The Puzzles of Privacy Cryptography and the Future of Liberty Three Columns for Communications of the ACM by John Perry Barlow Electronic Frontier Foundation ß Wyoming, New York, San Francisco 1991~1993 Private Life in Cyberspace For the June, 1991 Electronic Frontier column in Communications of the ACM by John Perry Barlow I have lived most of my life in a small Wyoming town, where there is little of the privacy which both insulates and isolates suburbanites. Anyone in Pinedale who is interested in me or my doings can get most of the information he might seek in the Wrangler Cafe. Between them, any five customers could probably produce all that was known locally about me, including a quite a number of items which were well known but not true. For most people who have never lived in these conditions, the idea that one's private life might be public knowledge...and, worse, that one's neighbors might fabricate tales about him when the truth would do...is a terrifying thought. Whether they have anything to hide or not (and most everyone harbors something he's not too proud of), they seem to assume that others would certainly employ their private peccadillos against them. But what makes the fishbowl of community tolerable is a general willing ness of small towns to forgive in their own all that should be forgiven. One is protected from the malice of his fellows not by their lack of dangerous information about him but by their disinclina tion to use it. I found myself thinking a lot about this during a recent San Francisco conference on Computers, Privacy, and Freedom. Like most of the attendees, I had arrived there bearing the assumption that there was some necessary connection between privacy and freedom and that among the challenges to which computers may present to our future liberties was their ability to store, transfer, and duplicate the skeletons from our closets. With support from the Electronic Frontier Foundation, Apple Computer, the WELL, and a number of other organiza tions, the confer ence was put on by Computer Professionals for Social Responsibili ty, a group which has done much to secure to Americans the ownership of their private lives.Their Man in Washing ton, Marc Rotenberg, hit the hot key which resulted in Lotus getting 30,000 letters, phone calls, and e-mail messages protesting the release of Lotus Marketplace: Households. In case you haven't left your terminal in awhile, this was a product whose CD-ROM's of addresses and demo graph ic informa tion would have ushered in the era of Desktop Junkmail. Suddenly anyone with 600 bucks and a CD-ROM drive could have been stuffing your mailbox with their urgent appeals. Marketplace withered under the heat, and I didn't hear a soul mourn its passage. Most people seemed happy to leave the massive marketing databases in institutional hands, thinking perhaps that junkmail might be one province where democracy was better left unspread. I wasn't so sure. For example, it occurred to me that Lotus could make a strong legal, if not commercial, case that Marketp lace was a publication protected by the First Amend ment. It also seemed that a better approach to the scourge of junkmail might be political action directed toward getting the Postal Service to raise its rates on bulk mailing. (Or perhaps even eliminating the Postal Service, which seems to have little function these days beyond the delivery of instant landfills.) Finally, I wondered if we weren't once again blaming the tool and not the workman, as though the problem were informa tion and not its misuse. I felt myself gravitating toward the politically incorrect side of the issue, and so I kept quiet about it. At the Conference on Computers, Privacy, and Freedom, the no one was keeping quiet. Speaker after speaker painted a picture of gathering informational fascism in which Big Brother was entering our homes dressed in the restrained Italian suit of the Marketroid. Our every commercial quiver was being recorded, collated, and widely redistributed. One began to imagine a Cyberspace smeared all over with his electronic finger prints, each of them gradually growing into a full-blown virtual image of himself as Potential Customer. I could see an almost infinite parade of my digital simulacra marching past an endless wall of billboards. There was discussion of opting out of the databases, getting through modern American life without ever giving out one's National Identity Number (as the Social Security Number has indisputably become by default), endeavoring to restrict one's existence to the physical world. The poor fellow from Equifax mouthed smooth corporatisms about voluntary restraints on the secondary use of information...such practices as selling the fact of one's purchase from one catalog to fifteen other aspirants...but no one believed him. Everyone seemed to realize that personal information was as much a commodi ty as pork bellies, fuel oil, or crack and that the market would be served. They were right. In the week following the Conference, I got a solicitation from CACI Marketing Systems which began: Now Available! Actual 1990 Census Data. This despite Depart ment of Commerce assurances that Census Data would not be put to commercial use. Marketplace is dead. Long live Marketplace. When it came down to solutions, however, there seemed to be developing a canonical approach which was all too familiar: let's write some laws. The European Commu ni ty's privacy standards, scheduled to be implemented by the member nations in 1992, were praised. Similar legislation was proposed for the United States. Quite apart from the impracticality of entrusting to government another tough problem (given its fairly undistin guished record in addressing the environ men tal, social, or educational responsi bil i ties it already has), there is a good reason to avoid this strategy. Legally assuring the privacy of one's personal data involves nothing less than endowing the Federal Govern ment with the right to restrict information. It may be that there is a profound incompati bility between the requirements of privacy (at least as achieved by this methods) and the require ments of liberty. It doesn't take a paranoid to believe that restrictions placed on one form of information will expand to include others. Nor does it take a Libertarian to believe that the imposition of contraband on a commodity probably won't eliminate its availability. I submit, as Exhibit A, the War on Some Drugs. I began to envision an even more dystopian future in which the data cops patrolled Cyberspace in search of illicit personal info, finding other items of legal interest along the way. Meanwhile, institu tions who could afford the elevated price of illegal goods would continue to buy it from thuggish Data Cartels in places like the Turks and Caicos Islands, as sf-writer Bruce Sterling predicted in Islands in the Net. I returned to Wyoming in a funk. My ghostly electronic selves increased their number on my way home as I bought airline tickets, charged to my credit cards, make long distance phone calls, and earned another speeding ticket. The more I thought about it, the more I became convinced that nothing short of a fugitive cash-based existence would prevent their continued duplication. And even that would never exorcise them all. I was permanently on record. Back in Pinedale, where I am also on record, my head started to clear. Barring government regula tion of information, for which I have no enthusiasm, it seemed inevitable that the Global Village would resemble a real village at least in the sense of eliminating the hermetic sealing of one's suburban privacy. Everyone would start to lead as public a life as I do at home. And in that lies at least a philosophical vector towards long-term social solution. As I say, I am protected in Pinedale not by the restriction of information but by a tolerant social contract which prohibits its use against me. (Unless, of course, it's of such a damning nature that it ought to be used against me.) What may be properly restricted by government is not the tool but the work that is done with it. If we don't like junkmail, we should make it too expensive to send. If we don't trust others not to hang us by our errors, we must work to build a more tolerant society. But this approach has a fundamental limit on its effectiveness. While it may, over the long run, reduce the suffering of marketing targets, it does little to protect one from the excesses of a more authori tar i an govern ment than the one we have today. This Republic was born in the anonymous broad sides of citizens who published them under Latinate pseudonyms like Publius Civitatus. How would the oppressed citizens of the electronic future protect the source of rebellion? Furthermore, much of the tolerance which I experience in Pinedale has to do with the fact that we experience one another here. We are not abstracted into information, which, no matter how dense it becomes, is nothing to grow a human being from. And it will be a long time before we exist in Cyberspace as anything but information. While I generally resist technical solutions to social problems, it seems best approach to this digital dilemma is also machine-based: encryption. At the CFP Conference, EFF co-founder John Gilmore called on the computer industry to include in their products tools which would enhance the privacy of their communications. These might include hardware-based public key encryption schemes, though these are probably too narrow in scale to cover the whole problem. He also noted that it is possible to have an electronic identity which is not directly connected to one's physical self. I agree with him that it is not only possible but advisable. From the standpoint of credit assurance, there is no difference between the information that John Perry Barlow always pays his bills on time or that Account #345 8849 23433 (to whomever that may belong) is equally punctilious. There are, of course, a number of problems with encrypted identity, not the least of which the development of a long-term credit record attached to disembodied number. And keeping that number disembodied over the same long term is not a trivial enterprise. Finally, there is the old political question..."What are you trying to hide?"