for cryptography and so I won't bother with that and we'll get right into the nuts and bolts of this issue.

Our speakers are George Davida, who is with the University of Wisconsin in Milwaukee and has been involved in cryptography research for many years and was one of the first academicians to feel the heavy hand of government in the 1980's in its effort to try to curtail research into cryptography. That appears to be happening again in the 1990's so perhaps Professor Davida can tell us something about his experiences earlier on that same front.

Our second speaker will be Stuart Baker, who is General Counsel of the National Security Agency. He was a lawyer in private practice in Washington before joining NSA and one of the things he promised to do is to tell us exactly what NSA does and is because a lot of people don't know. It is different from the National Security Council by the way.

Thirdly, our third speaker will be David Banisar who is the Computer Professionals for Social Responsibility office in Washington. He is trained as a lawyer and has a background in computer science and has some strong feelings about the cryptography debate.

We will now move to Professor Davida.

PROFESSOR DAVIDA - I would like to talk about two issues that concern me and I believe a number of people here. By the way, I brought some copies of my paper in case you need one today. And if I don't have enough you can always write to me at that address. And I am also willing to put that on FTP for those of you who are on Internet and you can pick up a poster file and print it if you so wish.

As Robert said, in 1978 I had an interesting experience with NFA. I was doing research at the time in cryptograhy and one day I received a secrecy order by mail. It was more or less like a postcard telling me that under the penalty of three years in jail and $10,000 fine I am to talk to no one about what I had done in that paper without reference to any classified material.

At first my graduate student and I laughed until we found out that it was deadly serious. We talked to the Chancelor about it and he said, no way because in Wisconsin there is a strong position of academic freedom and we are not allowed actually to conduct research that's secret. So we decided to resist the order and after a number of conversations between the Chancelor and someone you might have heard about recently again, Admiral Bobby Inman, and the then Commerce Secretary Juanita Kreps, the order was lifted. But not before Admiral Inman tried to convince the Chancelor that he should acquiesce to the order and allow us to stay, but I am happy to say that the Chancelor said that we could not put up with the order.

Shortly thereafter a group was formed by the American Council on Education called Public Cryptography Study Group, not to be confused with Public Key Cryptosystems. And it is interesting that this group considered model legislation for censorship at first. I objected to it rather vigorously and when the press began to get involved in covering the meetings, they then approved what they called voluntary prior restraint. I again dissented from that report and the rest, as they say, is history.

Many people have asked, "why do you oppose restaints?" Very simply, that privacy is just too important to leave it just to agencies like NSA. I also felt that the ACE recommendations were dangerous because they were later going to be looked at as some kind of admission by allegedly knowledgeable people that cryptography is an evil tool that will only be used by terrorists and drug dealers. And it is interesting that Senator Leahy himself refers to the struggle of the law enforcement with crimes -- and I assume he is talking about drug dealers and what have you. But someone should point out to him that they are not using cryptography today so I don't know what the struggle is all about. They may be struggling against criminals -- not because of cryptography but simply because a crime is just a major problem. I would also like to tell them that I don't think that the intelligence agencies struggle when it comes to tapping ordinary law abiding citizens. They do very well, thank you.

I also think that the realities are very different because cryptography is extremely important for two very critical applications. Now so far you mostly hear about one of them which is privacy. But the other application that also needs privacy work on is authenticity, or identification. These are two extremely critical applications of cryptography. And what is interesting is that the current proposals -- again, you only hear about one of them -- actually constitute a double whammy -- because there are two proposals that are being put forth today. You only hear about Clipper but what you do not hear about as much is the other twin monster that which is the digital signature standard. Basically what they are trying to do with this -- with Clipper you lack privacy and with DSS you essentially lack the signature, the identification schemes -- the two most important operations/applications of cryptography.

So what will essentially happen is that not only can you invade privacy with digital signatures which will be essentially the new way of identifying yourselves to an awful lot of systems and executables. They will actually be able to deny your very existence if those systems are allowed to be only government issued because it will be impossible in the systems of the future not to use something like digital identification/ digital authentication schemes because there are no other effective means. You all know about the silly paper systems we use for identifications, and even high school students know how to fake ID's to drink. So we will be moving toward digital signatures and if there is only one digital signature it's essentially a proposal to have just one government Bic pen. That is what they would like us to have. One pen to sign our names with and sign our checks with and authenticate ourselves with.

