On June 9, 1993, Congressman Edward Markey, Chairman of the House Subcommittee on Telecommunications and Finance held an oversight hearing on "encryption and telecommunications network security." Panelists were Whitfield Diffie of Sun Microsystems, Dr. Dorothy Denning, Steven Bryen of Secure Communications, Marc Rotenberg of the CPSR Washington Office and E.R. Kerkeslager of AT&T. Congressman Markey, after hearing the testimony presented, noted that the Clipper proposal had raised an "arched eyebrow among the whole committee" and that the committee viewed the proposal skeptically. This statement was the latest indication that the Clipper proposal has not been well recieved by policy makers. Last Friday, the Computer Systems Security and Privacy Advisory Board of NIST issued two resolutions critical of the encryption plan, suggesting that further study was required and that implementation of the plan should be delayed until the review is completed. At the Third CPSR Cryptography and Privacy Conference on Monday, June 7, the Acting Director of NIST, Raymond Kammer, announced that the implementation of the proposal will be delayed and that a more comprehensive review will be undertaken. The review is due in the fall. Kammer told the Washington Post that "maybe we won't continue in the direction we started out."Prepared Testimony and Statement for the Record of Marc Rotenberg, director CPSR Washington Office on Encryption Technology and Policy Before The Subcommittee on Telecommunications and Finance. Committee on Energy and Commerce U.S. House of Representatives June 9, 1993 SUMMARY The cryptography issue is of particular concern to CPSR. During the past several years CPSR has pursued an extensive study of cryptography policy in the United States. CPSR has organized public conferences, conducted litigation under the Freedom of Information Act, and has emphasized the importance of cryptography for privacy protection and the need to scrutinize carefully government proposals designed to limit the use of this technology. To evaluate the Clipper proposal it is necessary to look at a 1987 law, the Computer Security Act, which made clear that in the area of unclassified computing systems, the National Institute of Standards and Technology (NIST) and not the National Security Agency (NSA), would be responsible for the development of technical standards. The Act emphasized public accountability and stressed open decision-making. In the spirit of the Act, in 1989 NIST set out to develop a public key cryptography standard. According to documents obtained by CPSR through the Freedom of Information Act, NIST recommended that the algorithm be "public, unclassified, implementable in both hardware or software, usable by federal Agencies and U.S. based multi-national corporation." However, the Clipper proposal and the full-blown Capstone configuration that resulted is very different: the Clipper algorithm, Skipjack, is classified; public access to the reasons underlying the proposal is restricted; Skipjack can be implemented only in tamper-proof hardware; it is unlikely to be used by multi-national corporations, and the security of Clipper remains unproven. The Clipper proposal undermines the central purpose of the Computer Security Act. Although intended for broad use in commercial networks, it was not developed at the request of either U.S. business or the general public. It does not reflect public goals. The premise of the Clipper key escrow arrangement is that the government must have the ability to intercept electronic communications. However, there is no legal basis to support this premise. In law there is nothing inherently illegal or suspect about the use of a telephone. The federal wiretap statute says only that communication service providers must assist law enforcement execute a lawful warrant. CPSR supports the review of cryptography policy currently underway at the Department of Commerce. CPSR also supports the efforts undertaken by the Subcommittee on Telecommunications and Finance to study the full ramifications of the Clipper proposal. However, we are not pleased about the review now being undertaken at the White House. That effort has led to a series of secret meetings, has asked that scientists sign non-disclosure agreements and accept restrictions on publication, and has attempted to resolve public concerns through private channels. This is not a good process for the evaluation of a technology that is proposed for the public switched network. Even if the issues regarding Clipper are resolved favorably, privacy concerns will not go away. Rules still need to be developed about the collection and use of transactional data generated by computer communications. Several specific steps should be taken. First, the FCC should be given a broad mandate to pursue privacy concerns. Second, current gaps in the communications law should be filled. The protection of transactional records is particularly important. Third, telecommunications companies should be encouraged to explore innovative ways to protect privacy. "Telephone cards", widely available in other countries, are an ideal way to protect privacy. TESTIMONY Mr. Chairman, members of the Subcommittee, thank you for the opportunity to testify today on encryption policy and the Clipper proposal. I especially wish to thank you Congressman Markey, on behalf of CPSR, for your ongoing efforts on the privacy front as well as your work to promote public access to electronic information. The cryptography issue is of particular concern to CPSR. During the past several years we have pursued an extensive study of cryptography policy in the United States. We have organized