POINT "This proposal is a bad idea, born out of an outdated mentality
that the intelligence agencies know what is best for the U.S. public and
that those agencies' asserted needs for surveillance are more important
than everyone else's need for privacy and security."
by David Banisar
In 1993, the National Security Agency (NSA) introduced a fingernail-size
chip called the Clipper Chip. The Clipper is designed to be installed
into telephones, fax machines, and computers. It scrambles
communications to prevent eavesdropping, with one catch: the government
gets to keep the keys so that it can listen in.
This proposal is a bad idea, born out of an outdated mentality that the
intelligence agencies know what is best for the U.S. public and that
those agencies' asserted needs for surveillance are more important than
everyone else's need for privacy and security. The proposal threatens
personal privacy and the security of communications networks. It
reverses the usual presumptions of open standards and peer review.
Finally, it is likely that the proposal won't even work because there
are numerous ways of avoiding it.
The Clipper Chip turns the usual purpose of the telephone on its head by
making surveillance a primary requirement of all communications systems.
Every person must trust that the NSA, intelligence agency in charge of
worldwide surveillance, and the Department of Justice, together with its
prosecutors and agents engaged in the "often competitive business of law
enforcement," will not abuse that power.
This shift is simply not supported by the U.S. Constitution. Under the
Fourth Amendment, the police can conduct a search after they present
probable cause to a judge that a crime is being committed. The amendment
does not require that all persons leave a copy of their house keys at
the police station before any crime is suspected. Under the
constitution, personal privacy is not entrusted to the police or
military and then doled back to the public by a balance determined in
back rooms.
In any event, the key escrow mechanism does not provide any real
insurance that it will prevent government abuse. The key escrow
procedures exempt any legal repercussions for their violations with the
following disclaimer: "These procedures do not create, and are not
intended to create, any substantive rights for individuals intercepted
through electronic surveillance, and noncompliance with these procedures
shall not provide the basis for any motion to suppress or other
objection to the introduction of electronic surveillance evidence
lawfully acquired."
A second problem is that the Clipper proposal reverses the usual
presumption of open-standards settings. For the first time, a government
standard for security of public computer systems is classified. Public
and open processes are important so that the standard will reflect the
needs of the community that must adopt it. Even though the standard is
intended to be used by private business and the general public, the NSA
designed the standard in secret to satisfy only its surveillance needs.
No outside parties were consulted or informed until after the proposal
was fully designed and purchases had already begun. When the public was
finally given a chance to comment, it uniformly rejected it. Yet, it was
adopted anyway.
Even though the Clipper's proponents claim it is voluntary and anyone
who does not want to use it will not have to, the NSA is trying to
strong-arm manufacturers into adopting it. The NSA has also maintained
export controls on non-Clipper products, and it plans to withdraw the
current Data Encryption Standard as an official government standard in
1998, leaving only Clipper as the standard for government agencies and
those who must communicate with them.
Finally, it is unlikely that the Clipper Chip proposal will have any
real benefits for law enforcement if it is widely used. Because the
system is voluntary, anybody can use a different encryption system
altogether and it seems quite likely that most people will. It is also
possible to encrypt a message with one of the many other commercially
available programs before or after you encrypt it with the Clipper Chip.
Even the law enforcement access provisions may not work well. Recently,
a Bell Labs researcher discovered a way of modifying messages encrypted
with the Clipper so as to prevent law enforcement from decrypting the
messages.
In conclusion, the Clipper Chip is a terrible idea born out of the Cold
War mentality of the intelligence community. Justice Brandeis once said,
"Sunshine is the best disinfectant." It's time to pull back the curtains
on this proposal.
COUNTERPOINT "Key to understanding the current debate . . . is the plain
fact that Congress has already considered the issues and struck a sound,
workable balance."
by Ken Robinson
Obviously there is some tension between individual rights to privacy--
what Justice Harlan in 1967 denominated the "reasonable expectation of
privacy" (see Katz v. United States, 389 U.S. 347, 360, 1967; Harlan,
J., concurring)--and government's legitimate interest in continued
access to electronic communications as needed to enforce criminal laws.
This is hardly a new issue, however.
Several times since 1968, Congress has considered the topic and has
established a sound and reasonable balance. Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 (18 USC Sec. 2510 et seq.)
and related statutes do several things: first, they provide that law
enforcement officials can have access to electronic communications under
certain narrowly defined circumstances, and, second, they establish an
array of rigorous procedural, judicial, and other safeguards. The
question today, therefore, is whether that sound and workable,
congressionally established balance should be maintained or whether it
should be allowed to erode as advances in digital communications render
old practices and assumptions obsolete.
The choices that American legislators face are no different from those
that French, British, German, Australian, and Japanese legislators have
confronted and resolved in favor of continued law enforcement access to
electronic communications--again, under narrowly defined circumstances
and subject to abundant safeguards. All those countries also have both a
firm, established tradition of individual rights and freedoms and a
strong national desire to safeguard their societies and countries.
Those who advocate allowing technological advances to undermine that
long-standing congressional balancing of interests should understand
what the logical consequences of such fundamentally irresponsible action
would be.
Criminals today make efficient and effective use of the most modern
communications and computer technologies. In doing so, they are no
different from other elements of business and society that also seek to
harness and exploit the latest technology. However, if our advancing
technology is to be allowed to work as a repealer of law enforcement
access procedures, then that in turn will inevitably benefit and
facilitate unlawful, criminal behavior. The effectiveness of other law
enforcement measures will be markedly reduced. In the end, ours will be
an even more dangerous and, unfortunately, more lawless society.
Similarly, while certain categories of armed conflict are less likely
today, others--most notably international terrorism--are increasingly
prevalent. Terrorists, like criminals, also have ready access to the
most modern and advanced communications and computer technologies. Like
others, terrorists want freedom to exploit those advances in order to
facilitate their objectives. Permit technology gradually to rescind the
narrowly circumscribed right of access that national security and law
enforcement officials have enjoyed, therefore, and the result,
inevitably, will be to accord terrorists greater latitude. Episodes such
as the World Trade Center bombing will become more common. In the end,
ours will, again, become an even more dangerous, lawless society.
The right to be left alone should continue to be highly valued and
protected. Individual rights and freedoms are central to the American
legal system. The individual and collective right to be free from
criminal acts, or from acts of terrorism, however, is an important right
as well. Key to understanding the current debate surrounding the Clipper
Chip, digital telephony, and the like, moreover, is the plain fact that
Congress has already considered the issues and struck a sound, workable
balance. Hence, the question now becomes whether government and industry
are prepared to blink at reality, pretending that balance remains, while
all of us understand that technology is eroding that balance,
potentially to the benefit of lawless and destructive elements that
quite clearly challenge both individuals and society.
In sum, legislative, regulatory, and industry measures need to be taken
to restore and reinforce that sound balance between privacy rights and
the legitimate interests of law enforcement and national security long
ago established by Congress.