Review of Cryptography Policy 1993

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From: Dave Banisar <Banisar@washofc.cpsr.org>
Subject: CPSR NIST Crypto Statement
Message-ID: <1993Jun3.061847.702@mont.cs.missouri.edu>
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                    Department of Commerce
        National Institute of Standards and Technology

      Computer System Security and Privacy Advisory Board

                Review of Cryptography Policy
                          June 1993

             Statement of CPSR Washington office
                  Marc Rotenberg, director
                (rotenberg@washofc.cpsr.org)
               with David Sobel, legal counsel,
                 Dave Banisar, policy analyst


     Mr. Chairman, members of the Advisory Panel, thank you for the
opportunity to speak today about emerging issues on cryptography
policy.

     My name is Marc Rotenberg and I am director of the CPSR
Washington office.  Although CPSR does not represent any computer
firm or industry trade association, we speak for many in the
computer profession who value privacy and are concerned about the
government's Clipper proposal.

     During the last several years CPSR has organized several meetings
to promote public discussion of cryptography issues.  We have also
obtained important government documents through the Freedom of
Information Act.  We believe that good policies will only result if the
public, the profession, and the policy makers are fully informed
about the significance of these recent proposals.

     We are pleased that the Advisory Board has organized hearings.
This review of cryptography policy will help determine if the Clipper
proposal is in the best interests of the country.  We believe that a
careful review of the relevant laws and policies shows that the key
escrow arrangement is at odds with the public interest, and that
therefore the Clipper proposal should not go forward.

     Today I will address issues 1 through 3 identified in the NIST
announcement, specifically the policy requirements of the Computer
Security Act, the legal issues surrounding the key escrow
arrangement, and the importance of privacy for network
development.


1. CRYPTOGRAPHY POLICY

     The first issue concerns the 1987 statute enacted to improve
computer security in the federal government, to clarify the
responsibilities of NIST and NSA, and to ensure that technical
standards would serve civilian and commercial needs.  The Computer
Security Act, which also established this Advisory Panel, is the true
cornerstone of cryptography policy in the United States.  That law
made clear that in the area of unclassified computing systems, the
Department of Commerce and not the Department of Defense, would
be responsible for the development of technical standards.  It
emphasized public accountability and stressed open decision-making.

     The Computer Security Act grew out of a concern that classified
standards and secret meetings would not serve the interests of the
general public.  As the practical applications for cryptography have
moved from the military and intelligence arenas to the commercial
sphere, this point has become clear.  There is also clearly a conflict of
interest when an agency tasked with signal interception is also given
authority to develop standards for network security.

     In the spirit of the Computer Security Act, NIST set out in 1989 to
develop a public key standard FIPS.  In a memo dated May 5, 1989
and obtained by CPSR through the Freedom of Information Act, NIST
said that it planned:

         to develop the necessary public-key based security
         standards.  We require a public-key algorithm for
         calculating digital signatures and we also require a
         public-key algorithm for distributing secret keys.

NIST then went on to define the requirements of the standard:

         The algorithms that we use must be public, unclassified,
         implementable in both hardware or software, usable by
         federal Agencies and U.S. based multi-national
         corporation, and must provide a level of security
         sufficient for the protection of unclassified, sensitive
         information and commercial propriety and/or valuable
         information.

     The Clipper proposal and the full-blown Capstone configuration,
which incorporates the key management function NIST set out to
develop in 1989, is very different from the one originally conceived
by NIST.

         %  The Clipper algorithm, Skipjack, is classified,

         %  Public access to the reasons underlying the proposal is
            restricted,

         %  Skipjack can be implemented only in tamper-proof
            hardware,

         %  It is unlikely to be used by multi-national corporations,
            and

         %  Its security remains unproven.

     The Clipper proposal undermines the central purpose of the
Computer Security Act.  Although intended for broad use in
commercial networks, it was not developed at the request of either
U.S. business or the general public.  It does not reflect public goals.
Rather it reflects the interests of one secret agency with the
authority to conduct foreign signal intelligence and another
government agency  responsible for law enforcement investigations.