Now again, as I said, privacy is one application and I have raised a number of objections to it because it has been again portrayed as a tool of crime and criminals and drug dealers. But they are not the only ones who will be using cryptography and more importantly, if we continue this policy they will be the only ones who will have good security because we will not have any security as to privacy. And as that saying goes "if you outlaw privacy, only outlaws will have privacy". It is very strange. I find myself wanting to go and join organizations like the NRA all of a sudden. I really do.

There is also an interesting sort of deception here going on with this so called escrow system. The problem is that, how in the hell can you escrow privacy. Go look at the definition of escrow -- it says that something of value held in trust is given back. Can you give back privacy? That is impossible. So I think that the very title of that is deceptive.

Then I was amused, as some of you might have been, with all the stories about bugging to look up a recent case of my friend Bobby Inman again, standing in front of television cameras saying that William Safire and Senator Dole were conspiring to get him with the President. And the question is, where is he getting this kind of data? Presumably he must because he spent his whole life, by the way, being very careful about what to say. You know, I can't imagine he is saying that without having something to back up with what he was claiming. So when we talk about bugging, just what do they do with all that data? Well, I think you have seen an example of what possibly may have been dealt with -- data that is intercepted.

Again, authenticity is another area that I think people should pay attention to. The second most important application of the use of identification, digital signatures for proving who you are and yet again they are proposing just one single big pen. I think that these two proposals jointly amount to what I consider a digital dragnet. Thank you.

STUART BAKER - I have a friend who gives speeches a lot and he likes to begin all his speeches by referring to country and western songs that sum up the theme of his talk. When he talks about U.S./Japan trade relations, he always starts out by referring to that classic "you got the gold mine, I got the shaft." And I thought about what David would have given as the country and western song that I should probably sing here and I think in relation to the Clipper Chip it would probably be "How can I miss you if you won't go away?"

There is a reason why the Clipper Chip won't go away and what I thought I would try to do very quickly because I only have ten minutes before the lynching begins is talk about why Key Escrow hasn't gone away by talking about some of the myths that are pretty prevalent about Key Escrow. I am not going to call it Clipper because there are a lot of products called Clipper. This is the internal name, not something that was used for the public. I don't object to people calling it Clipper but there probably are people who have Clipper products who would prefer that it not be called that.

Let me see if I can put the first one up.

[OH slide: Myth #1: Key escrow encryption will create a brave new world of government, intrusion into the privacy of Americans.]

I think this is pretty -- probably the classic opening statement about Clipper. That this is the beginning of some kind of brave new world in which everybody's privacy is at risk in a substantial new way. There is a lot of emotion behind that argument but not a lot of fact, because if you ask yourself if everybody in the United States used key escrow encryption and only key escrow encryption, which is not what the Administration has proposed by any means, what would the world look like? Well, the world would look like the world we live in today. It would be possible for the government to intercept communications subject to a variety of legal rules that make it very dangerous to go outside those rules. And, in fact, it would be a more private world because other people without authority would not be able to intercept and decrypt those communications. That is important because, in fact, there is somebody proposing a brave new world here and it is the people who want people to go away and to have unreadable encryption installed on all of the communications networks in the United States. That's a new world and that is a world we don't understand. We don't live in it today.

We don't know what it is going to be like if criminals or terrorists or other people who are hostile to society can use that sanctuary to communicate. We don't know what it is like but it probably won't be as pleasant in terms of freedom from crime and terror as the world we live today, which is not exactly a comforting thought. It won't be a world in which the government can do more than they do today. So if you ask yourself well, how bad is it today, that's as bad as it can get under Clipper.

[OH Slide: Myth #2: Unbreakable encryption is the key to our future liberty]

Now the response to that, that you hear from people, well, yeah but what if the Republicans get elected? What if the Administration changes? This is a guarantee. I don't want to have to rely on laws and procedures and escrow agents. I don't trust the escrow agents, I don't trust the courts, I don't trust the government, I don't trust anybody. I want to trust my machine.

Now that is not an uncommon way of thinking in the parts of this community. I said to somebody once, this is the revenge of people who couldn't go to Woodstock because they had too much trig homework. It's a kind of romanticism about privacy and the kind of, you know, "you won't get my crypto key until you pry it from my dead cold fingers" kind of stuff. I have to say, you know, I kind of find it endearing.

The problem with it is that the beneficiaries of that sort of romanticism are going to be predators. PGP, you know, it is out there to protect freedom fighters in Latvia or something. But the fact is, the only use that has come to the attention of law enforcement agencies is a guy who was using PGP so the police could not tell what little boys he had seduced over the net. Now that's what people will use this for -- not the only thing people will use it for but they will use it for that and by insisting on having a claim to privacy that is beyond social regulation we are creating a world in which people like that will flourish and be able to do more than they can do today.