...in which the effort to conceal is taken to be a statement of guilt. This might limit a willingness on the part of information carriers to engage in the compli ance necessary to make this system work. Of course, neither machine-based encryption systems nor encrypted identities will become reality unless the computer, communications, and information industries perceive there to be technically feasible methods of providing these services and people willing to pay for them. ACM members are well situated to provide both the technology and the initial market for it. And, as usual, we would be well-advised to keep of abreast of political developments. As I write this, there are before congress a Couple of bills which would render encryption meaningless. Senator Joseph Biden has intro duced Senate Bill 266 which declares: It is the sense of Congress that providers of electronic communications systems permit the govern ment to obtain the plain text contents of voice, data, and other communications when appropriately authorized by law. It appears that the FBI's concern in requesting this language was the difficulty of tapping multi plexed phone lines, but the bill nevertheless says, "turn over your encryption keys." These words probably won't become law, but even if they don't, it seems certain that we haven't seen the last of them, inasmuch as similar language is also to be found in S. 618, The Violent Crime Control Act of 1991. Both of these bills address a legitimate law-enforce ment concern: how to build a case when all the evidence is en crypted, but as in other areas of information vs. action, they should place their focus on the dirty deed and not the planning of it. Another legislative vicinity to watch are efforts to amend the Electronic Communications Privacy Act to address more adequately cellular and other wireless technologies. This is especially relevant since, as Nicholas Negroponte has predicted, information which has traditionally flowed through cables, like telephone conversations, are taking to the air while broadcast information is moving underground. Entirely different assumptions prevail between broadcast and one-to-one communica tions which will now be questioned legally and technically. EFF believes that legal constraints on intercepting private wireless communications will not be sufficient to address the problem. Cellular manufacturers and service providers must be urged provide their customers with the cheap encryption methods which are already available. At the same time, they should be legally required to inform their customers of the easy interception of non-encrypted communications. Finally, in our zeal to protect the privacy of cellular conversa tion, we should be careful not to criminalize simple scanning of the airwaves, most of which has no specific target or intent, lest we pass laws which inhibit access to information. All in all, we are looking at some tough challenges, both technologically and politically. Computer technolo gy has created not just a new medium but a new place. The society we erect there will probably be quite different from the one we now inhabit, given the fact that this one depends heavily on the physical property of things while the next one has no physical properties at all. Certain qualities should survive the transfer, howev er, and these include tolerance, respect for privacy of others, and a willingness to treat one's fellows as something besides potential customers. But until we have developed the Social Contract of Cyberspace, we must create, though encryption and related means, the virtual envelopes and rooms within which we can continue to lead private lives as we enter this new and very public place. Pinedale, Wyoming March 30, 1991 Decrypting the Puzzle Palace For the June, 1992 Electronic Frontier column in Communications of the ACM by John Perry Barlow "A little sunlight is the best disinfectant." --Justice Louis Brandeis Over a year ago, in a condition of giddier innocence than I enjoy today, I wrote the following about the discovery of Cyberspace: "Imagine discovering a continent so vast that it may have no other side. Imagine a new world with more resources than all our future greed might exhaust, more opportunities than there will ever be entrepreneurs enough to exploit, and a peculiar kind of real estate which expands with development." One less felicitous feature of this terrain which I hadn't noticed then is what seems to be a long-encamped and immense army of occupation. This army represents interests which are difficult to define, guards the area against unidentified enemies, meticulously observes almost every activity undertaken there, and continuously prevents most who inhabit its domain from drawing any blinds against such observation. It marshals at least 40,000 troops, owns the most advanced computing resources in the world, and uses funds the dispersal of which does not fall under any democratic review. Imagining this force won't require from you the inventive powers of a William Gibson. The American Occupation Army of Cyberspace exists. Its name is the National Security Agency. It may be argued that this peculiar institution inhibits free trade, has directly damaged American competitiveness, and poses a threat to liberty anywhere people communicate with electrons. It's principal function, as my EFF colleague John Gilmore puts it, is "wire-tapping the world," which it is free to do without a warrant from any judge. It is legally constrained from domestic surveillance, but precious few people are in a good position to watch what, how, or whom the NSA watches. And those who are tend to be temperamentally sympathetic to its objectives and methods. They like power, and power understands the importance of keeping it own secrets and learning everyone else's. Whether it is meticulously ignoring every American byte or not, the NSA is certainly pursuing policies which will render our domestic affairs transparent to anyone who can afford big digital hardware. Such policies could have profound consequences on our liberty and privacy. More to point, the role of the NSA in the area of domestic privacy needs to be assessed in the light of other recent federal initiatives which seem directly aimed at permanently denying privacy to the inhabitants of Cyberspace, whether foreign or American. Finally it seems a highly opportune time, directly following our disorienting victory in the Cold War, to ask if the threats from which the NSA purportedly protects us from are as significant as the hazards its activities present. Like most Americans I'd never given much thought to the NSA until recently. (Indeed its very existence was a secret for much of my life. Beltway types used to joke that NSA stood for "No Such Agency.") I vaguely knew that it was another of the 12 or so shadowy federal spook houses which were erected shortly after the Iron Curtain with the purpose of stopping its further advance. It derives entirely from a memorandum sent by Harry Truman on October 24, 1952 to Secretary of State Dean Acheson and Defense Secretary Robert Lovatt. This memo, the official secrecy of which remained unpenetrated for almost 40 years, created the NSA, placed it under the authority of the Secretary of Defense, and charged it with monitoring and decoding any signal transmission relevant to the security of the United States. Even after I started noticing the NSA, my natural immunity to paranoia combined with a general belief in the incompetence of all bureaucracies...especially those whose inefficiencies are unmolested by public scrutiny...to mute any sense of alarm. But this was before I began to understand the subterranean battles raging over data encryption and the NSA's role in them. Lately, I'm less sanguine. As I mentioned in a previous column (Private Life in Cyberspace, August 1991), encryption may be the only reliable method for conveying privacy to the inherently public domain of Cyberspace. I certainly trust it more than privacy protection laws. Relying on government to protect your privacy is like asking a peeping tom to install your window blinds. In fact, we already have a strong-sounding federal law protecting our electronic privacy, the Electronic Communications Privacy Act or ECPA. But this law has not particular effective in those areas were electronic eavesdropping is technically easy. This is especially true in the area of cellular phone conversations, which, under the current analog transmission standard, are easily accessible to anyone from the FBI to you. The degree of law enforcement apprehension over secure cellular encryption provides mute evidence of how seriously they've been taking ECPA. They are moving on a variety of fronts to see that robust electronic privacy protection systems don't become generally available to the public. Indeed, the current administration may be so determined to achieve this end that they may be willing to paralyze progress in