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EFFector - Volume 10, Issue 10 - Decoding the Encryption Debate


EFFector - Volume 10, Issue 10 - Decoding the Encryption Debate

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EFFector        Vol. 10, No. 10        Oct. 10, 1997
A Publication of the Electronic Frontier Foundation        ISSN 1062-9424


Decoding the Encryption Debate
 Background Briefing
 What's Happening Globally
 Encryption Bills Considered By This Congress
 Encryption Cases Decided in the Courts
 What You Can Do
Quote of the Day

 * See for more information
   on current EFF activities and online activism alerts! *

Subject: Decoding the Encryption Debate

 Background Briefing
 What's Happening Globally 
 Encryption Bills Considered By This Congress
 Encryption Cases Decided in the Courts
 What You Can Do

* Background Briefing

Encryption is the science of secret codes and ciphers.  Through the use of
encryption, we can scramble digital signals so that only intended parties
can read them.  This is important to privacy, network security and free
speech in the digital age.  Individuals can ensure their privacy by
encrypting their personal messages and files.  System operators can
protect the security of their systems by encrypting passwords and credit
card information.  And mathematicians and researchers can exercise their
free speech rights by sharing encryption equations and codes with one
another as part of a scientific exchange. 

Encryption is also critical to electronic commerce for two reasons. 
Personal financial data, such as credit card numbers, can be protected
from illegal intruders through encryption.  Identification verification, a
sort of digital signature, can also be secured through encryption. 

The strength of encryption, and therefore its ability to protect
information, is determined by the size of the mathematical key that is
used to scramble the message.  A large key results in strong, unbreakable
encryption.  A small key leads to weak, easily-compromised encryption. 

The NSA and FBI are scared of public use of encryption.  "Bad guys" might
use encryption to thwart legitimate government attempts to do
investigative wiretaps. The NSA and FBI have relied on the export control
laws, which are designed to protect national security, to restrict the
spread of secure encryption.  Government decisions made on the basis of
national security issues usually cannot be challenged in court.

These law enforcement agencies, in conjunction with Clinton
Administration, want to be able to access the "plaintext" (i.e.,
unencrypted version) of messages at any time.  In order to accomplish
this, the government has limited the key size of encryption to be exported
to that which the NSA could crack.  But the government is not satisfied. 
Over the past several years, the Clinton Administration has floated
several proposals to give law enforcement officers access to the plaintext
of messages, including the Clipper Chip proposal (which would have
required all encrypting computers and telephones to be built with a chip
that made encrypted messages vulnerable) and the current key escrow
proposal (which would require every person to leave a copy of their
encryption key with some entity who would give it to law enforcement
officers when requested). Other, even more dangerous, propositions have
been floated this year, including what appears to be a requirement that
all encryption products have a "back door" for instantanous decryption by
law enforcement or intelligence agents. 

The United States has vested the regulation of nonmilitary encryption
products with the Department of Commerce.  The Secretary of Commerce makes
all decisions regarding the exportability of particular encryption
products in consultation with law enforcment, intelligence and
Administration political interests. Strong encryption cannot be exported
without a license.  Licenses are not granted to individuals or companies
unless the encryption can be decoded by the National Security Agency. 
There are no limitations on the use, production, or sale of encryption
within the United States.  There are no restrictions on the import of
encryption into the United States. 

There has been much activity in Congress and in the courts over the past
year relating to encryption, as well as crypto-regulation debate at the
international level.

* What's Happening Globally

Since the introduction of the Clipper (a.k.a. Skipjack) key escrow
proposition by the White House in 1993, the Administration has been
heavily lobbying foreign governments and inter-governmental organizations
to adopt similar, compatible systems, and even the US systems themselves. 
Despite some initial "crypto-panic" such as that leading to what are
effectively bans on encryption in France and Russia, and the introduction
by a few policy-makers of plans for so-called "Trusted Third Party" (TTP)
key escrow systems, most of the rest of the world seems to be leaning away
from such criminalization and regulation of encryption. 