several public conferences, conducted litigation under the Freedom of Information Act, and appeared on a number of panels to discuss the importance of cryptography for privacy protection and the need to scrutinize carefully government proposals designed to limit the use of this technology. While we do not represent any particular computer company or trade association we do speak for a great many people in the computer profession who value privacy and are concerned about the government's Clipper initiative. Today I will briefly summarize our assessment of the Clipper proposal. Then I would like to say a few words about the current status of privacy protection. CLIPPER To put the Clipper proposal in a policy context, I will need to briefly to describe a law passed in 1987 intended to address the roles of the Department of Commerce and the Department of Defense in the development of technical standards. The Computer Security Act of 1987 was enacted to improve computer security in the federal government, to clarify the responsibilities of the National Institute of Standards and Technology (NIST) and the National Security Agency, and to ensure that technical standards would serve civilian and commercial needs. The law made clear that in the area of unclassified computing systems, NIST and not NSA, would be responsible for the development of technical standards. It emphasized public accountability and stressed open decision-making. The Computer Security Act also established the Computer System Security and Privacy Advisory Board (CSSPAB), charged with reviewing the activities of NIST and ensuring that the mandate of the law was enforced. The Computer Security Act grew out of a concern that classified standards and secret meetings would not serve the interests of the general public. As the practical applications for cryptography have moved from the military and intelligence arenas to the commercial sphere, this point has become clear. There is also clearly a conflict of interest when an agency tasked with signal interception is also given authority to develop standards for network security. In the spirit of the Computer Security Act, NIST set out in 1989 to develop a public key standard FIPS (Federal Information Processing Standard). In a memo dated May 5, 1989, obtained by CPSR through the Freedom of Information Act, NIST said that it planned: to develop the necessary public-key based security standards. We require a public-key algorithm for calculating digital signatures and we also require a public-key algorithm for distributing secret keys. NIST then went on to define the requirements of the standard: The algorithms that we use must be public, unclassified, implementable in both hardware or software, usable by federal Agencies and U.S. based multi-national corporation, and must provide a level of security sufficient for the protection of unclassified, sensitive information and commercial propriety and/or valuable information. The Clipper proposal and the full-blown Capstone configuration, which incorporates the key management function NIST set out to develop in 1989, is very different from the one originally conceived by NIST. ¥ The Clipper algorithm, Skipjack, is classified, ¥ Public access to the reasons underlying the proposal is restricted, ¥ Skipjack can be implemented only in tamper-proof hardware, ¥ It is Unlikely to be used by multi-national corporations, and ¥ The security of Clipper remains unproven. The Clipper proposal undermines the central purpose of the Computer Security Act. Although intended for broad use in commercial networks, it was not developed at the request of either U.S. business or the general public. It does not reflect public goals. Rather it reflects the interests of one secret agency with the authority to conduct foreign signal intelligence and another government agency responsible for law enforcement investigations. Documents obtained by CPSR through the Freedom of Information Act indicate that the National Security Agency dominated the meetings of the joint NIST/NSA Technical Working group which made recommendations to NIST regarding public key cryptography, and that a related technical standard for message authentication, the Digital Signature Standard, clearly reflected the interests of the NSA. We are still trying to determine the precise role of the NSA in the development of the Clipper proposal. We would be pleased to provide to the Subcommittee whatever materials we obtain. LEGAL AND POLICY ISSUES There are also several legal and constitutional issues raised by the government's key escrow proposal. The premise of the Clipper key escrow arrangement is that the government must have the ability to intercept electronic communications, regardless of the economic or societal costs. The FBI's Digital Telephony proposal, and the earlier Senate bill 266, were based on the same assumption. There are a number of arguments made in defense of this position: that privacy rights and law enforcement needs must be balanced, or that the government will be unable to conduct criminal investigations without this capability. Regardless of how one views these various claims, there is one point about the law that should be made very clear: currently there is no legal basis -- in statute, the Constitution or anywhere else -- that supports the premise which underlies the Clipper proposal. As the law currently stands, surveillance is not a design goal. General Motors would have a stronger legal basis for building cars that could go no faster than 65 miles per hour than AT&T does in marketing a commercial telephone that has a built-in wiretap capability. In law there is simply nothing about