America's most promising technologies rather than yield on it. Push is coming to shove in two areas of communications technology: digital transmission of heretofore analog signals and the encryption of transmitted data. As the communications service providers move to packet switching, fiber optic transmission lines, digital wireless, ISDN and other advanced techniques, what have been discrete channels of continuous electrical impulses, voices audible to anyone with alligator clips on the right wires, are now becoming chaotic blasts of data packets, readily intelligible only to the sender and receiver. This development effectively forecloses traditional wire-tapping techniques, even as it provides new and different opportunities for electronic surveillance. It is in the latter area where the NSA knows its stuff. A fair percentage of the digital signals dispatched on planet Earth must pass at some point through the NSA's big sieve in Fort Meade, Maryland, 12 underground acres of the heaviest hardware in the computing world. There, unless these packets are also encrypted with a particularly knotty algorithm, sorting them back back into their original continuity is not so difficult. Last spring, alarmed at a future in which it would have to sort through an endless fruit salad of encrypted bits, the FBI persuaded Senator Joseph Biden to include language in Senate Bill 266 which would have directed providers of electronic communications services and devices (such as digital cellular phone systems or other multiplexed communications channels) to implement only such encryption methods as would assure governmental ability to extract from the data stream the plaintext of any voice or data communications in which it took a legal interest. It was if the government had responded to a technological leap in lock design by requiring building contractors to supply it with skeleton keys to every door in America. The provision raised wide-spread concern in the computer community, which was better equipped to understand its implications than the general public, and in August of last year, the Electronic Frontier Foundation, in cooperation with Computer Professionals for Social Responsibility and other industry groups, successfully lobbied to have it removed from the bill. Our celebration was restrained. I knew we knew we hadn't seen the last of it. For one thing, the movement to digital communications does create some serious obstacles to traditional wire-tapping procedures. I fully expected that law enforcement would be back with new proposals, which I hoped might be ones we could support. But what I didn't understand then, and am only now beginning to appreciate, was the extent to which this issue had already been engaged by the NSA in the obscure area of export controls over data encryption algorithms. Encryption algorithms, despite their purely defensive characteristics, have been regarded by the government of this country as weapons of war for many years. If they are to be employed for privacy (as opposed to authentication) and they are any good at all, their export is licensed under State Department's International Traffic in Arms Regulations or ITAR. The encryption watchdog is the NSA. It has been enforcing a policy, neither debated nor even admitted to, which holds that if a device or program contains an encryption scheme which the NSA can't break fairly easily, it will not be licensed for international sale. Aside for marvelling at the silliness of trying to embargo algorithms, a practice about as practicable as restricting the export of wind, I didn't pay much attention to the implications of NSA encryption policies until February of this year. It was then that I learned about the deliberations of an an obscure group of cellular industry representatives called the Ad Hoc Authentication Task Force, TR45.3 and of the influence which the NSA has apparently exercised over their findings. In the stately fashion characteristic of standard-setting bodies, this group has been working for several years on a standard for digital cellular transmission, authentication, and privacy protection to be known by the characteristically whimsical telco moniker IS-54B. In February they met near Giants Stadium in East Rutherford, NJ. At that meeting, they recommended, and agreed not to publish, an encryption scheme for American-made digital cellular systems which many sophisticated observers believe to be intentionally vulnerable. It was further thought by many observers that this "dumbing down" had been done in direct cooperation with the NSA. Given the secret nature of the new algorithm, its actual merits were difficult to assess. But many cryptologists believe there is enough in the published portions of the standard to confirm that it isn't any good. One cryptographic expert, one of two I spoke with who asked not to be identified lest the NSA take reprisals against his company, said: "The voice privacy scheme , as opposed to the authentication scheme, is pitifully easy to break. It involves the generation of two "voice privacy masks" each 260 bits long. They are generated as a byproduct of the authentication algorithm and remain fixed for the duration of a call. The voice privacy masks are exclusive_ORed with each frame of data from the vocoder at the transmitter. The receiver XORs the same mask with the incoming data frame to recover the original plaintext. Anyone familiar with the fundamentals of cryptanalysis can easily see how weak this scheme is." And indeed, Whitfield Diffie, co-inventor of Public Key cryptography and arguably the dean of this obscure field, told me this about the fixed masks: "Given that description of the encryption process, there is no need for the opponents to know how the masks were generated. Routine cryptanalytic operations will quickly determine the masks and remove them.'' Some on committee claimed that possible NSA refusal of export licensing had no bearing on the algorithm they chose. But their decision not to publish the entire method and expose it to cryptanalytical abuse (not to mention ANSI certification) was accompanied by the following convoluted justification: "It is the belief of the majority of the Ad Hoc Group, based on our current understanding of the export requirements, that a published algorithm would facilitate the cracking of the algorithm to the extent that its fundamental purpose is defeated or compromised." (Italics added.) Now this is a weird paragraph any way you parse it, but its most singular quality is the sudden, incongruous appearance of export requirements in a paragraph otherwise devoted to algorithmic integrity. In fact, this paragraph is itself code, the plaintext of which goes something like this: "We're adopting this algorithm because, if we don't, the NSA will slam an export embargo on all domestically manufactured digital cellular phones." Obviously, the cellular phone systems manufacturers and providers are not going to produce one model for overseas sale and another for domestic production. Thus, a primary effect of NSA-driven efforts to deny some unnamed foreign enemy secure cellular communications is on domestic security. The wireless channels available to private Americans will be cloaked in a mathematical veil so thin that, as one crypto-expert put it, "Any county sheriff with the right PC-based black box will be able to monitor your cellular conversations." When I heard him say that, it suddenly became clear to me that, whether consciously undertaken with that goal or not, the most important result of the NSA's encryption embargoes has been the future convenience of domestic law enforcement. Thanks to NSA export policies, they will be assured that, as more Americans protect their privacy with encryption, it will be of a sort easily penetrated by authority. I find it increasingly hard to imagine this is not their real objective as well. Surely, they must be aware of how ineffectual their efforts have been in keeping good encryption out of inimical military possession. An algorithm is somewhat less easily stopped at the border than, say, a nuclear reactor. As William Neukom, head of Microsoft Legal puts it, "The notion that you can control this technology is comical." I became further persuaded that this was the case upon hearing, from a couple of sources, that the Russians have been using the possibly uncrackable (and American) RSA algorithm in their missile launch codes for the last ten years and that, for as little as five bucks, one can get a software package called Crypto II on the streets of Saint Petersburg which includes both RSA and DES encryption systems. Nevertheless, the NSA has been willing to cost American business a lot of revenue rather than allow domestic products with strong encryption into the global market. While it's impossible to set a credible figure on what that loss might add up to, it's high. Jim Bidzos, whose RSA Data Security licenses RSA, points to one major Swiss bid in which a hundred million dollar contract for financial computer terminals went to a European vendor after American companies were prohibited by the NSA from exporting a truly secure network. The list of export software containing intentionally broken encryption is also long. Lotus Notes ships in two versions. Don't count on much protection from the encryption in the export version. Both Microsoft and Novell have been thwarted in their efforts to include RSA in their international networking software, despite frequent publication of the entire RSA algorithm in technical publications all over the world. With hardware, the job has been easier. NSA levied