     It is our belief that the Clipper proposal clearly violates the
intent
of the Computer Security Act of 1987.
What is the significance of this?  It is conceivable that an expert
panel of cryptographers will review the Skipjack algorithm and find
that it lives up its billing, that there is no "trap door" and no easy
way to reverse-engineer.  In fact, the White House has proposed just
such a review process

     But is this process adequate?  Is this the procedure the Advisory
Board would endorse for the development of widespread technical
standards?  The expert participants will probably not be permitted
to publish their assessments of the proposal in scientific journals,
further review of the standard will be restricted, and those who are
skeptical will remain in the dark about the actual design of the chip.
This may be an appropriate process for certain military systems, but
it is clearly inappropriate for a technical standard that the
government believes should be widely incorporated into the
communications infrastructure.

     Good government policy requires that certain process goals be
satisfied.  Decisions should be made in the open.  The interests of the
participating agencies should be clear.  Agencies should be
accountable for their actions and recommendations.  Black boxes and
government oversight are not compatible.

     There is an even greater obligation to promote open decisions
where technical and scientific issues are at stake.  Innovation
depends on openness.  The scientific method depends on the ability
of researchers to "kick the tires" and "test drive" the product.  And,
then, even if it is a fairly good design, additional testing encourages
the development of new features, improved performance and
reduced cost.  Government secrecy is incompatible which such a
development process.

     Many of these principles are incorporated into the Computer
Security Act and the Freedom of Information Act.  The current
government policy on the development of unclassified technical
standards, as set out in the Computer Security Act, is a very good
policy.  It emphasizes public applications, stresses open review, and
ensures public accountability.  It is not the policy that is flawed.  It
is
the Clipper proposal.

     To accept the Clipper proposal would be to endorse a process that
ran contrary to the law, that discourages innovation, and that
undermines openness.


2. LEGAL AND CONSTITUTIONAL ISSUES

     There are several legal and constitutional issues raised by the
government's key escrow proposal.

     The premise of the Clipper key escrow arrangement is that the
government must have the ability to intercept electronic
communications, regardless of the economic or societal costs.  The
FBI's Digital Telephony proposal, and the earlier Senate bill 266, was
based on the same assumption.

     There are a number of arguments made in defense of this
position: that privacy rights and law enforcement needs must be
balanced, or that the government will be unable to conduct criminal
investigations without this capability.

     Regardless of how one views these various claims, there is one
point about the law that should be made very clear: currently there
is no legal basis -- in statute, the Constitution or anywhere else --
that supports the premise which underlies the Clipper proposal.  As
the law currently stands, surveillance is not a design goal.  General
Motors would have a stronger legal basis for building cars that could
not go faster than 65 miles per hour than AT&T does in marketing a
commercial telephone that has a built-in wiretap capability.  In law
there is simply nothing about the use of a telephone that is
inherently illegal or suspect.

     The federal wiretap statute says only that communication service
providers must assist law enforcement in the execution of a lawful
warrant.  It does not say that anyone is obligated to design systems
to facilitate future wire surveillance.  That distinction is the
difference between countries that restrict wire surveillance to
narrow circumstances defined in law and those that treat all users of
the telephone network as potential criminals.  U.S. law takes the first
approach.  Countries such as the former East Germany took the
second approach.  The use of the phone system by citizens was
considered inherently suspect and for that reason more than 10,000
people were employed by the East German government to listen in
on telephone calls.

     It is precisely because the wiretap statute does not contain the
obligation to incorporate surveillance capability -- the design
premise of the Clipper proposal -- that the Federal Bureau of
Investigation introduced the Digital Telephony legislation.  But that
legislation has not moved forward on Capitol Hill and the law has
remained unchanged.  The Clipper proposal attempts to accomplish
through the standard-setting and procurement process what the
Congress has been unwilling to do through the legislative process.

     On legal grounds, adopting the Clipper would be a mistake.  There
is an important policy goal underlying the wiretap law.  The Fourth
Amendment and the federal wiretap statute do not so much balance
competing interests as they erect barriers against government excess
and define the proper scope of criminal investigation.  The purpose
of the federal wiretap law is to restrict the government, it is not to
coerce the public.