In Oct., 1997, the European Commission issued a report calling for unified
Europe-wide laws on encryption. This report, despite years of US attempts
to push the "government access to keys" idea overseas, finds key escrow
systems to be inefficient and ineffective. The report calls for
encouraging the adoption of leaner, freer laws, and even for the EC to
override member state's rules if they are over-regulatory.  While the
Commission was mostly considering issues of trade and economy, this is
good news for privacy as well, and may sound the death knell of US
Administration hopes for broad foreign support of repressive US
anti-encryption measures. The EC report is available online
( ), 
as is a short summary of it:
(|0|RAPID&lg=EN ).

However, many other jurisdictions than the US have outdated and harmful
restrictions on distribution or even use of encryption, and police
agencies around the world are likely to continue to press for laws and
regulations that undermine online privacy and security. 

* Encryption Bills Considered By This Congress

This year, both the United States House of Representatives and Senate
considered encryption legislation.  EFF believes that all of the bills
introduced are flawed.


The most talked-about bill introduced this Congress, the Security and
Freedom through Encryption (SAFE) bill, H.R. 695 
( ), was sponsored by
Representatives Goodlatte and Eshoo and gathered over 250 co-sponsors. 
SAFE was unanimously approved by the House Judiciary Committee on May 14,
1997. On July 22, it was approved by the House International Relations
Committee by a voice vote, rejecting an amendment offered by Committee
Chairman Ben Gilman 
( )  that
would have gutted the bill by allowing the Administration to override its
provisions under ill-defined "national security" concerns, such as the
very excuses now being used to justify export controls against encryption
in the first place. 

On September 9, 1997, the House National Security Committee added an
amendment from Reps. Dave Weldon and Ronald Dellums 
( ) that
drastically changed the bill, essentially reversing its intent, and then
approved the amended bill.  This version would increase export controls by
giving the Dept. of Defense veto power over Commerce Dept. crypto export
approvals.  The amendment was so poorly and short-sightedly written it
would undermine US competitiveness and even financial network security by
providing no exceptions for limited crypto export by banks and foreign
branches of US companies. 

On September 11, 1997, the House Permanent Select Committee on
Intelligence added an FBI-inspired amendment that drastically changed the
bill again, even further away from the bill's purpose, and passed it
( ).  This version imposes
severe and Orwellian *domestic* restrictions on use and availability of
encryption, to ensure that police and spy agencies have "immediate
decryption" capability over any encrypted message file, and that providers
of encyrption or encrypting network service give law enforcement this
access without the knowledge of the party being spied upon.

On September 24, 1997, the House Commerce Committee added an amendment
that yet again changed the bill by calling for the creation of a National
Electronic Technologies Center that would assist law enforcement in
research and would provide assistance to federal, state, and local law
enforcement agencies in coping with encryption encountered in the course
of investigations.  The amendment, by Reps. Markey and White,
( )
also would direct the National Telecommunications and Information
Administration (NTIA) to conduct a study of the implications of mandatory
key recovery, and the amendment increases the criminal penalties under
SAFE for the use of encryption in the furtherance of a federal felony. 
This amendment was passed over an even more sinister one calling for
"immediate access" by police to any encrypted message or other data, and
strong criminal penalities for users or distributors of actually-secure
encryption. The amendment represented an incredibly bold move by the FBI,
grasping as it did for even more power than that the Intelligence
Committee amendment - it essentially attempted to illegalize real
encryption, since the only way to provide "immediate access"  is to either
give police "skeleton keys" to all encrypting products before they are
released, or to reduced all security software's strenght so much that it
can be instantly cracked by police - or anyone else.  This, fortunately
defeated, amendment 
( )
was introduced by Reps. Oxley and Manton. 

These disparate versions of the bill - none of them good - must now be
reconciled in the House Rules Committee before a final "compromise" 
version can be voted on the House floor.  Late in Sept., Rules Committee
leadership declared allegiance to the law enforcment and intelligence
agencies' position, and vowed to kill SAFE if it did not grant government
the powers it demanded. 

It is likely that Rules will simply report out a version of SAFE with most
or all of the police "wish list" intact if they cannot be convinced to
kill the bill entirely. Such an "unSAFE" bill could pass the House.  Even
if it fails, the McCain-Kerrey bill (see below) may pass the Senate and 
enter the House for consideration.  Neither eventuality is probable, but
vigilance is necessary.