against the inclusion of a DES chip in the AS/390 series IBM mainframes in late 1990 despite the fact that, by this time, DES was in widespread use around the world, including semi-official adoption by our official enemy, the USSR. I now realize that Soviets have not been the NSA's main concern at any time lately. Naively hoping that, with the collapse of the Evil Empire, the NSA might be out of work, I then learned that, given their own vigorous crypto systems and their long use of some embargoed products, the Russians could not have been the threat from whom this forbidden knowledge was to be kept. Who has the enemy been then? I started to ask around. Cited again and again as the real object of the embargoes were Third-World countries. terrorists and... criminals. Criminals, most generally drug-flavored, kept coming up, and nobody seemed terribly concerned that some of their operations might be located in areas supposedly off-limits to NSA scrutiny. Presumably the NSA is restricted from conducting American surveillance by both the Foreign Intelligence Surveillance Act of 1978 (FISA) and a series of presidential directives, beginning with one issued by President Ford following Richard Nixon's bold misuse of the NSA, in which he explicitly directed the NSA to conduct widespread domestic surveillance of political dissidents and drug users. But whether or not FISA has actually limited the NSA's abilities to conduct domestic surveillance seemed less relevant the more I thought about it. A better question to ask was, "Who is best served by the NSA's encryption export policies?" The answer is clear: domestic law enforcement. Was this the result of some spook plot between NSA and, say, the Department of Justice? Not necessarily. Certainly in the case of the digital cellular standard, cultural congruity between foreign intelligence, domestic law enforcement, and what somebody referred to as "spook wannabes on the TR45.3 committee" might have a lot more to do with the its eventual flavor than any actual whisperings along the Potomac. Unable to get anyone presently employed by the NSA to comment on this or any other matter and with little opportunity to assess the NSA's congeniality toward domestic law enforcement from the inside, I approached a couple of old hands for a highly distilled sample of intelligence culture. I called Admirals Stansfield Turner and Bobby Ray Inman. Not only had their Carter administration positions as, respectively, CIA and NSA Directors, endowed them with considerable experience in such matters, both are generally regarded to be somewhat more sensitive to the limits of democratic power than their successors. None of whom seemed likely to return my calls anyway. My phone conversations with Turner and Inman were amiable enough, but they didn't ease my gathering sense that the NSA takes an active interest in areas which are supposedly beyond its authorized field of scrutiny. Turner started out by saying he was in no position to confirm or deny any suspicions about direct NSA-FBI cooperation on encryption, but he didn't think I was being exactly irrational in raising the question. In fact, he genially encouraged me to investigate the matter further. He also said that while a sub rosa arrangement between the NSA and the Department of Justice to compromise domestic encryption would be "injudicious," he could think of no law, including FISA (which he helped design), which would prevent it. Most alarmingly, this gentleman who has written eloquently on the hazards of surveillance in a democracy did not seem terribly concerned that our digital shelters are being rendered permanently translucent by and to the government. He said, "A threat could develop...terrorism, narcotics, whatever...where the public would be pleased that all electronic traffic was open to decryption. You can't legislate something which forecloses the possibility of meeting that kind of emergency." Admiral Inman had even more enthusiasm for assertive governmental supervision. Although he admitted no real knowledge of the events behind the new cellular encryption standard, he wasn't the least disturbed to hear that it might be flawed. And, despite the fact that his responsibilities as NSA Director had been restricted to foreign intelligence, he seemed a lot more comfortable talking about threats on the home front. "The Department of Justice," he began, "has a very legitimate worry. The major weapon against white collar crime has been the court-ordered wiretap. If the criminal elements go to using a high quality cipher, the principal defense against narcotics traffic is gone." This didn't sound like a guy who, were he still head of NSA, would rebuff FBI attempts to get a little help from his agency. He brushed off my concerns about the weakness of the cellular encryption standard. "If all you're seeking is personal privacy, you can get that with a very minimal amount of encipherment." Well, I wondered, Privacy from whom? And he seemed to regard real, virile encryption to be something rather like a Saturday Night Special. "My answer," he said, "would be legislation which would make it a criminal offense to use encrypted communication to conceal criminal activity." Wouldn't that render all encrypted traffic automatically suspect? I asked. "Well, he said, "you could have a registry of institutions which can legally use ciphers. If you get somebody using one who isn't registered, then you go after him." You can have my encryption algorithm, I thought to myself, when you pry my cold dead fingers from its private key. It wasn't a big sample, but it was enough to gain a better appreciation of the cultural climate of the intelligence community. And these guys are the liberals. What legal efficiencies might their Republican successors be willing to employ to protect the American Way? Without the comfortably familiar presence of the Soviets to hate and fear, we can expect to see a sharp increase in over-rated bogeymen and virtual states of emergency. This is already well under way. I think we can expect our drifting and confused hardliners to burn the Reichstag repeatedly until they have managed to extract from our induced alarm the sort of government which makes them feel safe. This process has been under way for some time. One sees it in the war on terrorism, against which pursuit "no liberty is absolute," as Admiral Turner put it. This, despite the fact that, during last year for which I have a solid figure, 1987, only 7 Americans succumbed to terrorism. You can also see it clearly under way in the War on Some Drugs. The Fourth Amendment to the Constitution has largely disappeared in this civil war. And among the people I spoke with, it seemed a common canon that drugs (by which one does not mean Jim Beam, Marlboros, Folger's, or Halcion) were a sufficient evil to merit the government's holding any more keys it felt the need for. One individual close to the committee said that at least some of the afore-mentioned "spook wannabes" on the committee were "interested in weak cellular encryption because they considered warrants not to be "practical" when it came to pursuing drug dealers and other criminals using cellular phones." In a miscellaneously fearful America, where the people cry for shorter chains and smaller cages, such privileges as secure personal communications are increasingly regarded as expendable luxuries. As Whitfield Diffie put it, "From the consistent way in which Americans seem to put security ahead of freedom, I rather fear that most of them would prefer that all electronic traffic was open to government decryption right now if they had given it any thought." In any event, while I found no proof of an NSA-FBI conspiracy to gut the American cellular phone encryption standard, it seemed clear to me that none was needed. The same results can be delivered by a cultural "auto-conspiracy" between like-minded hardliners and cellular companies who will care about privacy only when their customers do. You don't have to be a hand-wringing libertarian like me to worry about the domestic consequences of the NSA's encryption embargoes. They are also, as stated previously, bad for business, unless, of course, the business of America is no longer business but, as sometimes seems the case these days, crime control. As Ron Rivest (the "R" in RSA) said to me, "We have the largest information based economy in the world. We have have lots of reasons for wanting to protect information, and weakening our encryption systems for the convenience of law enforcement doesn't serve the national interest." But by early March, it had become clear that this supposedly business-oriented administration had made a clear choice to favor cops over commerce even if the costs to the American economy were to become extremely high. A sense of White House seriousness in this regard could be taken from their response to the first serious effort by Congress to bring the NSA to task for its encryption embargoes. Rep. Mel Levine (D-Calif.) proposed an amendment to the Export Administration Act to transfer mass market software controls to the Commerce Department, which would relax the rules. The administration responded by saying that they would veto the entire bill if the Levine amendment remained attached to it. Even though it appeared the NSA had little to fear from Congress, the Levine amendment may have been part of what placed the agency in a bargaining mood for the first time. They entered into discussions with the Software Publishers Association who, acting primarily on behalf of Microsoft and Lotus, got to them to agree "in principle" to