Department of Justice Key Escrow Procedures

U.S. Department of Justice
Washington, D.C. 20530

February 4, 1994

The following are the procedures for the release of escrowed key components in conjunction with lawfully authorized interception of communications encrypted with a key-escrow encryption method. These procedures cover all electronic surveillance conducted pursuant to Title III of the Omnibus crime Control and Safe Streets Act of 1968, as amended (Title III), Title 18, United States Code, Section 2510 et seq.

1) In each case there shall be a legal authorization for the interception of wire and/or electronic communications.

2) All electronic surveillance court orders under Title III shall contain provisions authorizing after-the-fact minimization, pursuant to 18 U.S.C. 2518(5), permitting the interception and retention of coded communications, including encrypted communications.

3) In the event that federal law enforcement agents discover during the course of any lawfully authorized interception that communications encrypted with a key escrow encryption method are being utilized, they may obtain a certification from the investigative agency conducting the investigation, or the Attorney General of the United States or designee thereof. Such certification shall

(a) identify the law enforcement agency or other authority conducting the interception and the person providing the certification;

(b) certify that necessary legal authorization has been obtained to conduct electronic surveillance regarding these communications;

(c) specify the termination date of the period for which interception has been authorized;

(d) identify by docket number or other suitable method of specification the source of the authorization;

(e) certify that communications covered by that authorization are being encrypted with a key-escrow encryption method;

(f) specify the identifier (ID) number of the key escrow encryption chip providing such encryption; and

(g) specify the serial (ID) number of the key-escrow decryption device that will be used by the law enforcement agency or other authority for decryption of the intercepted communications.

4) The agency conducting the interception shall submit this certification to each of the designated key component escrow agents. If the certification has been provided by an investigative agency, as soon thereafter as practicable, an attorney associated with the United States Attorney's Office supervising the investigation shall provide each of the key component escrow agents with written confirmation of the certification.

5) Upon receiving the certification from the requesting investigative agency, each key component escrow agent shall release the necessary key component to the requesting agency. The key components shall be provided in a manner that assures they cannot be used other than in conjunction with the lawfully authorized electronic surveillance for which they were requested.

6) Each of the key component escrow agents shall retain a copy of the certification of the requesting agency, as well as the subsequent confirmation of the United States Attorney's Office. In addition, the requesting agency shall retain a copy of the certification and provide copies to the following for retention in accordance with normal record keeping requirements:

(a) the United States Attorney's Office supervising the investigation, and

(b) the Department of Justice, Office of Enforcement Operations.

7) Upon, or prior to, completion of the electronic surveillance phase of the investigation, the ability of the requesting agency to decrypt intercepted communications shall terminate, and the requesting agency may not retain the key components.

8) The Department of Justice shall, in each such case,

(a) ascertain the existence of authorizations for electronic surveillance in cases for which escrowed key components have been released;

(b) ascertain that key components for a particular key escrow encryption chip are being used only by an investigative agency authorized to conduct electronic surveillance of communications encrypted with that chip; and

(c) ascertain that, no later than the completion of the electronic surveillance phase of the investigation, the ability of the requesting agency to decrypt intercepted communications is terminated.

9) In reporting to the Administrative Office of the United States Courts pursuant to 18 U.S.C. Section 2519(2), the Assistant Attorney General for the Criminal Division shall, with respect to any order for authorized electronic surveillance for which escrowed encryption components were released and used for decryption, specifically note that fact.

These procedures do not create, and are not intended to create, any substantive rights for individuals intercepted through electronic surveillance, and noncompliance with these procedures shall not provide the basis for any motion to suppress or other objection to the introduction of electronic surveillance evidence lawfully acquired.

U.S. Department of Justice
Washington, D.C. 20530

February 4, 1994

Key component escrow agents may only release escrowed key components to law enforcement or prosecutorial authorities for use in conjunction with lawfully authorized interception of communications encrypted with a key-escrow encryption method. These procedures apply to the release of key components to State and local law enforcement or prosecutorial authorities for use in conjunction with interceptions conducted pursuant to relevant State statutes authorizing electronic surveillance, and Title III of the Omnibus crime Control and Safe Streets Act of 1968, as amended, Title 18, United States Code, Section 2510 et seq.

1) The state or local law enforcement or prosecutorial authority must be conducting an interception of wire and/or electronic communications pursuant to lawful authorization.

2) Requests for release of escrowed key components must be submitted to the key component escrow agents by the principal prosecuting attorney of the State, or of a political subdivision thereof, responsible for the lawfully authorized electronic surveillance.

3) The principal prosecuting attorney of such State or political subdivision of such State shall submit with the request for escrowed key components a certification that shall

(a) identify the law enforcement agency or other authority conducting the interception and the prosecuting attorney responsible therefor;

(b) certify that necessary legal authorization for interception has been obtained to conduct electronic surveillance regarding these communications;

(c) specify the termination date of the period for which interception has been authorize;

(d) identify by docket number or other suitable method of specification the source of the authorization;

(e) certify that communications covered by that authorization are being encrypted with a key-escrow encryption method;

(f) specify the identifier (ID) number of the key escrow chip providing such encryption; and

(g) specify the serial (ID) number of the key-escrow decryption device that will be used by the law enforcement agency or other authority for decryption of the intercepted communications.