the use of a telephone that is inherently illegal or suspect. The federal wiretap statute says only that communication service providers must assist law enforcement in the execution of a lawful warrant. It does not say that anyone is obligated to design systems to facilitate future wire surveillance. That distinction is the difference between countries that restrict wire surveillance to narrow circumstances defined in law and those that treat all users of the telephone network as potential criminals. U.S. law takes the first approach. Countries such as the former East Germany took the second approach. The use of the phone system by citizens was considered inherently suspect and for that reason more than 10,000 people were employed by the East German government to listen in on telephone calls. It is precisely because the wiretap statute does not contain the obligation to incorporate surveillance capability -- the design premise of the Clipper proposal -- that the Federal Bureau of Investigation introduced the Digital Telephony legislation. But that legislation has not moved forward and the law has remained unchanged. The Clipper proposal attempts to accomplish through the standard-setting and procurement process what the Congress has been unwilling to do through the legislative process. On legal grounds, adopting the Clipper would be a mistake. There is an important policy goal underlying the wiretap law. The Fourth Amendment and the federal wiretap statute do not so much balance competing interests as they erect barriers against government excess and define the proper scope of criminal investigation. The purpose of the federal wiretap law is to restrict the government, it is not to coerce the public. Therefore, if the government endorses the Clipper proposal, it will undermine the basic philosophy of the federal wiretap law and the fundamental values embodied in the Constitution. It will establish a technical mechanism for signal interception based on a premise that has no legal foundation. The assumption underlying the Clipper proposal is more compatible with the practice of telephone surveillance in the former East Germany than it is with the narrowly limited circumstances that wire surveillance has been allowed in the United States. UNANSWERED QUESTIONS There are a number of other legal issues that have not been adequately considered by the proponents of the key escrow arrangement that the Subcommittee should examine. First, not all lawful wiretaps follow a normal warrant process. The proponents of Clipper should make clear how emergency wiretaps will be conducted before the proposal goes forward. Second, there may be civil liability issues for the escrow agents, if they are private parties, if there is abuse or compromise of the keys. Third, there is a Fifth Amendment dimension to the proposed escrow key arrangement if a network user is compelled to disclose his or her key to the government in order to access a communications network. Each one of these issues should be examined carefully. CPSR CONFERENCE At a conference organized by CPSR this week at the Carnegie Endowment for International Peace we heard presentations from staff members at NIST, FBI, NSA and the White House about the Clipper proposal. The participants at the meeting had the opportunity to ask questions and to exchange views. Certain points now seem clear: ¥ The Clipper proposal was not developed in response to any perceived public or business need. It was developed solely to address a law enforcement concern. ¥ Wire surveillance remains a small part of law enforcement investigations. The number of arrests resulting from wiretaps has remained essentially unchanged since the federal wiretap law was enacted in 1968. ¥ The potential risks of the Clipper proposal have not been assessed and many questions about the implementation remain unanswered. ¥ Clipper does not appear to have the support of the business or research community. Many comments on the Clipper proposal, both positive and negative as well the materials obtained by CPSR through the Freedom of Information Act, are contained in the Source book compiled by CPSR for the recent conference. I am please to make a copy of this available to the Subcommittee. NETWORK PRIVACY PROTECTION Communications privacy remains a critical test for network development. Networks that do not provide a high degree of privacy are clearly less useful to network users. Given the choice between a cryptography product without a key escrow and one with a key escrow, it would be difficult to find a user who would prefer the key escrow requirement. If this proposal does go forward, it will not be because network users or commercial service providers favored it. Even if the issues regarding the Clipper are resolved favorably, privacy concerns will not go away. Cryptography is a part of communications privacy, but it is only a small part. Rules still need to be developed about the collection and use of transactional data generated by computer communications. While the federal wiretap law generally does a very good job of protecting the content of communications against interception by government agencies, large holes still remain. The extensive use of subpoenas by the government to obtain toll records and the sale of telephone records by private companies are just two examples of gaps in current law. The enforcement of privacy laws is also a particularly serious concern in the United States. Good laws without clear mechanisms for enforcement raise over-arching questions about the adequacy of legal protections in this country. This problem is known to those who have followed developments with the Privacy