[OH Slide: Myth #3: Encryption is the key to preserving privacy in a digital world]

I'll move quickly. There is another argument that I think is less romantic and that is the notion that technically, because we are all going to be networked, we are all going to be using wireless stuff -- we need encryption for privacy. I am not going to say that does not fit but it is a little oversold. Actually, I agreed with Professor Davida. Much of the privacy problems that we see in an electronic world are not because people are intercepting our communications, they're because we are giving it away. But what we don't like is that there are people now in a position that collate it all from public stuff that we willingly gave up. Well, you know, we gave this information to get a loan from one bank and before we know it, you know, our ex- spouse's lawyer has got it. That's a problem, but encryption won't solve it because you are going to have to give that information up if you want the benefit that the bank has.

Similarly the most important use for the protection for privacy, protection for data, is authentication -- digital signatures as opposed to privacy. I won't say that encrypting data for privacy purposes is irrelevant but it is probably not the most important way of guaranteeing privacy in an electronic age.

[OH Slide: Myth #4: Key Escrow won't work. Crooks won't use it if it's voluntary. There must be a secret plan to make key escrow encryption mandatory]

This will be familiar. You shouldn't over estimate the I.Q. of crooks. When I was first starting out as a lawyer I was in Portland, Maine and a guy walked into a downtown bank and he said, he handed a note to the teller, it said, "Give me all your money; I don't have a gun but I know where I can get one." I'm sure if you sent him out to buy encryption he for sure would buy the Clipper Chip.

I think this misstates the problem. The notion that what the government is trying to do is to put in everybody's hands this kind of encryption in the hopes that crooks will be fooled into using it I think is to misstate the nature of the concern. The concern is not so much what happens today when people go in and buy voice scramblers; it is the prospect that in five years or eight years or ten years every phone you buy that costs $75 or more will have an encrypt button on it that will interoperate with every other phone in the country and suddently we will discover that our entire communications network, sophisticated as it is, is being used in ways that are profoundly anti-social. That's the real concern, I think, that Clipper addresses. If we are going to have a standardized form of encryption that is going to change the world we should think seriously about what we are going to do when it is misused.

[OH Slide: Myth #5: Industry must be left alone for competitiveness reasons]

Are we interfering with the free market? Are we affecting the competitiveness of U.S. industry here? First, Clipper is an option. It is out there. People can use it. They can make it. They can not use it. And they can not make it. It's simply an additional option on the market. There may well be people who want this.

I am a lawyer. I think in terms of who is liable if something goes wrong. And I think that if it's your business, and you are thinking about buying encryption and the possibility that your employees will misuse it to rip-off your customers, you ask yourself, well who is going to be liable if that happens? You might think, "Geez, maybe I don't want to be in a position where I can't actually make sure the police can come in and check to see if people are misusing this encryption where I have reason to believe that they are."

Second, and this is a point that gets lost a lot: this is a standard for what the government is going to buy because nobody in this room has to buy this thing. Now the complaint is kind of remarkable from all the stand-on-your-own-two- feet, free-market, nobody-tells-me-what-to-do, organizations that we hear from. The fact is, that this is just what the government is going to buy, and the people who are complaining that they don't want to make it, or don't want to buy it, don't have to. What they are really saying is, we would like the government to go on testing equipment, telling us what the best stuff is so we can then go out and sell it without doing our own research, doing our own debugging, our own checks on this technology. I think if you think of it from the government's point of view you see why we don't want to do that. We probably -- there are very few institutions other than government that are willing to devote both the kind of energy and resources that it takes to eliminate the last few bugs in encryption software or machinery. To go through and find every possible attack and think about how to prevent it -- somebody once said, the airport guy talking about encryption he said, well, I'll take it if it is invisible, doesn't have any effect on the pilot, and adds lift to my airplane. There is an attitude about encryption that I think most of you have probably encountered in the commercial world is, "Yeah, I want it if it is free." But there is very little demonstrated inclination on the part of industry to spend a lot of its own money to develop independent encryption. And the fact is that a lot of the encryption that is out there today was designed with government money, or endorsed by government standards or otherwise supported by government fortresses. But if the government is going to create encryption and create markets and run the cost down, then we ought to be designing and buying encryption that we are willing to see migrate into the private sector without destroying the ability of law enforcement to deal with it.

And, I guess, the last point, people who don't want to sell to the government can make anything they want. People are willing to put their own money into designing encryption can do it. This is just what the governments fund.

AUDIENCE COMMENT - But you can't take it overseas. What the government buys is (inaudible) technical for overseas.

