Computer underground Digest Sun May 22, 1994 Volume 6 : Issue 44 ISSN 1004-042X Editors: J

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Computer underground Digest Sun May 22, 1994 Volume 6 : Issue 44 ISSN 1004-042X Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET) Archivist: Brendan Kehoe Retiring Shadow Archivist: Stanton McCandlish Shadow-Archivists: Dan Carosone / Paul Southworth Ralph Sims / Jyrki Kuoppala Ian Dickinson Covey Editors: D. Bannaducci & S. Jones CONTENTS, #6.44 (May 22, 1994) File 1--EFF's Jerry Berman testimony - House Clipper/DigTel hearing 5/3/94 File 2--Whit Diffie testimony - Senate Clipper Hearing, May 3 1994 Cu-Digest is a weekly electronic journal/newsletter. Subscriptions are available at no cost electronically. CuD is available as a Usenet newsgroup: Or, to subscribe, send a one-line message: SUB CUDIGEST your name Send it to LISTSERV@UIUCVMD.BITNET or LISTSERV@VMD.CSO.UIUC.EDU The editors may be contacted by voice (815-753-0303), fax (815-753-6302) or U.S. mail at: Jim Thomas, Department of Sociology, NIU, DeKalb, IL 60115, USA. 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CuD material may be reprinted for non-profit as long as the source is cited. Authors hold a presumptive copyright, and they should be contacted for reprint permission. It is assumed that non-personal mail to the moderators may be reprinted unless otherwise specified. Readers are encouraged to submit reasoned articles relating to computer culture and communication. Articles are preferred to short responses. Please avoid quoting previous posts unless absolutely necessary. DISCLAIMER: The views represented herein do not necessarily represent the views of the moderators. Digest contributors assume all responsibility for ensuring that articles submitted do not violate copyright protections. ---------------------------------------------------------------------- Date: Fri, 6 May 1994 12:10:26 -0400 (EDT) From: Stanton McCandlish Subject: File 1--EFF's J Berman testimony - House Clipper/DigTel hearing 5/3/94 Testimony of Jerry J. Berman, Executive Director Electronic Frontier Foundation before the Committee on Science, Space and Technology Subcommittee on Technology, Environment and Aviation U.S. House of Representatives Hearing on Communications and Computer Surveillance, Privacy and Security May 3, 1994 Mr. Chairman and Members of the Committee I want to thank you for the opportunity to testify today on communications and computer surveillance, privacy, and security policy. The Electronic Frontier Foundation (EFF) is a public interest membership organization dedicated to achieving the democratic potential of new communications and computer technology and works to protect civil liberties in new digital environments. EFF also coordinates the Digital Privacy and Security Working Group (DPSWG), a coalition of more than 50 computer, communications, and public interest organizations and associations working on communications privacy issues. The Working Group has strongly opposed the Administration's clipper chip and digital telephony proposals. EFF is especially pleased that this subcommittee has taken an interest in these issues. It is our belief that Administration policy developed in this area threatens individual privacy rights, will thwart the development of the information infrastructure, and does not even meet the stated needs of law enforcement and national security agencies. A fresh and comprehensive look at these issues is needed. I.Background on digital privacy and security policy ------------------------------------------------------ >From the beginning of the 1992 Presidential campaign, President Clinton and Vice President Gore committed themselves to support the development of the National Information Infrastructure. They recognize that the "development of the NII can unleash an information revolution that will change forever the way people live, work, and interact with each other." They also know that the information infrastructure can only realize its potential if users feel confident about security measures available. If allowed to reach its potential, this information infrastructure will carry vital personal information, such as health care records, private communications among friends and families, and personal financial transactions. The business community will transmit valuable information such as plans for new products, proprietary financial data, and other strategic communications. If communications in the new infrastructure are vulnerable, all of our lives and businesses would be subject to both damaging and costly invasion. In launching its Information Infrastructure Task Force (IITF) the Clinton Administration recognized this when it declared that: The trustworthiness and security of communications channels and networks are essential to the success of the NII.... Electronic information systems can create new vulnerabilities. For example, electronic files can be broken into and copied from remote locations, and cellular phone conversations can be monitored easily. Yet these same systems, if properly designed, can offer greater security than less advanced communications channels. [_Agenda_for_Action_, 9] Cryptography -- technology which allows encoding and decoding of messages -- is an absolutely essential part of the solution to information security and privacy needs in the Information Age. Without strong cryptography, no one will have the confidence to use networks to conduct business, to engage in commercial transactions electronically, or to transmit sensitive personal information. As the Administration foresees, we need network standards and transmission codes that facilitate interconnection and interoperation between networks, and ensure the privacy of persons and the security of information carried.... [_Agenda_for_Action_, 6] While articulating these security and privacy needs, the Administration has also emphasized that the availability of strong encryption poses challenges to law enforcement and national security efforts. Though the vast majority of those who benefit from encryption will be law abiding citizens, some criminals will find ways to hide behind new technologies. II.Current cryptography policy fails to meet the needs of ----------------------------------------------------------- the growing information infrastructure --------------------------------------------- As a solution to the conflict between the need for user privacy and the desire to ensure law enforcement access, the Administration has proposed that individuals and organizations who use encryption deposit a copy of their private key -- the means to decode any communications they send -- with the federal government. In our view, this is not a balanced solution but one that undermines the need for security and privacy without resolving important law enforcement concerns. It is up to the Congress to send the Administration back to the drawing board. A.Current Export Controls and New