4) Such certification must be submitted by the principal prosecuting attorney of that State or political subdivision to each of the designated key component escrow agents.

5) Upon receiving the certification from the principal prosecuting attorney of the State or political subdivision, each key component escrow agent shall release the necessary key component to the intercepting State or local law enforcement agency or other authority. The key components shall be provided in a manner that assures they cannot be used other than in conjunction with the lawfully authorized electronic surveillance for which they were requested.

6) Each of the key component escrow agents shall retain a copy of the certification of the principal prosecuting attorney of the State or political subdivision. In addition, such prosecuting attorney shall provide a copy of the certification to the Department of Justice, for retention in accordance with normal record keeping requirements.

7) Upon, or prior to, completion of the electronic surveillance phase of the investigation, the ability of the intercepting law enforcement agency or other authority to decrypt intercepted communications shall terminate, and the intercepting law enforcement agency or other authority may not retain the key components.

8) The Department of Justice may, in each such case, make inquiry to

(a) ascertain the existence of authorizations for electronic surveillance in cases for which escrowed key components have been released;

(b) ascertain that key components for a particular key escrow encryption chip are being used only by an investigative agency authorized to conduct electronic surveillance of communications encrypted with that chip; and

(c) ascertain that, no later than the completion of the electronic surveillance phase of the investigation, the ability of the requesting agency to decrypt intercepted communications is terminated.

9) In reporting to the Administrative Office of the United States Courts pursuant to 18 U.S.C. Section 2519(2), the principal prosecuting attorney of a State or of a political subdivision of a State may, with respect to any order for authorized electronic surveillance for which escrowed encryption components were released and used for decryption, desire to note that fact.

These procedures do not create, and are not intended to create, any substantive rights for individuals intercepted through electronic surveillance, and noncompliance with these procedures shall not provide the basis for any motion to suppress or other objection to the introduction of electronic surveillance evidence lawfully acquired.

U.S. Department of Justice
Washington D.C. 20530

February 4, 1994

The following are the procedures for the release of escrowed key components in conjunction with lawfully authorized interception of communications encrypted with a key-escrow encryption method. These procedures cover all electronic surveillance conducted pursuant to the Foreign Intelligence Surveillance Act (FISA), Pub. L. 95-511, which appears at Title 50, U.S. Code, Section 1801 et seq.

1) In each case there shall be a legal authorization for the interception of wire and/or electronic communications.

2) In the event that federal authorities discover during the course of any lawfully authorized interception that communications encrypted with a key-escrow encryption method are being utilized, they may obtain a certification from an agency authorized to participate in the conduct of the interception, or from the Attorney General of the United States or designee thereof. Such certification shall

(a) identify the agency participating in the conduct of the interception and the person providing the certification;

(b) to conduct electronic surveillance regarding these communications;

(c) specify the termination date of the period for which interception has been authorized;

(d) identify by docket number or other suitable method of specification the source of the authorization;

(e) certify that communications covered by that authorization are being encrypted with a key-escrow encryption method;

(f) specify the identifier (ID) number of the key escrow encryption chip providing such encryption; and

(g) specify the serial (ID) number of the key-escrow decryption device that will be used by the agency participating in the conduct of the interception for decryption of the intercepted communications.

4) This certification shall be submitted to each of the designated key component escrow agents. If the certification has been provided by an agency authorized to participate in the conduct of the interception, a copy shall be provided to the Department of Justice, Office of Intelligence Policy and Review. As soon as possible, an attorney associated with that office shall provide each of the key component escrow agents with written confirmation of the certification.

5) Upon receiving the certification, each key component escrow agent shall release the necessary key component to the agency participating in the conduct of the interception. The key components shall be provided in a manner that assures they cannot be used other than in conjunction with the lawfully authorized electronic surveillance for which they were requested.

6) Each of the key component escrow agents shall retain a copy of the certification, as well as the subsequent written confirmation of the Department of Justice, Office of Intelligence Policy and Review.

7) Upon, or prior to, completion of the electronic surveillance phase of the investigation, the ability of the agency participating in the conduct of the interception to decrypt intercepted communications shall terminate, and such agency may not retain the key components.

8) The Department of Justice shall, in each such case,

(a) ascertain the existence of authorizations for electronic surveillance in cases for which escrowed key components have been released;

(b) ascertain that key components for a particular key escrow encryption chip are being used only by an agency authorized to participate in the conduct of the interception of communications encrypted with that chip; and

(c) ascertain that, no later than the completion of the electronic surveillance phase of the investigation, the ability of the agency participating in the conduct of the interception to decrypt intercepted communications is terminated.

9) Reports to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence, pursuant to Section 108 of FISA, shall, with respect to any order for authorized electronic surveillance for which escrowed encryption components were released and used for decryption, specifically note that fact.

These procedures do not create, and are not intended to create, any substantive rights for individuals intercepted through electronic surveillance, and noncompliance with these procedures shall not provide the basis for any motion to suppress or other objection to the introduction of electronic surveillance evidence lawfully acquired.

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