BAKER - This is also something that we hear a lot about and I'll deal with it quickly.

[OH Slide: Myth #6: NSA is a spy agency. It has no business worrying about domestic encryption policy]

Yeah, the NSA does indeed gather signal intelligence in foreign countries. But we have a second issue. Not only do we try to break people's codes but we make codes for the federal government. That means we have as a significant mission trying to design secure communications here that the government is going to use. And we face the very real concern that I described earlier, that if we design something and it's good and it's terrific stuff and the price goes down because the government has bought a lot of it, then other people are going to use it. It may end up becoming the most common encryption in the country. If that happens and people like this pedophile out in California start using it, we have some responsibility for that and therefore we have some responsibility to design and use encryption, that (if it does migrate to the private sector) does not put law enforcement out of business.

[OH Slide: Myth #7: The entire initiative was done in secret. There was no opportunity for industry or the public to be heard.]

This is my last one. Again, this was true, I think or at least it was a reasonable thing to say in April of '93 when the Clipper Chip first showed up in people's newspapers. But since then the Administration has done an enormous amount of public outreach listening to a variety of groups -- EFF, CPSR, industry groups, holding hearings, organizing task forces to listen to people. It is not that they weren't heard -- what I expect people to say is, yes but you still didn't listen. We said we don't like it. How come you still did it?

I think that the answer to that is you have to ask yourself, what is the alternative that people will propose. It is not enough in my view to simply say "Get rid of it. What we want is unreadable encryption so that we have a guarantee of privacy against some government that hasn't come to our country in 15 years or a hundred years or two hundred years, and in the same guarantee that criminals and other people who don't have society's interest at heart will have a kind of electronic sanctuary." That is not a very satisfying answer for people who have to uphold the law as well as try to get the national information infrastructure off the ground.

Thanks.

DAVE BANISAR - Well, first I'd like to say I'm not sure what song you were referring to in your country and western description, but I think if I had to choose a country and western song it would probably be "Take This Job and Shove It."

Moving onto the high road from now, I think what we have here is a really fundamental change in the way the communication system is being looked at in the future. Currently we have a situation where if somebody decides they need a wiretap, which is an issue I'll get to in a minute, whether it is useful or not, they go and they do an affirmative action. And the communication system is essentially set up to communicate. I use it to call.

These two proposals, digital telephony which we haven't talked about here too much and Clipper, change that around. They change it into a fundamental purpose for the communication sytem now is going to be, let's make it available for surveillance. Essentially, we are designing pretapped telephones and then we have to work on the assumption that at only authorized periods will they not turn those on. This is a fundamental change. It treats now every person as a criminal. We are looking at them going -- well, I think that every person in this room is a criminal so I will build the tap into their phone. Perhaps next they will be building microphones into everybody's desk chairs and only turning them on when they need them. Frankly, in reality I don't know if the law enforcement has really made the case for wire tapping. Just last week they busted the entire Philadelphia mob. They got it by putting a microphone in the lawyer's office. This book here, GangLand, it is all about how they got Gotti. They put microphones on the street to get Gotti. The FBI comes and they give us the four cases. They have the El- Rukh people here in Chicago which I believe was more like a scam to get some money out of the Libyan government. They have one pedophile, they have a couple of drug dealers and so on and they keep doing this.

I don't think they really made the case. There's only in reality 800 or so wire taps a year. They are only a part of the deal. A lot of busts, especially from Mafia, are done with inside people with microphones, with a lot of other technologies out there. The FBI has spent billions of dollars in the last ten years modernizing. They have an amazing computer system now, amazing DNA systems, amazing everything. They are not behind the scenes anymore, or behind the ball anymore.

To give you a new example: There were approximately a couple thousand arrests in 1992 that they say were attributable to electronic surveillance and that includes bugs. So it is hard to say how many of those were actually wire taps. In 1992 there were 14 million arrests in the United States. That's an awful lot of arrests and an awful small number of those had to do with electronic surveillance. Are we willing to revise our entire communication system just for that very small number? It is a question that needs to be asked.

Now we have a problem. I wish we could wave my magic wand here and solve the problem. [Takes out wand] You know, this is the magic wand that I can say crypto be gone, or crypto be strong. I don't know. It's not working. Oh well. So I have a couple solutions or a couple suggestions as they may be.

First is to withdraw the Clipper proposal. It's a bad idea. Nobody wants it. Of the CNN/Time Magazine poll 80% of the American public didn't want it. Industry doesn't want it. Fifty-thousand people signed our CPSR Clipper petition asking for its withdrawal. I haven't seen anybody in the world who wants this thing -- well, save two, but I won't mention them.

