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Subject: EFF Reactions to Encryption Standards & Procedures Act (Draft)

Despite its promise of an open process, this bill is by no means a repudiation of the Clipper program, In fact, it enshrines in legislation several key aspects of the Clipper policy. However, inasmuch as the bill seeks to establish NIST authority to develop escrow encryption systems, it raises real questions about whether NIST or other agencies have any authority now to spend federal funds on escrow encryption systems.

Overview of the bill:

The bill directs the Department of Commerce, through the National Institute of Standards and Technology, to issue escrowed encryption standards. The standards issued would be subject to public comment and afford the opportunity for judicial review under the terms of the Administrative Procedures Act. Similar procedures created for the designation of government key escrow agents.

Several aspects of the Clinton Administration's approach to cryptography policy are accepted by this bill:

1. Absolute preservation of law enforcement and national security access

By this bill, any encryption standards adopted must "preserve the functional ability of the government to interpret, in a timely manner, electronic information that has been obtained pursuant to an electronic surveillance permitted by law." Sec 31(b)(2)(E).

 2. Weak privacy protection

The bill specifies that standards adopted should advance the development of the NII, but offers only qualified support for privacy. Standards should are only required to go so far as to not "diminish existing privacy rights...." Sec 31(b)(2)(D).

3. Increased role for National Security Agency in civilian privacy and security matters

The bill establishes a permanent role for the National Security Agency in the creation of privacy and security standards for use by the private sector. Currently, under the Computer Security Act, NIST is encouraged to consult with the NSA on matters of federal systems security and to draw "computer system technical security guidelines developed by the National Security Agency to the extent that the National Bureau of Standards determines that such guidelines are consistent with the requirements for protecting sensitive information in Federal computer systems." This would explicitly extend the NSA role from federal systems to systems intended for public, civilian use. As such, this is a major change in the Computer Security Act.

Issues to be addressed in draft:

To create a truly open policy process, to protect privacy, and to ensure the development of the best privacy-protecting technology possible, the bill should be augmented with the following provisions:

1. Voluntary standards

Any legislation on encryption standards must guarantee that no one will be required to use such standards, nor will use of other encryption standards be curtailed by law. Furthermore, federal encryption policy should guarantee that access to government programs, opportunities, or even the ability to communicate with the government, should never be conditioned on the use of any escrowed encryption standard. From the first announcement of the Clipper program, the Clinton Administration has assured the public that escrowed encryption would remain voluntary. This promise must be included in legislation.

2. Open design process

The draft bill does call for an open process for formation of encryption standards. Legislation should make explicit that an open process means that no classified algorithms or technologies may be included. Though there was public comment on the Escrowed Encryption FIPS (the Clipper Federal Information Processing Standard), public process in that case was meaningless because the core technology remained behind a veil of secrecy.

3. Remedies for negligence or abuse by escrow agents

As drafted, the proposal drastically limits the liability of federal escrow agents for all but "willful" abuse by federal employees. The escrow agents must also be responsible for unauthorized release of keys because of the actions of private individuals or because of negligent practices by government agents.

4. Exploration of voluntary, private sector escrow agents

Finally, if the government is going to adopt a government-based escrow system, it should also be required to explore the possibility of private party escrow systems based on open standards.

The full text of the draft bill is available from EFF's archives:

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Subject: NSA Letter to Sen. Hollings Re: Clipper Appropriations Draft Bill

8 July 1994

Honorable Ernest P. Hollings
Chairman, Subcommittee on Commerce,Justice, State and Judiciary
Committee on Appropriations
United States Senate
Washington, DC 20510-6027

Dear Senator Hollings:

We recently received a copy of a draft amendment that Senator Leahy proposed to you that would condition expenditure of appropriated funds for key escrow encryption (including the CLIPPER Chip) on satisfaction of several requirements. This language will have a major impact on the Administration's overall key escrow strategy.