a streamlined process for export licensing of encryption which might provide for more robust standards than have been allowed previously. But the negotiations between the NSA and the SPA were being conducted behind closed doors, with the NSA-imposed understanding that any agreement they reached would be set forth only in a "confidential" letter to Congress. As in the case of the digital cellular standard, this would eliminate the public scrutiny by cryptography researchers which anneals genuinely hardened encryption. Furthermore, some cryptographers worried that the encryption key lengths to which the SPA appeared willing to restrict its member publishers might be too short to provide much defense against the sorts of brute-force decryption assaults which advances in processor technology will yield in the fairly near future. And brute force has always been the NSA's strong suit. Whether accurate or not, the impression engendered by the style of the NSA-SPA negotiations was not one of unassailable confidence. The lack of it will operate to the continued advantage of foreign manufacturers in an era when more and more institutions are going to be concerned about the privacy of their digital communications. But the economic damage which the NSA-SPA agreement might cause would be minor compared to what would result from a startling new federal initiative, the Department of Justice's proposed legislation on digital telephony. If you're wondering what happened to the snooping provisions which were in Senate Bill 266, look no further. They're back. And they're bigger and bolder than ever. They are contained in a sweeping proposal which have been made by the Justice Department to the Senate Commerce Committee for legislation which would "require providers of electronic communications services and private branch exchanges to ensure that the Government's ability to lawfully intercept communications is unimpeded by the introduction of advanced digital telecommunications technology or any other telecommunications technology." Amazingly enough, this really means what it says: before any advance in telecommunications technology can be deployed, the service providers and manufacturers must assure the cops that they can tap into it. In other words, development in digital communications technology must come to a screeching halt until Justice can be assured that it will be able to grab and examine data packets with the same facility they have long enjoyed with analog wire-tapping. It gets worse. The initiative also provides that, if requested by the Attorney General, "any Commission proceeding concerning regulations, standards or registrations issued or to be issued under authority of this section shall be closed to the public." This essentially places the Attorney General in a position to shut down any telecommunications advance without benefit of public hearing. When I first heard of the digital telephony proposal, I assumed it was a kind of bargaining chip. I couldn't imagine it was serious. But it now appears they are going to the mattresses on this one. Taken together with NSA's continued assertion of its authority over encryption, a pattern becomes clear. The government of the United States is so determined to maintain law enforcement's traditional wire-tapping abilities in the digital age that it is willing to fundamentally cripple the American economy to do so. This may sound hyperbolic, but I believe it is not. The greatest technology advantage this country presently enjoys is in the areas of software and telecommunications. Furthermore, thanks in large part to the Internet, much of America is already wired for bytes, as significant an economic edge in the Information Age as the existence of a railroad system was for England one hundred fifty years ago. If we continue to permit the NSA to cripple our software and further convey to the Department of Justice the right to stop development the Net without public input, we are sacrificing both our economic future and our liberties. And all in the name of combatting terrorism and drugs. This has now gone far enough. I have always been inclined to view the American government as pretty benign as such creatures go. I am generally the least paranoid person I know, but there is something scary about a government which cares more about putting its nose in your business than it does about keeping that business healthy. As I write this, a new ad hoc working group on digital privacy, coordinated by the Electronic Frontier Foundation, is scrambling to meet the challenge. The group includes representatives from organizations like AT&T, the Regional Bells, IBM, Microsoft, the Electronic Mail Association and about thirty other companies and public interest groups. Under the direction of Jerry Berman, EFF's Washington office director, and John Podesta, a capable lobbyist and privacy specialist who helped draft the ECPA, this group intends to stop the provisions in digital telephony proposal from entering the statute books. We also intend to work with federal law enforcement officials to address their legitimate concerns. We don't dispute their need to conduct some electronic surveillance, but we believe this can be assured by more restrained methods than they're proposing. We are also preparing a thorough examination of the NSA's encryption export policies and looking into the constitutional implications of those policies. Rather than negotiating behind closed doors, as the SPA has been attempting to do, America's digital industries have a strong self-interest in banding together to bring the NSA's procedures and objectives into the sunlight of public discussion. Finally, we are hoping to open a dialog with the NSA. We need to develop a better understanding of their perception of the world and its threats. Who are they guarding us against and how does encryption fit into that endeavor? Despite our opposition to their policies on encryption export, we assume that NSA operations have some merit. But we would like to be able to rationally balance the merits against the costs. We strongly encourage any organization which might have a stake in the future of digital communication to become involved. Letters expressing your concern may be addressed to: Sen. Ernest Hollings, Chairman, Senate Commerce Committee, U.S. Senate, Washington, DC and to Don Edwards, Chairman, Subcommitee on Constitutional Rights, House Judiciary Committee. (I would appreciate hearing those concerns myself. Feel free to copy me with those letters at my physical address, c/o P.O. Box 1009, Pinedale, WY 82941 or in Cyberspace, barlow@eff.org.) If your organization is interested in becoming part of the digital privacy working group, please contact EFF's Washington office at: 666 Pennsylvania Avenue SE, Suite 303, Washington, DC 20003, 202/544-9237, fax: 202/547-5481. EFFs also encourages individuasl interested in these issues to join the organization. Contact us at: Electronic Frontier Foundation, 155 Second Street, Cambridge, MA 02141, 617/864-0665, eff-request@eff.org. The legal right to express oneself is meaningless if there is no secure medium through which that expression may travel. By the same token, the right to hold certain unpopular opinions is forfeit unless one can discuss those opinions with others of like mind without the government listening in. Even if you trust the current American government, as I am still largely inclined to, there is a kind of corrupting power in the ability to create public policy in secret while assuring that the public will have little secrecy of its own. In its secrecy and technological might, the NSA already occupies a very powerful position. And conveying to the Department of Justice what amounts to licensing authority for all communications technology would give it a control of information distribution rarely asserted over English-speaking people since Oliver Cromwell's Star Chamber Proceedings. Are there threats, foreign or domestic, which are sufficiently grave to merit the conveyance of such vast legal and technological might? And even if the NSA and FBI may be trusted with such power today, will they always be trustworthy? Will we be able to do anything about it if they aren't? Senator Frank Church said of NSA technology in 1975 words which are more urgent today: "That capability at any time could be turned around on the American people and no American would have any privacy left. There would be no place to hide. If this government ever became a tyranny, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny. There would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capacity of this technology." San Francisco, California Monday, May 4, 1992 A Plain Text on Crypto Policy For the October, 1993 Electronic Frontier column in Communications of the ACM by John Perry Barlow The field of cryptography, for centuries accustomed to hermetic isolation within a culture as obscure as its own puzzles, is going public. People who thought algorithms were maybe something you needed to dig rap music are suddenly taking an active interest in the black arts of crypto. We have the FBI and NSA to thank for this. The FBI was first to arouse public concerns about the future of digital privacy with its injection of language year before last into a major Senate anti-crime bill (SB 266) which would have registered the congressional intent that all providers of digitized communications should provide law enforcement with analog access to voice and data transmissions of their subscribers. When this was quietly yanked in committee, they returned with a proposed bill called