What should be done is to restart the process. Back in 1989 NIST was basically ordered to start a new process to return to make a new version of DES, or to replace DES with something else. And they had a good idea. They wanted it to be an open process. They wanted to look around, talk to people like they did back with DES and they eventually got that from IBM. They wanted a public algorithm that did both security and authenticity. They wanted it available in hardware and software. They wanted it to be a good strong standard for everybody. This hasn't happened.

You know, withdraw the Clipper proposal and start the process over. There's lots of people in this room even who could come up with something very good but the fact is that we have not been allowed to do it. We had, I guess, nine or ten months after Clipper came out which had been designed in secret for the last five years. In that time nobody has come out and supported the thing and lots of people have had better ideas. But they came back a couple weeks ago and came out with the exact same proposal with one or two typos replaced. But that's about it.

The second thing we need to do is revise the law. We need to do this since NIST is the agency that is supposed to be in charge of this. We should make NIST subject to the same kind of rules that every other government agency has to go by. Why should NIST have lower standards to develop these crypto things which will affect all of our privacy than the FCC does when they hand out a radio license; when the Environmental Protection Agency does when they determine how much toxic waste we can survive in? The basis for this, for any of you that are lawyers in the room, is known as the Administrative Procedures Act. It is very well established, it has been around 40 years. Every other government agency, every other public government agency uses it already and it works well. The things that go under this rulemaking is that it is open. It is done in the open. There's no communications behind the scenes. It's all done in the public eye. The decision -- when they finally make a decision -- is based on the public record. It is not based on something on a classified study. And it is appealable. If we think that we've been screwed we can appeal.

Finally, as we heard three or four times today, we need an independent privacy commission. Simply speaking, there is nobody in this government -- in the U.S. government -- who is responsible for privacy. To look around and say, wait a second, this isn't working. I mean, what kind of government do we have that comes up with something on surveillance and calls it the "Communication Privacy Improvement Act"? What we need is a government agency that can look around and give an independent assessment on what's going on. And it can't be shunted aside or ignored or anything like that. We have to realize, and I apologize for breaking Bob's ground rules, that we're building the national information infrastructure without any guard rails. And we need to think about it and get back.

Thank you.

BOB SMITH - Questions, short and sweet. We have limited time.

CHARLES MARSON - Charles Marson, lawyer of San Francisco. I would like to ask a question of the General Counsel. I have to say, this may be my one lifetime opportunity.

A lot of the Administration's case for the Clipper depends on a reliance and a level of comfort with present law. We are always told present law covers these things we are not extending anything. Present law requires your agency, sir, to apply to the foreign intelligence court for a warrant. CBS News issued a report last month that said that -- I think it was 4,500 applications had been made to that court -- all appointed by Chief Justice Renquist, and 4,500 have been granted. That is to say not one has been denied. Now in terms of our comfort level with present law will you tell us why it is that we should not conclude that this court is nothing but a Fourth Amendment fig leaf and that your agency is in fact free to tap anybody it wants.

STU BAKER - There's an interesting element -- I think you have to understand bureaucratic behavior in part here.

CHARLES MARSON - My fear is that I do, sir. [Laughter] A real tap whomever you please.

STU BAKER - Let's bear in mind, these are all Article III judges. I actually don't know that the figures you gave are right. But these are Article III judges from all over the country. They are used to seeing law enforcement wire taps and to reviewing them carefully. Their whole life is sticking to the law.

CHARLES MARSON - If they said yes all the time, who cares?

STU BAKER - Well, I -- let me offer an alternative explanation for the record of the courts and the agency in terms of FISA applications. And that is this. No one wants to be the first general counsel whose application is turned down. Nobody wants to get creative about what you can do and what you can't do. And so the effect of putting into judicial review is not so much that it is going to lead to judges rejecting a lot of stuff as much as it will make the agency make sure that before it takes something to the court, it is absolutely confident it has a case that it can make, that the judge will accept as fitting within the standards set by the statute. It's for the same reason that prosecutors don't like to bring cases that they don't think they can win. People do not like to try and fail and they consequently are very careful about what they put forward. I think that in fact is a more creditable explanation of the figures that you gave if they are right than the explanation you gave which is that judges don't care what the law is. I don't think that's true.

SPEAKER - Could we move on to the next question, thank you.