     Therefore, if the government endorses the Clipper proposal, it will
undermine the basic philosophy of the federal wiretap law and the
fundamental values embodied in the Constitution.  It will establish a
technical mechanism for signal interception based on a premise that
has no legal foundation.  I am not speaking rhetorically about "Big
Brother."  My point is simply that the assumption underlying the
Clipper proposal is more compatible with the practice of telephone
surveillance in the former East Germany than it is with the narrowly
limited circumstances that wire surveillance has been allowed in the
United States.

     There are a number of other legal issues that have not been
adequately considered by the proponents of the key escrow
arrangement that the Advisory Board should examine.  First, not all
lawful wiretaps follow a normal warrant process.  It is critical that
the proponents of Clipper make very clear how emergency wiretaps
will be conducted before the proposal goes forward.  Second, there
may be civil liability issues for the escrow agents if there is abuse or
compromise of the keys.  Escrow agents may be liable for any harm
that results.  Third, there is a Fifth Amendment dimension to the
proposed escrow key arrangement if a network user is compelled to
disclose his or her key to the government in order to access a
communications network. Each one of these issues should be
examined.

     There is also one legislative change that we would like the
Advisory Board to consider.  During our FOIA litigation, the NSA cited
a 1951 law to withhold certain documents that were critical to
understand the development of the Digital Signature Standard.  The
law, passed  grants the government the right restrict the disclosure
of any classified information pertaining to cryptography.  While the
government may properly withhold classified information in FOIA
cases, the practical impact of this particular provision is to provide
another means to insulate cryptographic policy from public review.

     Given the importance of public review of cryptography policy, the
requirement of the Computer Security Act, and the Advisory Board's
own commitment to an open, public process, we ask the Advisory
Board to recommend to the President and to the Congress that
section 798 be repealed or substantially revised to reflect current
circumstances.

     This is the one area of national cryptography policy where we
believe a change is necessary.


3. INDIVIDUAL PRIVACY

     Communications privacy remains a critical test for network
development.  Networks that do not provide a high degree of privacy
are clearly less useful to network users.  Given the choice between a
cryptography product without a key escrow and one with a key
escrow, it would be difficult to find a user who would prefer the key
escrow requirement.  If this proposal does go forward, it will not be
because network users or commercial service providers favored it.

     Many governments are now facing questions about restrictions on
cryptography similar to the question now being raised in this
country.  It is clear that governments may choose to favor the
interests of consumers and businesses over law enforcement.  Less
than a month ago, the government of Australia over-rode the
objections of law enforcement and intelligence agencies and allowed
the Australian telephone companies to go forward with new digital
mobile phone networks, GSM, using the A5 robust algorithm.   Other
countries will soon face similar decisions.  We hope that they will
follow a similar path

     To briefly summarize, the problem here is not the existing law on
computer security or policies on cryptography and wire surveillance.
The Computer Security Act stresses public standards, open review,
and commercial applications.  The federal wiretap statute is one of
the best privacy laws in the world.  With the exception of one
provision in the criminal code left over from the Cold War, our
current cryptography policy is very good.  It reflects many of the
values -- individual liberty, openness, government accountability --
that are crucial for democratic societies to function.

     The problem is the Clipper proposal.  It is an end-run around
policies intended to restrict government surveillance and to ensure
agency accountability.  It is an effort to put in place a technical
configuration that is at odds with the federal wiretap law and the
protection of individual privacy.  It is for these reasons that we ask
the Advisory Board to recommend to the Secretary of Commerce, the
White House, and the Congress that the current Clipper proposal not
go forward.

     I thank you for the opportunity to speak with you about these
issues.  I wish to invite the members of the Advisory Committee to
the third annual CPSR Privacy and Cryptography conference that will
be held Monday, June 7 in Washington, DC at the Carnegie
Endowment for International Peace.  That meeting will provide an
opportunity for further discussion about cryptography policy.


ATTACHMENTS

"TWG Issue Number: NIST - May 5, 1989," document obtained
by CPSR as a result of litigation under the Freedom of
Information Act.

"U.S. as Big Brother of Computer Age," The New York Times,
May 6, 1993, at D1.

"Keeping Fewer Secrets," Issues in Science and Technology, vol.
IX, no. 1 (Fall 1992)

"The Only Locksmith in Town," The Index on Censorship
(January 1990)

[The republication of these articles for the non-commercial purpose
of informing the government about public policy is protected by
section 107 of the Copyright Act of 1976]

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