Clipper Proposal Stifle Innovation ----------------------------------------------------------------------- Two factors are currently keeping strong encryption out of the reach of United States citizens and corporations. First, general uncertainty about what forms of cryptography will and will not be legal to produce in the future. Second, export controls make it economically impossible for US manufacturers that build products for the global marketplace to incorporate strong encryption for either the domestic or foreign markets. Despite this negative impact on the US market, export controls are decreasingly successful at limiting the foreign availability of strong encryption. A recent survey shows that of the more than 260 foreign encryption products now available globally, over 80 offer encryption which is stronger than what US companies are allowed to export. Export controls do constrain the US market, but the international market appears to be meeting its security needs without help from US industry. The introduction of Clipper fails to address the general uncertainty in the cryptography market. Announcement of a key escrow policy alone is not sufficient to get the stalled US cryptography market back on track. B.The secrecy of the Clipper/Skipjack algorithm reduces public trust ----------------------------------------------------------------------- and casts doubt on the voluntariness of the whole system ------------------------------------------------------------- Many parties have already questioned the need for a secret algorithm, especially given the existence of robust, public-domain encryption techniques. The most common explanation given for use of a secret algorithm is the need to prevent users from bypassing the key escrow system proposed along with the Clipper Chip. Clipper has always been presented by the Administration as a voluntary option. But if the system is truly voluntary, why go to such lengths to ensure compliance with the escrow procedure? C.Current plans for escrow system offer inadequate technical --------------------------------------------------------------- security and insufficient legal protections for users ---------------------------------------------------------- The implementation of a nationwide key escrow system is clearly a complex task. But preliminary plans available already indicate several areas of serious concern: 1._No_legal_rights_for_escrow_users_: As currently written, the escrow procedures insulate the government escrow agents from any legal liability for unauthorized or negligent release of an individual's key. This is contrary to the very notion of an escrow system, which ordinarily would provide a legal remedy for the depositor whose deposit is released without authorization. If anything, escrow agents should be subject to strict liability for unauthorized disclosure of keys. 2._No_stability_in_escrow_rules_: The Administration has specifically declared that it will not seek to have the escrow procedures incorporated into legislation or official regulations. Without formalization of rules, users have no guaranty that subsequent administrations will follow the same rules or offer the users the same degree of protection. This will greatly reduce the trust in the system. 3._Fixed_Key_: A cardinal rule of computer security is that encryption keys must be changed often. Since the Clipper keys are locked permanently into the chips, the keys can never be changed. This is a major technical weakness of the current proposal. 4._Less_intrusive,_more_secure_escrow_alternatives_are_available_: The Clipper proposal represents only one of many possible kinds of key escrow systems. More security could be provided by having more than two escrow agents. And, in order to increase public trust, some or all of these agents could be non-governmental agencies, with the traditional fiduciary duties of an escrow agent. D.Escrow Systems Threaten Fundamental Constitutional Values -------------------------------------------------------------- The Administration, Congress, and the public ought to have the opportunity to consider the implications of limitations on cryptography from a constitutional perspective. A delicate balance between constitutional privacy rights and the needs of law enforcement has been crafted over the history of this country. We must act carefully as we face the constitutional challenges posed by new communication technologies. Unraveling the current encryption policy tangle must begin with one threshold question: will there come a day when the federal government controls the domestic use of encryption through mandated key escrow schemes or outright prohibitions against the use of particular encryption technologies? Is Clipper the first step in this direction? A mandatory encryption regime raises profound constitutional questions. In the era where people work for "virtual corporations" and conduct personal and political lives in "cyberspace," the distinction between _communication_ of information and _storage_ of information is increasingly vague. The organization in which one works may constitute a single virtual space, but be physically dispersed. So, the papers and files of the organization or individual may be moved within the organization by means of telecommunications technology. Instantaneous access to encryption keys, without prior notice to the communicating parties, may well constitute a secret search, if the target is a virtual corporation or an individual whose "papers" are physically dispersed. Wiretapping and other electronic surveillance has always been recognized as an exception to the fundamental Fourth Amendment prohibition against secret searches. Even with a valid search warrant, law enforcement agents must "knock and announce" their intent to search a premises before proceeding. Failure to do so violates the Fourth Amendment. Until now, the law of search and seizure has made a sharp distinction between, on the one hand, _seizures_of_papers_ and other items in a person's physical possession, and on the other hand, _wiretapping_of_communications_. Seizure of papers or personal effects must be conducted with the owner's knowledge, upon presentation of a search warrant. Only in the exceptional case of wiretapping, may a person's privacy be invaded by law enforcement without simultaneously informing that person. Proposals to regulate the use of cryptography for the sake of law enforcement efficiency should be viewed carefully in the centuries old tradition of privacy protection. E.Voluntary escrow system will not meet law enforcement needs ---------------------------------------------------------------- Finally, despite all of the troubling aspects of the Clipper proposal, it is by no means clear that it will even solve the problems that law enforcement has identified. The major stated rationale for government intervention in the domestic encryption arena is to ensure that law enforcement has access to criminal communications, even