PHIL ZIMMERMANN - That explanation reminds me of the Doonsberry cartoon about grade inflation where some students sued for not getting an "A" in this course and in the courtroom they said that this university gave an "A" to all students. How is it possible that the entire graduating class had an "A" average of 4.0 and they said, well, you know, it's just a great class. So I guess all those guys that applied for the wiretap orders through that judge, all those judges, absolutely all of them did everything right. It's sort of a grade inflation for wire tap requests. One thing that bothers me about this process of Clipper ....

MODERATOR - Your name please.

PHIL ZIMMERMANN - I'm sorry. I'm Phil Zimmerman. I am the author of PGP [applause]. I'm sorry, I didn't hear the part about what is your name.

It seems to me that this Clipper process has some kind of secret game plan that the government is following through that we only find out about each step of it as it unfolds. I saw on the net some news about some representative of the U.S. government going -- it might have been from NSA -- talking to people in Europe, other countries in Europe, about them getting their own Clipper systems. Well, that seems like a public policy thing that we should have been discussing openly here before sending somebody over there to quietly do horizontal escalation and get this Clipper thing glued in worldwide, planetwide before .... thus making it harder to reverse later.

MODERATOR - Could you phrase the question? The line behind is getting restless.

ZIMMERMANN - Okay, okay. I think that this kind of secretive agenda is not being treated like other public policy issues like health care and things like that that are openly debated. It's like we are being treated like an enemy foreign population to be manipulated cynically. And so I would like somebody to respond to that, whoever wants to respond to that -- why can't we be treated like ...

MODERATOR - Let's hear the response.

ZIMMERMANN - Okay.

STU BAKER - There isn't a secret plan.

AUDIENCE - (Negative response from the audience.)

STU BAKER - But, all right, there will be -- we're not the only place that's worried about law enforcement and criminal misuse of the communications system. Every country in the world is going to be concerned about that -- it is no surprise. Today France says we will tell you what you can use, what you can export, what you import. Singapore, we've had lots of companies say we're concerned about that.

ZIMMERMANN - Singapore -- it's illegal to not flush the toilet in Singapore. I didn't make that up, that's true. It's possible to construct a society -- a crime-free society -- but who wants to live in a society like that? We might be heading toward Singapore. I'm glad you said Singapore -- I couldn't have paid you money to say that -- I'm glad you said Singapore.

STU BAKER - But look, Italy has just banned forms of encryption on the phone system. The significance I think of the Singapore example is that we shouldn't expect that as Asians get richer they are going to say, oh well, let's adopt American views about privacy. What's important about that, I think, is the view that we get from a lot of people whose life has been open systems and will have seen that standards are the key to new technological advances, believe that if they could standarize encryption and sell it everywhere in the world, it would sweep the world and whoever had the best product would win. I think that reckons without the law enforcement concerns that you will see in every country. And you are already beginning to see other countries say we are not going to tolerate unreadable encryption of all sorts proliforating throughout our communications network. You are going to see more of that. Not less. It won't happen here but it will happen in other countries.

AUDIENCE - Yes, worldwide.

MODERATOR - Can we move onto the next question? And we probably have time for only two more.

BLAKE SOBILOFF - My name is Blake Sobiloff and I'm with ACM SIGCAS and I'm trying to figure out some sort of philosophical presupposition that you have -- the kind that frames your approach to your objections to anti-Clipper individuals.

BAKER - Most of the anti-Clipper individuals I really like actually.

BLAKE SOBILOFF - Okay, well, their position. Would it be fair to characterize your position as one that assumes that a desire for an unimpeachable privancy can be fairly well equated with the desire to engage in lawless acts?

BAKER - No, I think that's completely wrong. The problem is that guaranteeing privacy to everybody is going to guarantee it to some people who will misuse that kind of technological sanctuary.

AUDIENCE - (Negative response.)

BAKER - All right, okay. Well, to continue the poor song metaphor, if anyone is familiar with the Spin Doctors rock group. Let me say that you are a fantastic Spin Doctor and I do admire you for that but I'll keep my pocket full of kryptonite. Thanks.

QUESTION - Can I make a comment on that.

BAKER - Yes.

QUESTION - I think it is important to say something about who asked NSA to be the guarantor of privacy. Asking NSA to guarantee privacy is sort of like asking Playboy to guard chastity belts.

BAKER - I tried to address that briefly. Our job is in fact to guarantee the privacy of U.S. government communications when they're talking about whether to go to war, for example. That's one of the things we do and it is one of our two principle missions. We do guarantee privacy. Now I understand the reaction but we do have a job to create encryption and to make it as good as we possibly can.

AUDIENCE - Not for my privacy.

