August 13, 1997
The personal privacy of individual American citizens is rapidly eroding on every
front. Advancing technology has made it easier for government agencies, the police,
credit bureaus, telemarketers, and all sorts of nosy people to monitor where we are, who
we associate with, how we spend our money, who we talk to on the telephone, and what
medical care we receive.
With business computers and government bureaucracies constantly compiling data
about our comings and goings, encryption is a wonderful technology that can enable us to
get back some of our privacy. Encryption locks up your messages so that only the
intended recipients, each of whom has his own key, can unlock them, and you can carry
on a cell-phone conversation without snooping from scanners.
Once encrypted, your phone conversations and E-mail will sound or look like
gibberish to everyone except those who have the key to decrypt it. We look forward to
the day when encryption technology will be just as common as sealing an envelope before
you mail it.
Encryption has become a hot political issue. Most of us want control over our own
encryption keys, just as we demand and expect control over the keys to our homes.
Civil liberties groups correctly assert that we have a First and Fourth Amendment
right to speak in a manner of our own choosing and to be secure from government
searches. Just as we have the right to speak in Spanish or Greek as well as in English, we
have a right to speak in code on our computer or on our cell phone so that our messages
and conversations will be private.
But Bill Clinton and Al Gore want to regulate encryption. The Clinton
Administration has come up with plans to control encryption, variously called "clipper,"
"key escrow," "key recovery," or "key management infrastructure."
These plans have been rejected by consumers, industry, those who believe in civil
liberties and the free market, and even the Europeans. Only the U.S. Senate takes the
Clinton plan seriously.
Senators John McCain (R-AZ) and Bob Kerrey (D-NE) have introduced the
Secure Public Networks Act, S.909, which is a direct attack on the Bill of Rights as well
as on our right to privacy. To avoid coping with arguments against it, they rushed it
through the Senate Commerce Committee without any publicity.
S. 909 gives the FBI and other government agencies the ability to seize your
cryptographic keys. The bill's advocates assert that the government is merely trying to
maintain the status quo, and that civil liberties are protected because court orders are
required before the government can get your keys.
That's false. S. 909 overturns the status quo and gives government agencies the
practical power to pervasively monitor electronic communications in a way they cannot
now. As originally drafted by the Clinton Administration, S. 909 would have allowed
government agents to seize private keys without a court order or search warrant, and even
without notice to the individual whose privacy is violated.
Supporters of S. 909 added a fuzzy one-sentence amendment to the bill in
committee and claim it now guarantees full protection of our constitutional rights. Critics
of the bill believe it takes more than a single sentence to paper over the bill's enormous
dangers to personal liberty.
Supporters of the bill say the government-mandated key escrow system would be
"voluntary." That's also false. A panoply of federal regulations, federal purchasing
policies, criminal penalties, and civil liability exposure would effectively force any
business of any size to use the government system, and all the business's customers
would have to follow suit.
The bill would also make a type of government regulated electronic ID code
effectively mandatory for doing business. To get the ID, you would have to buy into the
FBI Director Louis Freeh is passionately eager to have a law that lets his agents
seize private keys without a court order. He speaks ominously about what he calls "the
looming spectre of the widespread use of robust, virtually uncrackable encryption."
Freeh compares encryption to fast cars, saying, "Would we allow a car to be driven
with features which would evade and outrun police cars?" Maybe he'll try to ban
Corvettes when he finds out how fast they can go.
This is the same Louis Freeh who last year proposed that one percent of the
telephone capacity in urban areas be reserved for wiretaps (that's 10,000 phones in a city
of one million). Even the KGB and the Gestapo didn't reach that level of surveillance.
Sensible people are not persuaded by Freeh's alarmist speeches. Last year, the
National Research Council Commission concluded that national security arguments for
controlling encryption are increasingly outdated, and that the ability of the private sector
to transfer confidential financial and other data over telecommunications pathways
without interception is a higher priority than government wiretapping.
No free nation has ever tried to regulate or snoop on the content of private
messages until the Clinton Administration. The crucial political question is whether law-abiding Americans will be able to secure their own keys, giving them only to persons of
their own choosing, or whether we will be forced to surrender our keys to government