We are very concerned about several aspects of the proposal. Most importantly, this language would cause significant delays (perhaps two years or more) in the introduction and use of escrowed key encryption products. With such a delay, alternative, non-escrow cryptographic products likely would become the norm in the United States and perhaps abroad as well. Widespread use of non-escrowed encryption could irretrievably damage our ability to encourage the use of key escrow encryption, putting at risk law enforcement effectiveness and critical foreign intelligence activities.

Another very significant concern is the impact of delays on major Defense Department programs to secure its information systems that process information regarding funds transfers, personnel data, medical files, logistics support, and much more. Since most of that information today is processed, transferred, and stored on unclassified and unprotected computing and telecommunications systems, it is extremely vulnerable.

The threat to these systems is real. Already, some of our systems have been penetrated. While we do not know who penetrated the systems, we believe potential threats include foreign intelligence activities, criminals, terrorists, and hackers. In addition to potential threats from external entities, network/computer attacks could also be initiated by "insiders". Network/computer protection within DoD is a fundamental military readiness issue and the need for security products is immediate.

The DoD is implementing a major program to help protect unclassified but sensitive information in the Defense Messaging System (DMS) through the use of key escrow technology. Programming has already begun on the first set of over 22,000 protection devices for this application. Key escrow products will provide privacy, authentication, and data integrity solutions for critical information system [sic]. At the same time, escrowing of keys will preserve a mechanism for law enforcement organizations to access these systems when lawfully authorized, e.g., in connection with investigations of possible fraud. Delays in the process could have sever, negative consequences for DMS.

In summary, key escrow encryption technology is vital to the Defense Department's operational readiness and its ability to conduct day-to-day activities, and we cannot afford to delay implementation of these critical security products.

I recognize that you may have other questions and we are prepared to meet with you at your convenience on this matter. I have sent a similar letter to Senator Domenici.

/s/ J.M. McConnell
Vice Admiral, U.S. Navy
Director, NSA

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Subject: Interoperability Demo - ISDN and Internet PPP

GAITHERSBURG, MD, JUNE 24, 1994 -- Today at the NIUF, seven ISDN equipment vendors demonstrated interoperable local and wide area network connectivity using Point-to-Point Protocol (PPP) over ISDN.

This crucial step opens the way to grand-scale interoperability of ISDN LAN connection equipment. "National ISDN 1 and 2 worked on standardized connectivity at the circuit level, but that wasn't enough. Users need applications to launch connections, and remote LAN access applications are standardizing around PPP. This interoperability demonstration puts these vendors ahead of other ISDN vendors, who better get with it or get left out" (according to Jay Batson, Senior Analyst with Network Strategy Service at Forrester Research).

Seven leading US, Canadian and European vendors demonstrated interoperable ISDN remote access to LANs:

Vendors and end-users accessed Internet, read their e-mail, and sent files back home as part of the demonstration.

"For the first time, telecommuters and branch office users can choose the equipment that they prefer. Everyone can get their equipment from different vendors, but it all works together", said Jake Jacobson, Manager of Advanced Communication Laboratories at JPL.

Using Basic Rate ISDN lines and LAN attachments provided by the US National Institute for Standards and Technology (NIST), vendors interconnected their devices and attached to local and remote LANs. As part of the demonstration, vendors and end users accessed Internet, read their e-mail, and sent files back home. End users and vendors alike agreed that this will greatly promote rapid expansion of telecommuting, remote Internet access, branch office connectivity, and other useful applications.

"The European ISDN Users Forum has also sanctioned PPP as the official interoperability standard" said Rick Kuhlbars of netCS, Berlin, Germany

PPP is a set of protocols recommended by the Internet Engineering Task Force (IETF) that allows LAN connection equipment to negotiate which features and protocols will be supported by both ends of a connection. PPP is rapidly becoming a standard for LAN connections since it allows dissimilar products to quickly negotiate which features will be selected for a particular connection.

Some reactions:

"Global trade requirements and business relationships compel us to interoperate using these kinds of standards based procedures."
- Stan Kluz, Lawrence Livermore National Laboratory

"This allows us to have students, faculty and staff select a wider array of equipment and maintain interoperability with both Ameritech's switches as well as the University's emerging ISDN dial in pools."
- Dory Leifer, University of Michigan.