Digital Telephony. If passed, it would have essentially called a halt to most American progress in telecommunications until they could be assured of their continued ability to wiretap. Strange but true. They were never able to find anyone in Congress technologically backward enough to introduce this oddity for them, but they did elevate public awareness of the issues considerably. The National Security Agency, for all its (unknown but huge) budget, staff, and MIPS, has about as much real world political experience as the Order of Trappists and has demonstrated in its management of cryptology export policies the maddening counter-productivity that is the usual companion of inexperience. The joint bunglings of these two agencies were starting to infuriate a lot of people and institutions who are rarely troubled by Large Governmental Foolishness in the Service of Paranoia. Along with all the usual paranoids, of course. Then from the NSA's caverns in Fort Meade, Maryland there slouched a chip called Clipper. For those of you who just tuned in (or who tuned out early), the Clipper Chip...now called Skipjack owing to a trademark conflict...is a hardware encryption device that NSA designed under Reagan-Bush. In April it was unveiled by the Clinton Administration and proposed for both governmental and public use. Installed in phones or other telecommunications tools, it would turn any conversation into gibberish for all but the speaker and his intended listener, using a secret military algorithm. Clipper/Skipjack is unique, and controversial, in that it also allows the agents of government to listen under certain circumstances. Each chip contains a key that is split into two parts immediately following manufacture. Each half is then placed in the custody of some trusted institution or "escrow agent." If, at some subsequent time, some government agency desires to legally listen in on the owner of the communications device in which the chip has been placed, it would present evidence of "lawful authority" to the escrow holders. They will reveal the key pairs, the agency will join them, and begin listening to the subject's unencrypted conversations. (Apparently there are other agencies besides law enforcement who can legally listen to electronic communications. The government has evaded questions about exactly who will have access to these keys, or for that matter, what, besides an judicial warrant, constitutes the "lawful authority" to which they continually refer.) Clipper/Skipjack was not well received. The blizzard of anguished ASCII it summoned forth on the Net has been so endlessly voluble and so painstaking in its "How-many-Cray-Years-can-dance-on-the-head-of-a-Clipper-Chip" technical detail that I would guess all but the real cypherpunks are by now data-shocked into listlessness and confusion. Indeed, I suspect that even many readers of this publication...a group with prodigious capacity for assimilating the arid and obscure...are starting to long for the days when their knowledge of cryptography and the public policies surrounding it was limited enough to be coherent. So I almost hesitate to bring the subject up. Yet somewhere amid this racket, decisions are being made that will profoundly affect your future ability to communicate without fear. Those who would sacrifice your liberty for their illusions of public safety are being afforded some refuge by the very din of opposition. In the hope of restoring both light and heat to the debate, I'm going to summarize previous episodes, state a few conclusions I've drawn about the current techno-political terrain, and recommend positions you might consider taking, as well as actions that might support them. Clipper/Skipjack Really Is A Dumb Idea. When I first heard about Clipper/Skipjack, I thought it might not be such a bad idea. This false conclusion was partly due to the reality distorting character of the location...I was about fifty feet away from the Oval Office at the time...but it also seemed like one plausible approach to what may be the bright future of crime in the Virtual Age. I mean, I can see what the Guardian Class is worried about. The greater part of business is already being transacted in Cyberspace. Most of the money is there. At the moment, however, most of the monetary bits in there are being accounted for. Accounting is digital,but cash is not. It is imaginable that, with the widespread use of digital cash and encrypted monetary exchange on the Global Net, economies the size of America's could appear as nothing but oceans of alphabet soup. Money laundering would no longer be necessary. The payment of taxes might become more or less voluntary. A lot of weird things would happen after that... I'm pretty comfortable with chaos, but this is not a future I greet without reservation. So, while I'm not entirely persuaded that we need to give up our future privacy to protect ourselves from drug dealers, terrorists, child molesters, and un-named military opponents (the Four Horsemen of Fear customarily invoked by our protectors), I can imagine bogeymen whose traffic I'd want visible to authority. Trouble is, the more one learns about Clipper/Skipjack, the less persuaded he is that it would do much to bring many actual Bad Guys under scrutiny. As proposed, it would be a voluntary standard, spread mainly by the market forces that would arise after the government bought a few tons of these chips for their own "sensitive but unclassified" communications systems. No one would be driven to use it by anything but convenience. In fact, no one with any brains would use it if he were trying to get away with anything. In fact, the man who claims to have designed Clipper's basic specs, Acting NIST Director Ray Kammer, recently said, "It's obvious that anyone who uses Clipper for the conduct of organized crime is dumb." No kidding. At least so long as it's voluntary. Under sober review, there mounted an incredibly long list of reasons to think Clipper/Skipjack might not be a fully-baked idea. In May, after a month of study, the Digital Privacy and Security Working Group, a coalition of some 40 companies and organizations chaired by the Electronic Frontier Foundation (EFF), sent the White House 118 extremely tough questions regarding Clipper, any five of which should have been sufficient to put the kibosh on it. The members of this group were not a bunch of hysterics. It includes DEC, Hewlett-Packard, IBM, Sun, MCI, Microsoft, Apple, and AT&T (which was also, interestingly enough, the first company to commit to putting Clipper/Skipjack in its own products). Among the more troubling of their questions: * Who would the escrow agents be? * What are Clipper's likely economic impacts, especially in regard to export of American digital products? * Why is its encryption algorithm secret and why should the public have confidence in a government-derived algorithm that can't be privately tested? * Why is Clipper/Skipjack being ram-rodded into adoption as a government standard before completion of an over-all review of U.S. policies on cryptography? * Why are the NSA, FBI, and NIST stone-walling Freedom of Information inquiries about Clipper/Skipjack? (In fact, NSA's response has been, essentially, "So? Sue us.") * Assuming Clipper/Skipjack becomes a standard, what happens if the escrow depositories are compromised? * Wouldn't these depositories also become targets of opportunity for any criminal or terrorist organization that wanted to disrupt US. law enforcement? * Since the chip transmits its serial number at the beginning of each connection, why wouldn't it render its owner's activities highly visible through traffic analysis (for which government needs no warrant)? * Why would a foreign customer buy a device that exposed his conversations to examination by the government of the United States? * Does the deployment and use of the chip possibly violate the 1st, 4th, and 5th Amendments to the U.S. Constitution? * In its discussions of Clipper/Skipjack, the government often uses the phrase "lawfully authorized electronic surveillance." What, exactly, do they mean by this? * Is it appropriate to insert classified technology into either the public communications network or into the general suite of public technology standards? And so on and so forth. As I say, it was a very long list. On July 29, John D. Podesta, Assistant to the President and White House Staff Secretary (and, interestingly enough, a former legal consultant to EFF and Co-Chair of the Digital Privacy Working Group), responded to these questions. He actually answered few of them. Still un-named, undescribed, and increasingly unimaginable were the escrow agents. Questions about the inviolability of the depositories were met with something like, "Don't worry, they'll be secure. Trust us." There seemed a lot of that in Podesta's responses. While the government had convened a panel of learned cryptologists to examine the classified Skipjack algorithm, it had failed to inspire much confidence among the crypto establishment, most of whom were still disinclined to trust anything they couldn't whack at themselves. At the least, most people felt a proper examination would take longer than the month or so the panel got. After all, it took fifteen years to find a hairline fissure in DES . But neither Podesta nor any other official explained why it had seemed necessary to use a classified military algorithm for civilian purposes. Nor were the potential economic impacts addressed. Nor were the concerns about traffic analysis laid to rest. But as Thomas Pynchon once wrote, "If they can get you asking the wrong