if they are encrypted. Yet, a voluntary scheme seems inadequate to meet this goal. Criminals who seek to avoid interception and decryption of their communications would simply use another system, free from escrow provisions. Unless a government-proposed encryption scheme is mandatory, it would fail to achieve its primary law enforcement purpose. In a voluntary regime, only the law-abiding would use the escrow system. III.Recent policy developments indicate that Administration policy is ---------------------------------------------------------------------- bad for the NII, contrary to the Computer Security Act, and ---------------------------------------------------------------- requires Congressional oversight ------------------------------------- Along with the Clipper Chip proposal, the Administration announced a comprehensive review of cryptography and privacy policy. Almost immediately after the Clipper announcement, the Digital Privacy and Security Working Group began discussions with the Administration on issues raised by the Clipper proposal and by cryptography in general. Unfortunately, this dialogue has been largely one-sided. EFF and many other groups have provided extensive input to the Administration, yet the Administration has not reciprocated -- the promised policy report has not been forthcoming. Moreover, the National Security Agency and the Federal Bureau of Investigation are proceeding unilaterally to implement their own goals in this critical policy area. Allowing these agencies to proceed unilaterally would be a grave mistake. As this subcommittee is well aware, the Computer Security Act of 1987 clearly established that neither military nor law enforcement agencies are the proper protectors of personal privacy. When considering the law, Congress asked, "whether it is proper for a super- secret agency [the NSA] that operates without public scrutiny to involve itself in domestic activities...?" The answer was a clear "no." Recent Administration announcements regarding the Clipper Chip suggest that the principle established in the 1987 Act has been circumvented. As important as the principle of civilian control was in 1987, it is even more critical today. The more individuals around the country come to depend on secure communications to protect their privacy, the more important it is to conduct privacy and security policy dialogues in public, civilian forums. The NII can grow into the kind of critical, national resource which this Administration seeks to promote only if major changes in current cryptography and privacy policy. In the absence of such changes, digital technology will continue to rapidly render our commercial activities and communications -- and, indeed, much of our personal lives -- open to scrutiny by strangers. The Electronic Frontier Foundation believes that Americans must be allowed access to the cryptographic tools necessary to protect their own privacy. We had hoped that the Administration was committed to making these changes, but several recent developments lead us to fear that the effort has been abandoned, leaving individual agencies to pursue their own policy agendas instead of being guided by a comprehensive policy. The following issues concern us: *Delayed Cryptography Policy Report --------------------------------------- The policy analysis called for along with the April 16, 1993 Presidential Decision Directive has not been released, though it was promised to have been completed by early fall of 1993. We had hoped that this report would be the basis for public dialogue on the important privacy, competitiveness, and law enforcement issues raised by cryptography policy. To date, none of the Administration's policy rationale has been revealed to the public, despite the fact that agencies in the Executive Branch are proceeding with their own plan *Escrowed Encryption Federal Information Processing Standard (FIPS) ----------------------------------------------------------------------- approved against overwhelming weight of public comments +----------------------------------------------------------- The Presidential Decision Directive also called for consideration of a Federal Information Processing Standard (FIPS) for key-escrow encryption systems. This process was to have been one of several forums whereby those concerned about the proposed key-escrow system could voice opinions. EFF, as well as over 225 of our individual members, raised a number of serious concerns about the draft FIPS in September of this 1993. EFF expressed its opposition to government implementation of key-escrow systems as proposed. We continue to oppose the deployment of Skipjack family escrow encryption systems both because they violate fundamental First, Fourth, and Fifth amendment principles, and because they fail to offer users adequate security and flexibility. Despite overwhelming opposition from over 300 commenters, the Department of Commerce recently approved FIPS 185. *Large-Scale Skipjack Deployment Announced +--------------------------------------------- At the December 9, 1993 meeting of the Computer Systems Security and Privacy Advisory Board, an NSA official announced plans to deploy from 10,000 to 70,000 Skipjack devices in the Defense Messaging System in the near future. The exact size of the order was said to be dependent only on budget constraints. The Administration is on record in the national press promising that no large-scale Skipjack deployment would occur until a final report of the Administration Task Force was complete. Ten thousand units was set as the upper limit of initial deployment. Skipjack deployment at the level planned in the Defense Messaging System circumvents both the FIPS notice and comments process which has been left in a state of limbo, as well as the Administration's promise of a comprehensive policy framework. *New FBI Digital Telephony Legislation Proposed +-------------------------------------------------- The FBI recently proposed a new "Digital Telephony" bill. After initial analysis, we strongly oppose the bill, which would require all common carriers to construct their networks to deliver to law enforcement agencies, in real time, both the contents of all communications on their networks and the "signaling" or transactional information. In short, the bill lays the groundwork for turning the National Information Infrastructure into a nation-wide surveillance system, to be used by law enforcement with few technical or legal safeguards. This image is not hyperbole, but a real assessment of the power of the technology and inadequacy of current legal and technical privacy protections for users of communications networks. Although the FBI suggests that the bill is primarily designed to maintain status quo wiretap capability in the face of technological changes, in fact, it seeks vast new surveillance and monitoring tools. Lengthy delays on the promised policy report, along with these unilateral steps toward Clipper/Skipjack