"For the first time, users now have ISDN networking plug and play. Vendors' network products which support these specifications assure that they can access networks without concern as to what ISDN networking equipment is in use on the network end."
- Jeff Fritz, West Virginia University, Chairman of the Enterprise Network Data Interconnectivity Family (ENDIF), a working group of NIUF.

NIUF - the North American ISDN User's Forum is an association of ISDN vendors, users, and service providers working together to promote and improve the use of ISDN in North America.

Contacts for additional information:

Reggie Best, AccessWorks Communications Inc., (800) 248-8204, rbest@accessworks.com
Kevin Dickson, Cisco Systems, (415) 326- 1941kdickson@cisco.com
Bob Downs, ENDIF liaison to IETF, Combinet, (408) 522-9020 bdowns@combinet.com
Jeff Fritz, ENDIF Chairman, West Virginia Univ., (304) 293-2060 jfritz@wvnvm.wvnet.edu
Douglas Frosst, Gandalf, Ontario, Canada, (613) 723-6500 dfrosst@gandalf.ca
Rick Kuhlbars, netCS, Berlin, Germany, 49.30/856 999-0 rick@netcs.com.
Randy Sisto, Network Express, (313) 761-5005, rsisto@nei.com
Julie Thomtez, DigiBoard, (612) 943-9020 juliet@digibd.com
IBM, IBM ISDN Information, (919) 254-ISDN.

Respectfully Submitted,
Gerry Hopkins, ENDIF ViceChair acting for the Secretary

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Subject : EFF Congratulates Rep Markey on Passage of Open Platform Bill HR3636

After the votes, the bills were ordered to be combined into one bill, which will be sent to the Senate. The Senate is currently considering its own similar legislation.

Electronic Frontier Foundation praises passage of House Telecommunications Bill (HR 3636), in combination with the Antitrust Reform Act (HR 3626).

Key provisions of the bill will provide affordable access to multimedia network services for the American public

The Electronic Frontier Foundation (EFF) is pleased that the US House of Representatives has passed major telecommunications legislation, and commends all who have worked on the bill, especially Chairman Ed Markey (D-MA). Key provisions of the legislation ensure that Open Platform service will be made widely available to all Americans, as the first step in the development of an interactive, multimedia information infrastructure.

"Under the Open Platform services sections, the Federal Communications Commission is required to issue regulations which make switched, digital telecommunications service available and affordable for the American public in the near term," explained Daniel J. Weitzner, Deputy Policy Director of EFF. Many of the multimedia services that will help increase educational opportunity in our schools, provide access to library resources, enable distance learning, and support telecommuting, can be delivered over network services that are available today. Yet, telecommunications carriers have been slow in offering these services to the public. While an interactive broadband network should be our long term policy goal, there is no reason to wait for broadband to reap the benefits of digital technologies such as ISDN available in the network today.

"Guided by Congress, FCC action to cause deployment and tariffing of Open Platform services will dramatically enhance American's access to multimedia information sources, " said Weitzner.

Mitchell Kapor, Chairman of the Board of the Foundation, praised the efforts of Chairman Markey (D-MA) and said that an information infrastructure "built based on Open Platform principles will be a vibrant web of communications and information that enhance free speech and democratic discourse. Open architecture will also enable the NII to be the site of innovation, economic growth, and job creation."

HR 3636 recognizes that advanced telecommunications services are becoming more important for individuals and public institutions and that the definition of universal service should evolve over time to ensure affordable access to such advanced services for all Americans. The bill provides that Open Platform service should be considered as the next step in the evolution of universal service. We can hope that in many circumstances a more competitive market will provide high quality access at low prices for many parts of the country. A flexible definition of universal service will help ensure that where the market fails to provide minimum acceptable levels of service, careful tailored regulation will help fill the void.

For all of these reasons, the Open Platform sections have been enthusiastically supported by a diverse coalition of public interest groups and key players in the computer and communications industries. "The job of ensuring openness and access to the NII is only just beginning, but the Open Platform services that made possible by the bill take a decisive first step in the right direction," said Weitzner.