questions, they don't have to worry about the answers." Neither asked nor answered in all of this was the one question that kept coming back to me: Was this trip really necessary? For all the debate over the details, few on either side seemed to be approaching the matter from first principles. Were the enshrined threats...drug dealers, terrorists, child molesters, and foreign enemies...sufficiently and presently imperiling to justify fundamentally compromising all future transmitted privacy? I mean...speaking personally now...it seems to me that America's greatest health risks derive from the drugs that are legal, a position the statistics overwhelmingly support. And then there's terrorism, to which we lost a total of two Americans in 1992, even with the World Trade Center bombing, only 6 in 1993. I honestly can't imagine an organized ring of child molesters, but I suppose one or two might be out there. And the last time we got into a shooting match with another nation, we beat them by a kill ratio of about 2300 to 1. Even if these are real threats, was enhanced wire-tap the best way to combat them? Apparently, it hasn't been in the past. Over the last ten years the average total nation-wide number of admissible state and federal wire-taps has numbered less than 800. Wire-tap is not at present a major enforcement tool, and is far less efficient than the informants, witnesses, physical evidence, and good old fashioned detective work they usually rely on. (It's worth noting that the World Trade Center bombing case unraveled, not through wire-taps, but with the discovery of the axle serial number on the van which held the explosives.) Despite all these questions, both unasked and unanswered, Clipper continues (at the time of this writing) to sail briskly toward standardhood, the full wind of government bearing her along. On July 30, NIST issued a request for public comments on its proposal to establish Clipper/Skipjack as a Federal Information Processing Standard (FIPS). All comments are due by September 28, and the government seems unwilling to delay the process despite the lack of an overall guiding policy on crypto. Worse, they are putting a hard sell on Clipper/Skipjack without a clue as to who might be escrow holders upon whose political acceptability the entire scheme hinges. Nor have they addressed the central question: why would a criminal use a key escrow device unless he were either very stupid...in which case he'd be easily caught anyway...or simply had no choice. All this leads me to an uncharacteristically paranoid conclusion: The Government May Mandate Key Escrow Encryption and Outlaw Other Forms. It is increasingly hard for me to imagine any other purpose for the Clipper/Skipjack operetta if not to prepare the way for the restriction of all private cryptographic uses to a key escrow system. If I were going to move the American people into a condition where they might accept restrictions on their encryption, I would first engineer the wide-spread deployment of a key escrow system on a voluntary basis, wait for some blind sheik to slip a bomb plot around it and then say, "Sorry, folks this ain't enough, it's got to be universal." Otherwise, why bother? Even its most ardent proponents admit that no intelligent criminal would trust his communications to a key escrow device. On the other hand, if nearly all encrypted traffic were Skipjack-flavored, any transmission encoded by some other algorithm would stick out like a licorice Dot. In fact, the assumption that Cyberspace will roar one day with Skipjack babble lies behind the stated reason for the secrecy for the algorithm. In their Interim Report, the Skipjack review panel puts it this way: Disclosure of the algorithm would permit the construction of devices that fail to properly implement the LEAF [or Law Enforcement Access Field], while still interoperating with legitimate SKIPJACK devices. Such devices would provide high quality cryptographic security without preserving the law enforcement access capability that distinguishes this cryptographic initiative. In other words, they don't want devices or software out there that might use the Skipjack algorithm without depositing a key with the escrow holders. (By the way, this claim is open to question. Publishing Skipjack would not necessarily endow anyone with the ability to build an interoperable chip.) Then there was the conversation I had with a highly-placed official of the National Security Council in which he mused that the French had, after all, outlawed the private use of cryptography, so it weren't as though it couldn't be done. (He didn't suggest that we should also emulate France's policy of conducting espionage on other countries' industries, though wide-spread international use of Clipper/Skipjack would certainly enhance our ability to do so.) Be that as it may, France doesn't have a Bill of Rights to violate, which it seems to me that restriction of cryptography in America would do on several counts. Mandated encryption standards would fly against the First Amendment, which surely protects the manner of our speech as clearly as it protects the content. Whole languages (most of them patois) have arisen on this planet for the purpose of making the speaker unintelligible to authority. I know of no instance where, even in the oppressive colonies where such languages were formed, that the slave-owners banned their use. Furthermore, the encryption software itself is written expression, upon which no ban may be constitutionally imposed. (What, you might ask then, about the constitutionality of restrictions on algorithm export. I'd say they're being allowed only because no one ever got around to testing from that angle.) The First Amendment also protects freedom of association. On several different occasions, most notably NAACP v. Alabama ex rel. Patterson and Talley vs. California, the courts have ruled that requiring the disclosure of either an organization's membership or the identity of an individual could lead to reprisals, thereby suppressing both association and speech. Certainly in a place like Cyberspace where everyone is so generally "visible," no truly private "assembly" can take place without some technical means of hiding the participants. It also looks to me as if the forced imposition of a key escrow system might violate the Fourth and Fifth Amendments. The Fourth Amendment prohibits secret searches. Even with a warrant, agents of the government must announce themselves before entering and may not seize property without informing the owner. Wire-taps inhabit a gray-ish area of the law in that they permit the secret "seizure" of an actual conversation by those actively eavesdropping on it. The law does not permit the subsequent secret seizure of a record of that conversation. Given the nature of electronic communications, an encryption key opens not only the phone line but the filing cabinet. Finally, the Fifth Amendment protects individuals from being forced to reveal self-incriminating evidence. While no court has ever ruled on the matter vis a vis encryption keys, there seems something involuntarily self-incriminating about being forced to give up your secrets in advance. Which is, essentially, what mandatory key escrow would require you to do. For all these protections, I keep thinking it would be nice to have a constitution like the one just adopted by our largest possible enemy, Russia. As I understand it, this document explicitly forbids governmental restrictions on the use of cryptography. For the moment, we have to take our comfort in the fact that our government...or at least the parts of it that state their intentions...avows both publicly and privately that it has no intention to impose key escrow cryptography as a mandatory standard. It would be, to use Podesta's mild word, "imprudent." But it's not Podesta or anyone else in the current White House who worries me. Despite their claims to the contrary, I'm not convinced they like Clipper any better than I do. In fact, one of them...not Podesta...called Clipper "our Bay of Pigs," referring to the ill-fated Cuban invasion cooked up by the CIA under Eisenhower and executed (badly) by a reluctant Kennedy Administration. The comparison may not be invidious. It's the people I can't see who worry me. These are the people who actually developed Clipper/Skipjack and its classified algorithm, the people who, through export controls, have kept American cryptography largely to themselves, the people who are establishing in secret what the public can or cannot employ to protect its own secrets. They are invisible and silent to all the citizens they purportedly serve save those who sit the Congressional intelligence committees. In secret, they are making for us what may be the most important choice that has ever faced American democracy, that is, whether our descendants will lead their private lives with unprecedented mobility and safety from coercion, or whether every move they make, geographic, economic, or amorous, will be visible to anyone who possesses whatever may then constitute "lawful authority." Who Are the Lawful Authorities? Over a year ago, when I first fell down the rabbit hole into Cryptoland, I wrote a Communications column called Decrypting the Puzzle Palace. In it, I advanced what I then thought a slightly paranoid thesis, suggesting that the NSA-guided embargoes on robust encryption software had been driven not by their stated justification (keeping good cryptography out of the possession of foreign military adversaries) but rather restricting its use by domestic civilians. In the course of