deployment, lead us to believe that Administration policy is stalled by the Cold War-era national security concerns that have characterized cryptography policy for the last several decades. EFF believes that it would be a disastrous error to allow national information policy -- now a critical component of domestic policy -- to be dictated solely by backward-looking national-security priorities and unsubstantiated law-enforcement claims. The directions set by this Administration will have a major impact on privacy, information security, and the fundamental relationship between the government and individual autonomy. This is why the Administration must take action-- and do so before the aforementioned agencies proceed further--to ensure that cryptography policy is restructured to serve the interests of privacy and security in the National Information Infrastructure. We still believe the Administration can play the leadership role it was meant to play in shaping this policy. If it does not, the potential of the NII, and of fundamental civil liberties in the information age, will be threatened. IV.Congressional oversight of cryptography & privacy policy is +--------------------------------------------------------------- urgently needed to right the balance between privacy, +--------------------------------------------------------- competitiveness & law enforcement needs +------------------------------------------- All participants in this debate recognize that the need for privacy and security is real, and that new technologies pose real challenges for law enforcement and national security operations. However, the solutions now on the table cripple the NII, pose grave threats to privacy, and fail to even meet law enforcement objectives. In our judgment, the Administration has failed, thus far, to articulate a comprehensive set of policies which will advance the goals upon which we all agree. Congress must act now to ensure that cryptography policy is developed in the context of the broader goal of promoting the development of an advanced, interoperable, secure, information infrastructure. In order to meet the privacy and security needs of the growing infrastructure, Congress should seek a set of public policies which promote the widespread availability of cryptographic systems according to the following criteria: *Use Voluntary Standards to Promote Innovation and Meet +---------------------------------------------------------- Diverse Needs: +------------------ The National Information Infrastructure stretches to encompass devices as diverse as super computers, handheld personal digital assistants and other wireless communications devices, and plain old telephones. Communication will be carried over copper wires, fiber optic cables, and satellite links. The users of the infrastructure will range from elementary school children to federal agencies. Encryption standards must be allowed to develop flexibly to meet the wide-ranging needs all components of the NII. In its IITF Report, the Administration finds that standards also must be compatible with the large installed base of communications technologies, and flexible and adaptable enough to meet user needs at affordable costs. [_AA_, 9] The diverse uses of the NII require that any standard which the government seeks to promote as a broadly deployed solution should be implementable in software as well as hardware and based on widely available algorithms. *Develop Trusted Algorithms and End-to-End Security: +------------------------------------------------------- Assuring current and future users of the NII that their communications are secure and their privacy is protected is a critical task. This means that the underlying algorithms adopted must have a high level of public trust and the overall systems put in place must be secure. *Encourage National and International Interoperability: +---------------------------------------------------------- The promise of the NII is seamless national and international communications of all types. Any cryptographic standard offered for widespread use must allow US corporations and individuals to function as part of the global economy and global communications infrastructure. *Seek Reasonable Cooperation with Law Enforcement and National +----------------------------------------------------------------- Security Needs: +------------------- New technologies pose new challenges to law enforcement and national security surveillance activities. American industry is committed to working with law enforcement to help meet its legitimate surveillance needs, but the development of the NII should not be stalled on this account. *Promote Constitutional Rights of Privacy and Adhere to Traditional +---------------------------------------------------------------------- Fourth Amendment Search and Seizure Rules: +---------------------------------------- New technology can either be a threat or an aid to protection of fundamental privacy rights. Government policy should promote technologies which enable individuals to protect their privacy and be sure that those technologies are governed by laws which respect the long history of constitutional search and seizure restraints. *Maintain Civilian Control over Public Computer and +------------------------------------------------------ Communications Security: ----------------------------- In accordance with the Computer Security Act of 1987, development of security and privacy standards should be directed by the civilian V.Conclusion --------------- Among the most important roles that the federal government has in NII deployment are setting standards and guaranteeing privacy and security. Without adequate security and privacy, the NII will never realize it economic or social potential. Cryptography policy must, of course, take into account the needs of law enforcement and national security agencies, but cannot be driven by these concerns alone. The Working Group, along with other industry and public interest organizations, is committed to working with the Administration to solving the privacy and security questions raised by the growing NII. This must be done based on the principles of voluntary standards, promotion of innovation, concern for law enforcement needs, and protection of constitutional rights of privacy. ------------------------------ Date: Fri, 6 May 1994 12:07:04 -0400 (EDT) From: Stanton McCandlish Subject: File 2--Whit Diffie testimony - Senate Clipper Hearing, May 3 1994 Key Escrow: Its Impact and Alternatives Testimony of Dr. Whitfield Diffie Distinguished Engineer Sun Microsystems, Inc. Before the Subcommitee on Technology and the Law of the Senate Judiciary Committee 3 May 1994 Dr. Diffie is also testifying on behalf of the Digital Privacy and Security Working Group, a group of more than 50 computer, communications and public interest organizations and associations working on communications privacy issues. I would like to begin by expressing my thanks to the chairman, the