BAKER - My concern is that what we design is very likely to be -- to find itself migrating into private sector and if we design it in a way that is going to put law enforcement out of business we haven't acted responsibly.

MODERATOR - Next question.

HERB LIN - My name is Herb Lin. I'm with the National Academy of Sciences regarding the need for an independent look at it. The U.S. Congress has asked the Academy to undertake an independent assessment of national cryptography policy. Descriptions of that study are out on the giveaway desk. I'll be glad to talk to anybody about it.

MODERATOR - Thank you. We've got one more.

(Unknown) - My name is Barbolin (?) from GRC (?). I have a question concerning the algorithm that is used in the Clipper Chip, Skipjack. That algorithm is not being made public and yet one of the very basis of scientific research is that the work should be published and then reviewed by the community and approved as the state-of-the-art develops. Yet it seems that the NSA reluctant to do that. There is a certain amount of conjecture that in fact the algorithm contains a deliberately encoded weakness that will allow the NSA, without access to the escrow keys, to be able to intercept communication in their mission to monitor on- shore and off-shore communications. There's a number of us in the scientific community that are greatly concerned that that algorithm is not being made public. I would like the counsel from NSA to address that with a simple yes or no answer. Is that a problem? And then I would like our university professor to comment on his opinion in this matter.

BAKER - I'll answer it yes or no if you'll tell me exactly the question.

UNKNOWN - Does it or does it not contain a weakness that allows you to intercept the communications without access to the escrow keys.

BAKER - No.

MODERATOR - I'm sorry, that has to be the last question. We will conclude. I'm sorry, we have to stick to the schedule. [Negative audience response.] We'll conclude with another country song which is ....

GEORGE TRUBOW, CONF. CHAIR - Let me explain to you what our problem is. During the reception this room is going to be cleared and turned into the dining room for our meal this evening and so the hotel has a schedule; and if you want to give up the evening reception and meal we could do that but that's why we've got to close out. You want to go for a little longer. Okay, how about this for a promise, we'll quit at six (pm) which will give us another seven minutes. All right.

PROFESSOR DAVIDA - I will comment just very briefly about this issue of standards and algorithms.

I've worked for almost 20 years in organizations like IEEE(?) Computer Society and we have addressed issues like standards. It is important to understand what a standard is. Standards' purposes are primarily to promote trust in commerce and the products that you are actually engaging in, buying or using. DES and other encryption standards deviate from that substantially. These are not standards that set a boxing or weight standard, or a packaging standard, which is what most electronic standards and computer standards tend to be like. For example, there is no standard that says you must use the Intel 8085 or whatever. There is no standard that says you must use a particular chip. The standards pertain to buses, number of bytes and what have you. DES and other standards like that force us to adopt something which is basically monopolistic. It is specific algorithm. So there are some fundamental faults with it. But as for trusting algorithm that somebody else designed, I stand by my previous comment.

MODERATOR - Thank you.

MIKE GODWIN - I'm Mike Godwin with the Electronic Frontier Foundation and I have a question, as you can image for the General Counsel of the NSA.

You said in myth number four that we can anticipate -- and in fact NSA did anticipate that these technologies would become available in five to ten years. People would go buy telephones, have an encryption button and be able to use this technology -- I think I am quoting you accurately -- in profoundly anti-social ways. Isn't it true that many otherwise acceptable technologies can be used by individuals in profoundly anti-social ways including, say the printing press. Isn't it in fact true that in a democratic society we make a decision to empower individuals knowing upfront and openly that we do so taking risk about society. Isn't that in fact the case in this country?

BAKER - Yes. And first I should say, Mike, I haven't met you but I've read your stuff and actually, is David Sternlight here too?

Sure you take risks and you have to look at each technology as it comes. Let's take a look at cars. Cars have advantages and risks and how do we deal with that. We put license plates on every car and everybody has to have a license plate on their car even if they think it violates their First Amendment Rights to do it.

MIKE GODWIN - In fact, automobiles are a little bit different because we do have explicit Constitutional guarantees with regard to communications. We have implicit and explicit guarantees as regard to privacy and it is a little bit different from driving your Ford.

BAKER - Well, actually there is a Constitutional right to travel.

MIKE GODWIN - There is a Constitutional right to travel, that's correct. But we are talking -- it's still a false analogy. This is a central right. You know, Hugo Black said that there is a reason for the First Amendment to be a First Amendment.

BAKER - This is why I never get on the net with you, Mike.