Contacts:

Jerry Berman, Executive Director,
jberman@eff.org

Daniel J. Weitzner, Deputy Policy Director,
djw@eff.org
Telephone: v: 202-347-5400 f: 202-393-5509

June 28, 1994

Hon. Edward Markey, Chairman
House Telecommunications & Finance Subcommittee
316 Ford House Office Building
Washington, DC 20150

Dear Chairman Markey,

We want to congratulate you and Representative Fields on the passage of HR 3636 and to thank you for efforts and foresight in support of the Open Platform sections of the bill. Built based on Open Platform principles, the NII will be a vibrant web of communications and information that enhance free speech and democratic discourse. Such an open environment will also enable the NII to be the site of innovation, economic growth, and job creation.

Under the Open Platform services sections, the Federal Communications Commission is required to issue regulations which make switched, digital telecommunications service available and affordable for the American public in the near term. As you know, many of the multimedia services that will help increase educational opportunity in our schools, provide access to library resources, enable distance learning, and support telecommuting, can be delivered over network services that are available today. Yet, telecommunications carriers have been slow in offering these services to the public. While an interactive broadband network should be our long term policy goal, there is no reason to wait for broadband to reap the benefits of digital technologies such as ISDN available in the network today. Guided by Congress, FCC action to cause deployment and tariffing of Open Platform services will dramatically enhance American's access to multimedia information sources. Widely available Open Platform services will also help jump start that multimedia information and communications market place.

HR 3636 recognizes that advanced telecommunications services are becoming more important for individuals and public institutions and that the definition of universal service should evolve over time to ensure affordable access to such advanced services for all Americans. The bill, thus, provides that Open Platform service should be considered as the next step in the evolution of universal service. We can hope that in many circumstances a more competitive market will provide high quality access at low prices for many parts of the country. Your work in creating a flexible definition of universal service will help ensure that where the market fails to provide minimum acceptable levels of service, careful tailored regulation will help fill the void.

For all of these reasons, the Open Platform sections have been enthusiastically supported by a diverse coalition of public interest groups and key players in the computer and communications industries. The job of ensuring openness and access to the NII is only just beginning, but the Open Platform services that you have made possible take a decisive first step in the right direction. Again, we commend you and your colleagues for supporting the Open Platform services sections and promise to continue to work with you to ensure enactment of comprehensive telecommunications legislation with strong Open Platform provisions this year.

Sincerely,

Jerry Berman
Executive Director

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Subject: US ACM Calls for Clipper Withdrawal, Releases Crypto Policy Report

U S A C M
Association for Computing Machinery, U.S. Public Policy Committee PRESS RELEASE

Thursday, June 30, 1994

Contact:
Barbara Simons(408) 463-5661, simons@acm.org
Jim Horning (415) 853-2216, horning@src.dec.com
Rob Kling(714) 856-5955, kling@ics.uci.edu

COMPUTER POLICY COMMITTEE CALLS FOR WITHDRAWAL OF CLIPPER

COMMUNICATIONS PRIVACY "TOO IMPORTANT" FOR SECRET DECISION- MAKING

WASHINGTON, DC The public policy arm of the oldest and largest international computing society today urged the White House to withdraw the controversial "Clipper Chip" encryption proposal. Noting that the "security and privacy of electronic communications are vital to the development of national and international information infrastructures," the Association for Computing Machinery's U.S. Public Policy Committee (USACM) added its voice to the growing debate over encryption and privacy policy.

In a position statement released at a press conference on Capitol Hill, the USACM said that "communications security is too important to be left to secret processes and classified algorithms." The Clipper technology was developed by the National Security Agency, which classified the cryptographic algorithm that underlies the encryption device. The USACM believes that Clipper "will put U.S. manufacturers at a disadvantage in the global market and will adversely affect technological development within the United States." The technology has been championed by the Federal Bureau of Investigation and the NSA, which claim that "non-escrowed" encryption technology threatens law enforcement and national security.