members of the committee, and the committee staff for the chance not only of appearing before this committee, but of appearing in such distinguished company. It is a pleasure to be able to present not only my own concerns and those of Sun Microsystem, but to have the opportunity of representing the Digital Privacy and Security Working Group. I think it is also appropriate to say a few words about my experience in the field of communication security. I first began thinking about cryptography while working at Stanford University in the late summer of 1972. This subsequently brought me into contact with Professor Martin E. Hellman of the Electrical Engineering Department. Marty and I worked together throughout the mid-1970s and discovered the family of techniques now known as public key cryptography. It is these techniques that are directly responsible for the issue before the committee today. Prior to public key cryptography, any large scale cryptographically secure system required trusted elements with the fundamental capability of decrypting any message protected by the system. Public key cryptography eliminated the need for network subscribers to place this level of trust in any network element. In so doing, it potentially reduced the subscribers' vulnerability to government wiretapping. It is this vulnerability that the Escrowed Encryption Initiative, seeks to reintroduce. In 1978, I walked through the revolving door from academia to industry and for a dozen years was `Manager of Secure Systems Research' at Northern Telecom. In 1991, I took my present position with Sun Microsystems. This has allowed me an inside look at the problems of communication security from the viewpoints of both the telecommunications and computer industries. The Key Escrow Program Just over a year ago, the Administration revealed plans for a program of key escrow technology best known by the name of its flagship product the Clipper chip. The program's objective is to promote the use of cryptographic equipment incorporating a special back door or trap door mechanism that will permit the Federal Government to decrypt communications without the knowledge or consent of the communicating parties when it considers this necessary for law enforcement or intelligence purposes. In effect, the privacy of these communications will be placed in escrow with the Federal Government. The committee has asked me to address myself to this proposal and in particular to consider three issues: o Problems with key escrow, particularly in the area of privacy. o The impact of the key escrow proposal on American business both at home and abroad. o Alternatives to key escrow. Scope In the course of discussing the key escrow program over the past year, I have often encountered a piecemeal viewpoint that seeks to take each individual program at face value and treat it independently of the others. I believe, on the contrary, that it is appropriate to take a broad view of the issues. The problem confronting us is to assess the advisability of key escrow and its impact on our society. This requires examining the effect of private, commercial, and possibly criminal use of cryptography and the advisability and effect of the use of communications intelligence techniques by law enforcement. In doing this, I will attempt to avoid becoming bogged down in the distinctions between the Escrowed Encryption Standard (FIPS185) with its orientation toward telephone communications and the CAPSTONE/TESSERA/MOSAIC program with its orientation toward computer networks. I will treat these, together with the Proposed Digital Signature Standard and to a lesser extent the Digital Telephony Proposal, as a unified whole whose objective is to maintain and expand electronic interception for both law enforcement and national security purposes. Privacy Problems of Key Escrow When the First Amendment became part of our constitution in 1791, speech took place in the streets, the market, the fields, the office, the bar room, the bedroom, etc. It could be used to express intimacy, conduct business, or discuss politics and it must have been recognized that privacy was an indispensable component of the character of many of these conversations. It seems that the right --- in the case of some expressions of intimacy even the obligation --- of the participants to take measures to guarantee the privacy of their conversations can hardly have been in doubt, despite the fact that the right to speak privately could be abused in the service of crime. Today, telephone conversations stand on an equal footing with the venues available in the past. In particular, a lot of political speech --- from friends discussing how to vote to candidates planning strategy with their aides --- occurs over the phone. And, of all the forms of speech protected by the first amendment, political speech is foremost. The legitimacy of the laws in a democracy grows out of the democratic process. Unless the people are free to discuss the issues --- and privacy is an essential component of many of these discussions --- that process cannot take place. There has been a very important change in two hundred years, however. In the seventeen-nineties two ordinary people could achieve a high degree of security in conversation merely by the exercise of a little prudence and common sense. Giving the ordinary person comparable access to privacy in the normal actions of the world today requires the ready availability of complex technical equipment. It has been thoughtlessly said, in discussions of cryptographic policy, that cryptography brings the unprecedented promise of absolute privacy. In fact, it only goes a short way to make up for the loss of an assurance of privacy that can never be regained. As is widely noted, there is a fundamental similarity between the power of the government to intercept communications and its ability to search premises. Recognizing this power, the fourth amendment places controls on the government's power of search and similar controls have been placed by law on the use of wiretaps. There is, however, no suggestion in the fourth amendment of a guarantee that the government will find what it seeks in a search. Just as people have been free to to protect the things they considered private, by hiding them or storing them with friends, they have been free to protect their conversations from being overheard. The ill ease that most people feel in contemplating police use of wiretaps is rooted in awareness of the abuses to which wiretapping can be put. Unlike a search, it is so unintrusive as to be invisible to its victim and this inherently undermines accountability. Totalitarian regimes have given us abundant evidence that the use of wiretaps and even the fear of their use can stifle free speech. Nor is the political use of electronic surveillance a strictly foreign problem. We have precedent in contemporary American history for its use by the party in power in its attempts to stay in power? The