EFF believes that there are serious civil liberties problems with *all*
versions of SAFE.  First, SAFE creates a new crime (which calls for five
years imprisonment for a first offense and ten years for subsequent
offenses, on top of any other criminal penalities) for using encryption in
furtherance of any criminal offense.

This short-sighted proposal would make anyone convicted of any crime, even
a minor one, subject to life-wrecking prosecution and imprisonment simply
because they did what we will all soon be doing - using an encrypting
phone, email program or web browser - when they broke the law.  This is
like making it an extra crime to speak English or to wear shoes during the
commission of a crime. Legislators hoped this farcical "crypto-in-a-crime" 
provision would mollify law enforcement, but it has not done so. FBI Dir. 
Louis Freeh has made it clear that investigative agencies want export and
import controls, access to everyone's messages without a warrant and
without our even knowing about it, and severe criminal penalties for all
who try to keep Big Brother out of their computers. 

The problems with SAFE do not stop with "crypto-in-a-crime".  SAFE gives
law enforcement officers the authority to gain access to encrypted
information without notification to the owners of the information.  And it
does not legalize the export of encryption software that is not being
mass-marketed or is not in the public domain. 

Amended versions of SAFE are even worse.  They would put new restrictions
on the *domestic* use of encryption (requirements that go beyond the
current limitations on the export of encryption), and/or even more severe
penalties for use of encryption in a crime. 

EFF believes that all limitations on encryption are in violation of the
First Amendment, and domestic restrictions are an extreme power grab by
law enforcement at a time when most citizens do not fully understand the
implications of this action. 

EFF is working to ensure that the SAFE bill is killed before it reaches
the House floor for a vote. 

YOU CAN HELP. Please see the "What You Can Do" section, below.

- Secure Public Networks Act

The misnamed Secure Public Networks (SPN) bill, S. 909
( ), is the Clinton
Administration's bill.  It was sponsored by Senators McCain and Kerrey. 
This bill is an anti-privacy measure, in that it would require
third-parties holding decryption keys to surrender them in response to a
mere subpoena, issued without judicial approval and without notice to the
encryption user. 

While its sponsors claim that it would not make key recovery mandatory,
SPN would require the use of key recovery systems in order to obtain the
"public key certificates" needed to participate in electronic commerce and
would require key recovery for all secure networks built with any federal
funds -- including the Internet II project and most university networks. 
It creates 15 new federal crimes dealing with the use of encryption and
key recovery (not all of them bad from a privacy standpoint.) 

In addition to the stated objectives of the bill, SPN is disturbing
because of some of the things that it does *not* specify.  SPN directs the
President to negotiate with foreign countries to create a worldwide system
for international government access to keys, but provides no limitations
on the President's power.  Even more disturbing, SPN gives the President
the authority to disregard any or all of the provisions of the bill on the
basis of a Presidential Executive Order - yet another way for "national
security"  concerns to be used as an excuse to undermine limits on the
government's abilty to restrict encryption use and distribution.  The bill
also grants the Commerce Department sweeping new enforcement powers.  The
bill was referred to the Senate Commerce Committee, and may also be taken
up by the Constitution Subcommittee of the Senate Committee on the
Judiciary.  Some form of the SPN stands a fair chance of passing the
Senate (to be taken up and passed, possibly with amendments, or rejected
by the House). 

- Pro-CODE

The Promotion of Commerce Online in the Digital Era (Pro-CODE) bill, S.
377 ( ), was introduced
by Senator Burns on February 27, 1997.  Pro-CODE was considered one of the
"better" encryption bills, in fact, the best bill introduced in the
Senate, but it was still contained civil liberties concerns.  Pro-CODE
would have expanded the times encryption could be restricted and stated
that nothing in the bill could be construed to affect any law intended to
prevent the enforcement of federal or state law.  The bill would have
relaxed export restrictions on encryption more than either SAFE or EPCA
II, discussed below). The Secure Public Networks Act was substituted for
Pro-CODE, and passed over a shortlived "Pro-CODE II" compromise amendment
offered by Burns, when it came for a vote in the Senate Commerce
committee, March 19, 1997.