Act since passage in 1974 and the more recent Video Privacy and Protection Act of 1988. I make this point because it has been the experience in other countries that agencies charged with the responsibility for privacy protection can be effective advocates for the public in the protection of personal privacy. RECOMMENDATIONS Regarding the Clipper proposal, we believe that the national review currently underway by the Computer Security and Privacy Advisory Board at the Department of Commerce will be extremely useful and we look forward to the results of that effort. The Panel has already conducted a series of important open hearings and compiled useful materials on Clipper and cryptography policy for public review. We are also pleased that the Subcommittee on Telecommunications and Finance has undertaken this hearing. This Subcommittee can play a particularly important role in the resolution of these issues. We also appreciate the Chairman's efforts to ensure that the proper studies are undertaken, that the General Accounting Office fully explores these issues, and that the Secretary of Commerce carefully assesses the potential impact of the Clipper proposal on export policy. We are, however, less pleased about the White House study currently underway. That effort, organized in large part by the National Security Council, has led to a series of secret meetings, has asked that scientists sign non-disclosure agreements and accept restrictions on publication, and has attempted to resolve public concerns through private channels. This is not a good process for the evaluation of a technology that is proposed for the public switched network. While we acknowledge that the White House has been reasonably forthcoming in explaining the current state of affairs, we do not think that this process is a good one. For these reasons, we believe that the White House should properly defer to the recommendations of the Computer System Security and Privacy Advisory Board and the Subcommittee on Telecommunications and Finance. We hope that no further steps in support of the Clipper initiative will be taken. We specifically recommend that no further purchase of Clipper chips be approved. Speaking more generally, we believe that a number of steps could be taken to ensure that future communications initiatives could properly be viewed as a boost to privacy and not a set-back. ¥ The FCC must be given a strong mandate to pursue privacy concerns. There should be an office specifically established to examine privacy issues and to prepare reports. Similar efforts in other countries have been enormously successful. The Japanese Ministry of Post and Telecommunications developed a set of privacy principles to ensure continued trade with Europe. The Canada Ministry of Communications developed a set of communications principles to address public concerns about the privacy of cellular communications. In Europe, the EC put forward an important directive on privacy protection for the development of new network services. ¥ Current gaps in the communications law should be filled. The protection of transactional records is particularly important. Legislation is needed to limit law enforcement access to toll record information and to restrict the sale of data generated by the use of telecommunication services. As the network becomes digital, the transaction records associated with a particular communication may become more valuable than the content of the communication itself. ¥ Telecommunications companies should be encouraged to explore innovative ways to protect privacy. Cryptography is a particular method to seal electronic communications, but far more important for routine communications could be anonymous telephone cards, similar to the metro cards here in the District of Columbia, that allow consumers to purchase services without establishing accounts, transferring personal data, or recording personal activities. Such cards are widely available in Europe, Japan, and Australia. I thank you very much for the opportunity to appear before the Subcommittee and would be pleased to answer your questions Computer Professionals for Social Responsibility CPSR is a national membership organization, established in 1982, to address the social impact of computer technology. There are 2,500 members in 20 chapters across the United States, and offices in Palo Alto, California, Cambridge, Massachusetts, and Washington DC. The organization is governed by a board of elected officers and meetings are open to the public. CPSR sponsors an annual meeting and the biennial conference on Directions and Implications of Advanced Computing. CPSR sponsored the first conference on Computers, Freedom, and Privacy in 1991. CPSR also operates the Internet Library at cpsr.org. The library contains documents from the White House on technology policy and a wide range of public laws covering privacy, access to information, and communications law and is available free of charge to all users of the Internet. Marc Rotenberg is the director of the CPSR Washington office and an adjunct professor at Georgetown University Law Center. He is chairman of the ACM Committee on Scientific Freedom and Human Rights, an editor for the Computer Law and Security Report (London), and the secretary of Privacy International, an organization of human rights advocates and privacy scholars in forty countries. He received an A.B. from Harvard College and a J.D. from Stanford Law School, and is a member of the bar of the United States Supreme Court. His forthcoming article "Communications Privacy: Implications for Network Design" will appear in the August 1993 issue of Communications of the ACM.