essence of the key escrow program is an attempt use the buying power and export control authority of government to promote standards that will deny ordinary people ready options for true protection of their conversations. In a world where more and more communication take place between people who frequently can not meet face to face, this is a dangerous course of action. The objections raised so far apply to the principle of key escrow. Objections can also be raised to details of the present proposal. These deal with the secrecy of the algorithm, the impact on security of the escrow mechanism, and the way in which the proposal has been put into effect. Secrecy of the SKIPJACK Algorithm An objection that has been raised to the current key escrow proposal is that the cryptographic algorithm used in the Clipper Chip is secret and is not available for public scrutiny. One counter to this objection is that the users of cryptographic equipment are neither qualified to evaluate the quality of the algorithm nor, with rare exceptions, interested in attempting the task. In a fundamental way, these objections miss the point. Within the national security establishment, responsibility for communication security is well understood. It rests with NSA. In industry, the responsibility is far more diffuse. Individual users are not typically concerned with the functioning of pieces of equipment. They acquire trust through a complex social web comprising standards, corporate security officers, professional societies, etc. A classified standard foisted on the civilian sector will have only one element of this process, Federal endorsement. One consequence of the use of a classified algoritym that is of particular concern to industry is the fact that the algorithm is only available in tamper resistant hardware. Software is one of the most flexible and economical ways of building products known. In typical computer engineering practice, the additional expense of implementing functions in hardware is only undertaken when the speed of software in not adequate for the task. Often in these cases, more expensive, higher performance, hardware implementations interoperate with less expensive, lower performance versions. Having a standard that can only be implemented in hardware will increase costs and damage interoperability. Security Problems with Key Escrow From the viewpoint of a user, any key escrow system diminishes security. It puts potential for access to the user's communications in the hands of an escrow agent who's intentions, policies, security capabilities, and future cannot be entirely known. In the context of modern secure telephone systems, the contrast between escrowed and unescrowed communications is particularly stark. In the process of setting up a secure call, modern secure telephones manufacture cryptographic keys that will be used for the protection of one and only one call and will be erased after the call is complete. Public key cryptography has made it possible to do this in such a way that these keys, once erased, can never be recovered. This give the users a degree of privacy similar to that in a face to face meeting. The effect of key escrow is much like having a tape recorder on throughout the meeting. Even if the tapes are very carefully protected, the people whose words they hold can never be certain that they will not someday be played to a much wider audience. There are also specific vulnerabilities associated with the present proposal. The Skipjack algorithm uses 80-bit keys. If it is as good as NSA claims, cryptanalyzing it will require searching through all these keys or doing about a million billion billion encryptions. This makes it sixteen million times as hard to break as DES. A telephone conversation would have to be valuable indeed to justify the expense of such a computation and it is quite plausible that this is entirely infeasible today. The problem is that in creating the Law Enforcement Access Field, or LEAF that implements key escrow, the Clipper chip also uses 80-bit keys. This means that in order to be able to decode everything ever encrypted by a Clipper chip it is only necessary to do a little more than twice as much work as would be required to read any one message --- one cryptanalysis to recover a Session Key followed by one to recover the Device Unique Key. A third cryptanalysis is needed to obtain the Family Key, but this need be done only once, since it is the same in all chips. The process is conceptually straightforward. 1. Starting with a set of messages encrypted with a particular Clipper chip cryptanalyze the LEAF fields, by trying every key, until a key is found that produces a well formed plaintext from every LEAF. This works because the LEAF specifically includes an authenticator designed to make well formed LEAFs recognizable. Once the Family Key has been found it can be used in attacking any Clipper Chip and this process need not be repeated. 2. Pick a message and decrypt its LEAF with the family key. Eighty bits of the result form a cryptogram whose plaintext is the Session Key used to encrypt the message. Decrypt this field with every key in turn. Try decrypting the message with each resulting 80-bit quantity to see if it is the correct session key. When the correct session key is discovered, the key that produced it will be the correct Device Unique Key. 3. The combination of the Family Key and the Device Unique Key can now be used to read any message ever encrypted by the Clipper chip under attack. It might be argued that the scenario described above requires knowing the SKIPJACK algorithm and the LEAF creation method, both of which are classified. It is an article of faith, however, in communications security that nothing that stays constant for a long period of time can be counted on to remain secret. With the passage of time, the chances that the chips will be reverse engineered increases. Irregularities in Adoption of the Standard Finally, there are disturbing aspects to the development of the key escrow FIPS. Under the Computer Security Act of 1987, responsibility for security of civilian communications rests with the National Institute of Standards and Technology. Pursuant to this statute, the Escrowed Encryption Standard appeared as Federal Information Processing Standard 185, under the auspices of the Commerce Department. Apparently, however, authority over the secret technology underlying the standard and the documents embodying this technology, continues to reside with NSA. We thus have a curious arrangement in which a Department of Commerce standard seems to be under the effective control of a Department of Defense agency. This appears to violate at least the spirit of the Computer Security Act and strain beyond credibility its provisions for NIST's making use of NSA's expertise. Impact on Business Business today is characterized by an unprecedented freedom and volume of travel by both people and goods. Ease of communication, both physical and