writing that piece, I spoke to a number of officials, including former CIA Director Stansfield Turner and former NSA Director Bobby Ray Inman, who assured me that using a military organization to shape domestic policy would be "injudicious" (as Turner put it), but no one could think of any law or regulation that might specifically prohibit the NSA from serving the goals of the Department of Justice. But since then I've learned a lot about the hazy Post-Reagan/Bush lines between law enforcement and intelligence. They started redrawing the map of authority early in their administration with Executive Order 12333, issued on December 4, 1981. (Federal Register #: 46 FR 59941) This sweeping decree defines the duties and limitations of the various intelligence organizations of the United States and contains the following language: 1.4 The Intelligence Community. The agencies within the Intelligence Community shall...conduct intelligence activities necessary for the... protection of the national security of the United States, including: ... (c) Collection of information concerning, and the conduct of activities to protect against, intelligence activities directed against the United States, international terrorist and international narcotics activities, and other hostile activities directed against the United States by foreign powers, organizations, persons, and their agents; (Italics Added) Further, in Section 2.6, Assistance to Law Enforcement Authorities, agencies within the Intelligence Community are authorized to...participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers, or international terrorist or narcotics activities. In other words, the intelligence community was specifically charged with investigative responsibility for international criminal activities in the areas of drugs and terrorism. Furthermore, within certain fairly loose guidelines, intelligence organizations are "authorized to collect, retain or disseminate information concerning United States persons" that may include "incidentally obtained information that may indicate involvement in activities that may violate federal, state, local or foreign laws." Given that the NSA monitors a significant portion of all the electronic communications between the United States and other countries, the opportunities for "incidentally obtaining" information that might incriminate Americans inside America are great. Furthermore, over the course of the Reagan/Bush administration, the job of fighting the War on Some Drugs gradually spread to every element of the Executive Branch. Even the Department of Energy is now involved. At an Intelligence Community conference last winter I heard a proud speech from a DOE official in which he talked about how some of the bomb-designing supercomputers at Los Alamos had been turned to the peaceful purpose of sifting through huge piles of openly available data...newspapers, courthouse records, etc....in search of patterns that would expose drug users and traffickers. They are selling their results to a variety of "lawful authorities," ranging from the Southern Command of the U.S. Army to the Panamanian Defense Forces to various County Sheriff's Departments. "Fine," you might say, "Drug use is a epidemic that merits any cure." But I would be surprised if there's anyone who will read this sentence who has broken no laws whatever. And it's anybody's guess what evidence of other unlawful activities might be "incidentally obtained" by such a wide net as DOE is flinging. The central focus that drugs and terrorism have assumed within the intelligence agencies was underscored for me by a recent tour of the central operations room at the CIA. There, in the nerve center of American intelligence, were desks for Asia, Europe, North America, Africa and "Middle East/Terrorism," and "South America/Narcotics." These bogeymen are now the size of continents on the governmental map of peril. Given this perception of its duties, the NSA's strict opposition to the export of strong cryptographic engines, hard or soft, starts to make more sense. They are not, as I'd feared, so clue-impaired as to think their embargoes are denying any other nation access to good cryptography. (According to an internal Department of Defense analysis of crypto policy, it recently took 3 minutes and 14 seconds to locate a source code version of DES on the Internet.) Nor do they really believe these policies are enhancing national security in the traditional, military sense of the word, where the U.S. is, in any case, already absurdly over-matched to any national adversary, as was proven during the Gulf War. It's the enemies they can't bomb who have them worried, and they are certainly correct in thinking that the communications of drug traffickers and whatever few terrorists as may actually exist are more open to their perusal than would be the case in a world where even your grandmother's phone conversations were encrypted. And Clipper or no Clipper, such a world would be closer at hand if manufacturers hadn't known than any device that embodies good encryption would not be fit for export. But with Clipper/Skipjack, there is a lot that the combined forces of government will be able to do to monitor all aspects of your behavior without getting a warrant. Betweenthe monitoring capacities of the NSA, the great data-sieves of the Department of Energy, and the fact that, in use, each chip would continually broadcast the whereabouts of its owner, the government would soon be able to isolate just about every perpetrator among us. I assume you're neither a drug-user nor a terrorist, but are you ready for this? Is your nose that clean? Can it be prudent to give the government this kind of corrupting power? I don't think so, but this is what will happen if we continue to allow the secret elements of government to shape domestic policy as though the only American goals that mattered were stopping terrorism (which seems pretty well stopped already) and winning the War on Some Drugs (which no amount of force will ever completely win). Unfortunately, we are not able to discuss priorities with the people who are setting them, nor do they seem particularly amenable to any form of authority. In a recent discussion with a White House official, I asked for his help in getting the NSA to come out of its bunker and engage in direct and open discussions about crypto embargoes, key escrow, the Skipjack algorithm, and the other matters of public interest. "I'll see what we can do," he said. "But you guys are the government," I protested. "Surely they'll do as you tell them." "I'll see what we can do," he repeated, offering little optimism. That was months ago. In the meantime, the NSA has not only remained utterly unforthcoming in public discussions of crypto policy, they have unlawfully refused to comply with any Freedom of Information Act requests for documents in this area. It is time for the public to reassert control over their own government. It is time to demand that public policy be made in public by officials with names, faces, and personal accountability. When and if we are able to actually discuss crypto policy with the people who are setting it, I have a list of objectives that I hope many of you will share. There are as follows: A Policy on Cryptography 1. There should no law restricting any use of cryptography by private citizens. 2. There should be no restriction on the export of cryptographic algorithms or any other instruments of cryptography. 3. Secret agencies should not be allowed to drive public policies. 4. The taxpayer's investment in encryption technology and related mathematical research should be made available for public and scientific use. 5. The government should encourage the deployment of wide-spread encryption. 6. While key escrow systems may have purposes, none should be implemented that places the keys in the hands of government. 7. Any encryption standard to be implemented by the government should developed in an open and public fashion and should not employ a secret algorithm. And last, or perhaps, first... 8. There should be no broadening of governmental access to private communications and records unless there is a public consensus that the risks to safety outweigh the risks to liberty and will be effectively addressed by these means. If you support these principles, or even if you don't, I hope you will participate in making this a public process. And there are a number of actions you can take in that regard. The National Institute of Standards and Technology (NIST) has issued a request for public comments on its proposal to establish the "Skipjack" key-escrow system as a Federal Information Processing Standard. You've got until September 28 to tell them what you think of that. Comments on the NIST proposal should be sent to: Director, Computer Systems Laboratory ATTN: Proposed FIPS for Escrowed Encryption Standard Technology Building, Room B-154 National Institute of Standards and Technology Gaithersburg, MD 20899 If you belong to or work for an organization, you can encourage that organization to join the Digital Privacy Working Group. To do so they should contact EFF's Washington office at: Electronic Frontier Foundation 1001 G Street, NW Suite 950 East Washington, DC 20001 202/347-5400 Fax 202/393-5509 eff@eff.org I also encourage individuals interested in these issues to either join EFF, Computer Professionals for Social Responsibility, or one of the related local organizations which have sprung up around the country. For the addresses of a group in your area, contact EFF. New York City, New York Monday, September 6, 1993