MIKE GODWIN - So I take it you've answered my question. The reason -- the thing that really troubled me about your comments is that you did talk about France and Italy and Singapore and it seems to me worth pointing out that the theory of government that we have in this country is a little bit different from the theory of government in France, Italy and Singapore. (Applause)

BAKER - Absolutely. I don't think that we will ever have the same view of government that any of those places have.

MIKE GODWIN - I'm confident.

BAKER - And I think the short answer is, yes, as each technology comes along we have to evaluate the risks and the rewards that come with it and try to figure out the way to get as much good from it and as little bad from it. And the response is going to be very variable depending on the technology. But you can't set up a principle that says we will always do whatever seems like the best technology today without regard for the social consequences. We don't do that with guns, we don't do that with cars, we don't do that with any kind of technology.

MODERATOR - Can we go on to another question?

JOHN BRIMACOMBE - Hi, my name is John Brimacombe I'm a European scientist and user of cryptography. I'd like to go through something very quickly here. First, you know, people know about cryptography in Europe. We know about all the algorithms. Secondly, you know, scientists in Europe don't have brains so defective that we can't implement them. And there is going to be a big market for this sort of stuff out there in the world. Now, we can do that work, we are doing that work, we like doing that work. You are cutting yourselves off. My question is, why are you screwing yourselves this way? My worry looking at your nice salesmen of your shiny Clipper Chip coming to sell it to all my CEC people. I'm worrying that you see this problem. You see yourselves being put out of the market by these nice Europeans. They say, okay, let's go and screw their market up to a Clipper.

MODERATOR - No response?

BAKER - No, I liked the speech.

MATT BLAZE - Matt Blaze from Bell Labs. I have a question that was originally for Senator Leahy but it could be equally well directed to the NSA Counsel. Do you see any risks in terms of risk assessment of the Clipper proposal to the fact that the escrow procedures exist entirely within the purview of the Executive Branch, the Attorney General in particular, and can be changed essentially at will entirely within a single branch of government?

BAKER - I think that's a reasonable concern. One of the interesting things is that we designed it so you decide who you trust and that's where the keys go as a society. And we didn't have much input into who holds the keys. This is almost a litmus test though. It is kind of interesting when you ask, well who do you trust, exactly? And often the answer is "Well, just not those guys." And it is much harder when you ask the question, "Well who would you trust?" I think Jerry Berman was quoted as saying I don't care if it is Mother Theresa and the Pope who holds the keys. There certainly are people who feel that way. There is a lot of talk about whether, you know, should you have private sector entities hold the keys and I have to say that one doesn't

...

MODERATOR - I have to say through the escrow agency. The procedures are written and under the authority of the -- entirely within the Attorney General.

BAKER - The procedures don't change the fact that we are all governed by laws that are already on the books that make it a felony to do stuff without authority. And so the procedures for withdrawing key are written down as Executive Branch rules but the legal framework for that is set by Congress or by the Fourth Amendment as a matter of fact.

EFREM LIPKIN - I'm Efrem Lipkin that works in community and I guess I'm a fossil from the '60's. My parents had to deal with HUAC. I had the utterly surreal experience -- I was in the Civil Rights Movement -- I had this surreal experience of apparently a government agent tried to plant a copy of the Daily Worker on me. And so my question is really for CPSR. Why, I understand why the NSA says we don't have to worry about this government. We haven't had any trouble with it recently. But why doesn't CPSR point out all of the trouble we have had and how the protection -- the privacy protection we want and that we historically needed -- is from the government.

BANISAR - Well, obviously, you haven't been reading a whole lot of my press releases. We've been pointing out a lot of the abuses and problems that have been going on. We have also some deep concerns to pour off here a little bit about the escrow procedures. At the end of each escrow procedure it mentions that they are not enforceable so if they are violated it wouldn't matter because this evidence can't be suppressed. Frankly -- I guess somebody asked me today -- Mike Nelson from OSTP apparently now is talking about putting the escrow key holders outside the government. I frankly think that it wouldn't make a whole world of difference whether Mother Theresa and the Pope held the keys then if they are not enforceable.

MODERATOR - Thank you, thanks to all the panelists for coming. We'll conclude with another country song, "I've Enjoyed About as Much of This as I Can Stand."

Just a moment please, there is a related announcement on an equally high note I want to read this to you and to my colleague here. To a dedicated advocate, gifted journalist, generous friend and true champion of freedom, Robert Ellis Smith. publisher, Privancy Journal, in recognition of 20 years in service to the cause of privacy protection. With warm regards from friends and colleagues in celebrating the 20th year of the publication of this fine journal.

ROBERT ELLIS SMITH - I have a few words I would like to say.

END OF TAPE

Return to the CPSR home page.