electronic, has ushered in an era of international markets and multinational corporations. No country is large enough that its industries can concentrate on the domestic market to the exclusion of all others. When foreign sales rival or exceed domestic ones, the structure of the corporation follows suit with new divisions placed in proximity to markets, materials, or labor. Security of electronic communication is as essential in this environment as security of transportation and storage have been to businesses throughout history. The communication system must ensure that orders for goods and services are genuine, guarantee that payments are credited to the proper accounts, and protect the privacy of business plans and personal information. Two new factors are making security both more essential and more difficult to achieve. The first is the rise in importance of intellectual property. Since much of what is now bought and sold is information varying from computer programs to surveys of customer buying habits, information security has become an end in itself rather than just a means for ensuring the security of people and property. The second is the rising demand for mobility in communications. Traveling corporate computer users sit down at workstations they have never seen before and expect the same environment that is on the desks in their offices. They carry cellular telephones and communicate constantly by radio. They haul out portable PCs and dial their home computers from locations around the globe. With each such action they expose their information to threats of eavesdropping and falsification barely known a decade ago. Because this information economy is relentlessly global, no nation can successfully isolate itself from international competition. The communication systems we build will have to be interoperable with those of other nations. A standard based on a secret American technology and designed to give American intelligence access to the communications it protects seems an unlikely candidate for widespread acceptance. If we are to maintain our leading position in the information market places, we much give our full support to the development of open international security standards that protect the interests of all parties fairly. Potential for Excessive Regulation The key escrow program also presents the specter of increased regulation of the design and production of new computer and communications products. FIPS185 states that `Approved implementations may be procured by authorized organizations for integration into security equipment.' This raises the question of what organizations will be authorized and what requirements will be placed upon them? Is it likely that people prepared to require that surveillance be built into communication switches would shrink from requiring that equipment make pre-encryption difficult as a condition for getting `approved implementations'? Such requirements have been imposed as conditions of export approval for security equipment. Should industry's need to acquire tamper resistant parts force it to submit to such requirements, key escrow will usher in an era of unprecedented regulation of American development and manufacturing. Alternatives to Key Escrow It is impossible to address the issue of alternatives to key escrow, without asking whether there is a problem, what the problem is and what solution, if any, the problem requires. In recent testimony before this committee, the FBI has portrayed communications interception as an indispensable tool of police work and complained that the utility of this tool is threatened by developments in modern communications. This testimony, however, uses the broader term `electronic surveillance' almost exclusively and appears to include some cases in which the electronic surveillance consisted of bugs rather than wiretaps. Although the FBI testimony speaks of numerous of convictions, it names not a single defendant, court, case, or docket number. This imprecision makes adequate study of the testimony impossible and leaves open two issues: the effectiveness of communications interception in particular and that of electronic surveillance in general. On balance, it appears more likely that the investigative and evidential utility of wiretaps is rising than that it is falling. This is partly because criminals, like law abiding citizens, do more talking on the phone these days. It is partly because modern communication systems, like ISDN, provide much more information about each call, revealing where it came from in real time even when it originated a long way away. This detailed information about who called whom, when, and for how long, that modern switches provide, improves the PEN register and trap and trace techniques that police use to map the extent of criminal conspiracies. It is unaffected by any encryption that the callers may apply. With respect to other kinds of electronic surveillance, the picture for law enforcement looks even brighter. Miniaturization of electronics and improvements in digital signal processing are making bugs smaller, improving their fidelity, making them harder to detect, and making them more reliable. Forms of electronic surveillance for which no warrant is held to be necessary, particularly TV cameras in public places, have become widespread. This creates a base of information that was, for example, used in two distinct ways in the Tylenol poisoning case of the mid-1980s. Broadening the consideration of high tech crime fighting tools to include vehicle tracking, DNA fingerprinting, individual recognition by infrared tracing of the veins in the face, and database profiling, makes it seem unlikely that the failures of law enforcement are due to the inadequacy of its technical tools. If we turn our attention to foreign intelligence, we see a similar picture. Communications intelligence today is enjoying a golden age. The steady migration of communications from older, less accessible, media, both physical and electronic, has been the dominant factor. The loss of information resulting from improvements in security has been consistently outweighed by the increased volume and quality of information available. As a result, the communications intelligence product has been improving for more than fifty years, with no end in sight. The rising importance of telecommunications in the life of industrialized countries coupled with the rising importance of wireless communications, can be expected to give rise to an intelligence bonanza in the decades to come. Mobile communication is one of the fastest growing areas of the telecommunications industry and the advantages of cellular phones, wireless local area networks, and direct satellite communication systems are such that they are often installed even in applications where mobility is not required. Satellite communications are in extensive use, particularly in equatorial regions and cellular telephone systems are being widely deployed in rural