"As a body concerned with the development of government technology policy, USACM is troubled by the process that gave rise to the Clipper initiative," said Dr. Barbara Simons, a computer scientist with IBM who chairs the USACM. "It is vitally important that privacy protections for our communications networks be developed openly and with full public participation."

The USACM position statement was issued after completion of a comprehensive study of cryptography policy sponsored by the ACM (see companion release). The study, "Codes, Keys and Conflicts: Issues in U.S Crypto Policy," was prepared by a panel of experts representing various constituencies involved in the debate over encryption.

The ACM, founded in 1947, is a 85,000 member non-profit educational and scientific society dedicated to the development and use of information technology, and to addressing the impact of that technology on the world's major social challenges. USACM was created by ACM to provide a means for presenting and discussing technological issues to and with U.S. policymakers and the general public.

For further information on USACM, please call (202) 298-0842.

USACM Position on the Escrowed Encryption Standard

The ACM study "Codes, Keys and Conflicts: Issues in U.S Crypto Policy" sets forth the complex technical and social issues underlying the current debate over widespread use of encryption. The importance of encryption, and the need for appropriate policies, will increase as networked communication grows. Security and privacy of electronic communications are vital to the development of national and international information infrastructures.

The Clipper Chip, or "Escrowed Encryption Standard" (EES) Initiative, raises fundamental policy issues that must be fully addressed and publicly debated. After reviewing the ACM study, which provides a balanced discussion of the issues, the U.S. Public Policy Committee of ACM (USACM) makes the following recommendations.

1. The USACM supports the development of public policies and technical standards for communications security in open forums in which all stakeholders -- government, industry, and the public -- participate. Because we are moving rapidly to open networks, a prerequisite for the success of those networks must be standards for which there is widespread consensus, including international acceptance. The USACM believes that communications security is too important to be left to secret processes and classified algorithms. We support the principles underlying the Computer Security Act of 1987, in which Congress expressed its preference for the development of open and unclassified security standards.

2. The USACM recommends that any encryption standard adopted by the U.S. government not place U.S. manufacturers at a disadvantage in the global market or adversely affect technological development within the United States. Few other nations are likely to adopt a standard that includes a classified algorithm and keys escrowed with the U.S. government.

3. The USACM supports changes in the process of developing Federal Information Processing Standards (FIPS) employed by the National Institute of Standards and Technology. This process is currently predicated on the use of such standards solely to support Federal procurement. Increasingly, the standards set through the FIPS process directly affect non-federal organizations and the public at large. In the case of the EES, the vast majority of comments solicited by NIST opposed the standard, but were openly ignored. The USACM recommends that the standards process be placed under the Administrative Procedures Act so that citizens may have the same opportunity to challenge government actions in the area of information processing standards as they do in other important aspects of Federal agency policy making.

4. The USACM urges the Administration at this point to withdraw the Clipper Chip proposal and to begin an open and public review of encryption policy. The escrowed encryption initiative raises vital issues of privacy, law enforcement, competitiveness and scientific innovation that must be openly discussed.

5. The USACM reaffirms its support for privacy protection and urges the administration to encourage the development of technologies and institutional practices that will provide real privacy for future users of the National Information Infrastructure.

Association for Computing Machinery
PRESS RELEASE

Thursday, June 30, 1994

Contact:
Joseph DeBlasi, ACM Executive Director (212) 869-7440
Dr. Stephen Kent, Panel Chair (617) 873-3988
Dr. Susan Landau, Panel Staff (413) 545-0263

COMPUTING SOCIETY RELEASES REPORT ON ENCRYPTION POLICY

CLIPPER CHIP" CONTROVERSY EXPLORED BY EXPERT PANEL

WASHINGTON, DC A panel of experts convened by the nation's foremost computing society today released a comprehensive report on U.S. cryptography policy. The report, "Codes, Keys and Conflicts: Issues in U.S Crypto Policy," is the culmination of a ten-month review conducted by the panel of representatives of the computer industry and academia, government officials, and attorneys. The 50-page document explores the complex technical and social issues underlying the current debate over the Clipper Chip and the export control of information security technology.