areas throughout the world in preference to undertaking the substantial expense of subscriber access wiring. New technologies are also opening up new possibilities. Advances in emitter identification, network penetration techniques, and the implementation of cryptanalytic or crypto-diagnostic operations within intercept equipment are likely to provide more new sources of intelligence than are lost as a result of commercial use of cryptography. It should also be noted that changing circumstances change appropriate behavior. Although intelligence continues to play a vital role in the post cold war world, the techniques that were appropriate against an opponent capable of destroying the United States within hours may not be appropriate against merely economic rivals. If, however, that we accept that some measure of control over the deployment of cryptography is needed, we must distinguish two cases: The use of cryptography to protect communications and The use of cryptography to protect stored information. It is good security practice in protecting communications to keep any keys that can be used to decipher the communications for as short a time as possible. Discoveries in cryptography in the past two decades have made it possible to have secure telephones in which the keys last only for the duration of the call and can never be recreated, thereafter. A key escrow proposal surrenders this advantage by creating a new set of escrowed keys that are stored indefinitely and can always be used to read earlier traffic. With regard to protection of stored information, the situation is quite different. The keys for decrypting information in storage must be kept for the entire lifetime of the stored information; if they are lost, the information is lost. An individual might consider encrypting files and trusting the keys to memory, but no organization of any size could risk the bulk of its files in this fashion. Some form of key archiving, backup, or escrow is thus inherent in the use of cryptography for storage. Such procedured will guarantee that encrypted files on disks are accessible to subpoena in much the same way that file on paper are today. Many business communications, such as electronic funds transfers, fall into an intermediate category. Although the primary purpose is communication rather than storage, the transactions are of a formal nature. In these cases, an escrow mechanism much like those in current commercial use may be appropriate. In a high value transaction, where the buyer and seller do not have an established business relationship, either party may demand the use of a mutually trusted escrow agent who will take temporary custody of both the goods and the payment. In a similar fashion, either party to an encrypted transaction might demand that only keys escrowed with a mutually acceptable escrow agent be used. What is most important here is that the laws, customs, and practices governing electronic commerce and, in a broader context, electronic society are just beginning to develop. It is likely that escrow mechanisms will be among the tools employed. It is, however, too early to say what form they should take. They will need to be worked out as society gets more experience with the new communications media. They should not be imposed by government before society's real needs have been determined. Conduct of the Key Escrow Initiative In my experience, the people who support the key escrow initiative are inclined to express substantial trust in the government. I find it ironic therefore that in its conduct of this program, the administration has followed a course that could hardly have been better designed to provoke distrust. The introduction of mechanisms designed to assure the governments ability to conduct electronic surveillance on its citizens and limit the ability of the citizens to protect themselves against such surveillance is a major policy desision of the information age. It has been presented, however, as a technicality, buried in an obscure series of regulations. In so doing, it has avoided congressional consideration of either its objectives or its budget. The underlying secrecy of the technology has been used as a tool for doleing out information piecemeal and making a timely understanding of the issues difficult to achieve. Suppose We Make a Mistake In closing, I would like to ask a question. Suppose we make a mistake? o Suppose we fail to adopt a key excrow system and later decide that one is needed? o Suppose we adopt a key escrow system now when none is needed? Which would be the more serious error? It is generally accepted that rights are not absolute. If private access to high-grade encryption presented a clear and present danger to society, there would be little political opposition to controlling it. The reason there is so much disagreement is that there is so little evidence of a problem. If allowing or even encouraging wide dissemination of high-grade cryptography proves to be a mistake, it will be a correctable mistake. Generations of electronic equipment follow one another very quickly. If cryptography comes to present such a problem that there is popular consensus for regulating it, this will be just as possible in a decade as it is today. If on the other hand, we set the precedent of building government surveillance capabilities into our security equipment we risk entrenching a bureaucracy that will not easily surrender the power this gives. Recommendation In light of these considerations, I would like to suggest that the Federal Standards making process should be brought back into line with the intent of the Computer Security Act of 1987. Congres should press the National Institute of Standards and Technology, with the cooperation of the National Security Agency, to declassify the SKIPJACK algorithm and issue a revised version of FIPS 185 that specifies the algorithm and omits the key escrow provisions. This would be a proper replacement for FIPS 46, the Data Encryption Standard, and would serve the needs of the U.S. Government, U.S. industry, and U.S. citizens for years to come. Notes I have examined some aspects of the subjects treated here at greater length in other testimony and comments and copies of these have been made available to the committee. "The Impact of Regulating Cryptography on the Computer and Communications Industries" Testimony Before the House Subcommittee on Telecommunications and Finance, 9 June 1993. "The Impact of a Secret Cryptographic Standard on Encryption, Privacy, Law Enforcement and Technology" Testimony Before the House Subcommittee on Science and Technology, 11 May 1993 Letter to the director of the Computer Systems Laboratory at the National Institute of Standards and Technology, commenting on the proposed Escrowed Encryption Standard, 27 September 1993. ------------------------------ End of Computer Underground Digest #6.44 ************************************


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