"With the development of the information superhighway, cryptography has become a hotly debated policy issue," according to Joseph DeBlasi, Executive Director of the Association for Computing Machinery (ACM), which convened the expert panel. "The ACM believes that this report is a significant contribution to the ongoing debate on the Clipper Chip and encryption policy. It cuts through the rhetoric and lays out the facts."

Dr. Stephen Kent, Chief Scientist for Security Technology with the firm of Bolt Beranek and Newman, said that he was pleased with the final report. "It provides a very balanced discussion of many of the issues that surround the debate on crypto policy, and we hope that it will serve as a foundation for further public debate on this topic."

The ACM report addresses the competing interests of the various stakeholders in the encryption debate -- law enforcement agencies, the intelligence community, industry and users of communications services. It reviews the recent history of U.S. cryptography policy and identifies key questions that policymakers must resolve as they grapple with this controversial issue.

The ACM cryptography panel was chaired by Dr. Stephen Kent. Dr. Susan Landau, Research Associate Professor in Computer Science at the University of Massachusetts, co-ordinated the work of the panel and did most of the writing. Other panel members were Dr. Clinton Brooks, Advisor to the Director, National Security Agency; Scott Charney, Chief of the Computer Crime Unit, Criminal Division, U.S. Department of Justice; Dr. Dorothy Denning, Computer Science Chair, Georgetown University; Dr. Whitfield Diffie, Distinguished Engineer, Sun Microsystems; Dr. Anthony Lauck, Corporate Consulting Engineer, Digital Equipment Corporation; Douglas Miller, Government Affairs Manager, Software Publishers Association; Dr. Peter Neumann, Principal Scientist, SRI International; and David Sobel, Legal Counsel, Electronic Privacy Information Center. Funding for the cryptography study was provided in part by the National Science Foundation.

The ACM, founded in 1947, is a 85,000 member non-profit educational and scientific society dedicated to the development and use of information technology, and to addressing the impact of that technology on the world's major social challenges. For general information, contact ACM, 1515 Broadway, New York, NY 10036. (212) 869-7440 (tel), (212) 869-0481 (fax).

Information on accessing the report electronically will be posted soon on Usenet.

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Subject: IITF Intellectual Property Draft Report - Request for Comments

Comments may be sent electronically to nii-ip@uspto.gov; the deadline for comments is September 7, 1994

.

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Subject: New Faces at EFF: Robin Abner (Membership), Darby Costello (Finance)

She is partial to cats and has two Burmese, Juan and Flor, who share their Kalorama apartment with Darby. She is devoted to the arts (opera in particular) and actively involved with a newly-formed local opera company. Ms. Costello is a rabid, nearly indiscriminate, reader.

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Subject: What YOU Can Do

"The net poses a fundamental threat not only to the authority of the government, but to all authority, because it permits people to organize, think, and influence one another without any institutional supervision whatsoever. The government is responding to this threat with the Clipper Chip."
- John Seabrook, "My First Flame", New Yorker 06/06/94

Who will decide how much privacy is "enough"?

The Electronic Frontier Foundation believes that individuals should be able to ensure the privacy of their personal communications through any technological means they choose. However, the government's current restrictions on the export of encrytion software have stifled the development and commercial availability of strong encryption in the U.S. Now, more than ever, EFF is working to make sure that you are the one that makes these decisions for yourself. Our members are making themselves heard on the whole range of issues. EFF collected over 5000 letters of support for Rep. Maria Cantwell's bill to liberalize restrictions on cryptography. We also gathered over 1400 letters supporting Sen. Leahy's open hearings on the proposed Clipper encryption scheme, which were held in May 1994. And EFF collected over 90% of the public comments that were submitted to NIST regarding whether or not Clipper should be made a federal standard.

You KNOW privacy is important. You have probably participated in our online campaigns. Have you become a member of EFF yet? The best way to protect your online rights is to be fully informed and to make your opinions heard. EFF members are informed and are making a difference. Join EFF today!

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