The Encrypted Communications Privacy Act (ECPA II, ECPA I being the
Electronic Communications Privacy Act of 1986), S. 376 
( ), was introduced by
Senator Leahy on February 27, 1997.  ECPA II would prohibit mandatory use
of key recovery but would permit law enforcement to obtain keys if
recovery were used.  It would also make it a crime to use cryptography to
obstruct justice, while offering partial deregulation of encryption export
The bill was referred to the Senate Judiciary Committee, which held
hearings on it on July 9, 1997.  This bill is unexpected to pass but may
influence the SPN legislation in the form of attempts at compromise. 

- Computer Security Enhancement Act

The Computer Security Enhancement Act of 1997, H.R. 1903, 
( ) was introduced by
Representative Sensenbrenner on June 17, 1997.  It would amend and update
the National Institute of Standards and Technology Act to: (1) upon
request from the private sector, assist in establishing voluntary
interoperable standards, guidelines, and associated methods and techniques
to facilitate and expedite the establishment of non-Federal public key
management infrastructures that can be used to communicate with and
conduct transactions with the Federal Government; and (2) provide
assistance to Federal agencies in the protection of computer networks, and
coordinate Federal response efforts related to unauthorized access to
Federal computer systems.  The bill also would authorize NIST to perform
evaluation and tests of: (1) information technologies to assess security
vulnerabilities; and (2)  commercially available security products for
their suitability for use by Federal agencies for protecting sensitive
information in computer systems. This bill was passed by the House on
September 16, 1997, and was referred to the Senate Committee on Commerce,
where it awaits consideration. 

- Communications Privacy and Consumer Empowerment Act

The Communications Privacy and Consumer Empowerment Act, H.R. 1964 
( ), was introduced by
Representative Markey on June 19, 1997.  This bill would codify existing
domestic use policy, permitting unrestricted use of any encryption.  It
would also prohibit the government from requiring key recovery as a
criteria for encryption licensing.  The bill was referred to the House
Committee on Commerce. Passage is considered unlikely. 

* Encryption Cases Decided in the Courts

There have been three important challenges to the export controls on
encryption in the courts.  While decisions in these cases would only
affect currently existing laws, findings that the current export control
laws are unconstitutional would put Congress on notice that any
limitations it planned to make on domestic controls would be equally
illegal.  Two of the cases, Junger vs. U.S. Department of Commerce and
Karn v. U.S. Department of State, are going through procedural hurdles at
the trial level.  The third case, Bernstein v. U.S. Department of State,
is extremely important in that the trial court has found that the export
control laws on encryption are an unconstitutional prior restraint on

- Bernstein v. U.S. Department of State, et al.

( ) 

Daniel J. Bernstein was a Ph.D. student in Mathematics at the University
of California at Berkeley.  He wrote an encryption program, along with a
document describing the program, that he wanted to post on the Internet
for discussion and scrutiny by other cryptographers.  After asking the
State Department, Mr. Bernstein was informed that he would need a *license
to be an arms dealer* before he could post his encryption algorithm and
descriptive document to the sci.crypt (which stands for "science of
cryptography") Usenet newsgroup, and that if he applied for a license his
request would be denied because his algorithm was too secure.  In an
EFF-sponsored case, Mr. Bernstein sued several government agencies,
including the Commerce Department, which now oversees exportation of
non-military encryption products, claiming that the export control laws
act as a prior restraint on his constitutionally protected speech and are
too overbroad to serve their purpose of protecting national security. 
This case was filed in the federal district court for the Northern
District of California and was heard by Judge Marilyn Hall Patel. 

Court's Rulings:

Judge Patel has made several rulings in this case.  The first ruling
(Bernstein I, 922 F. Supp. 1426 (N.D. Cal. 1996)) was on April 15, 1996,
and was in response to the government's motion to dismiss the case for
lack of jurisdiction.  The court held that source code was speech
protected by the First Amendment, and the court therefore had jurisdiction
in the case. 

The second ruling (Bernstein II, 945 F. Supp. 1279 (N.D. Cal. 1996)) was
on December 6, 1996, and was in response to Bernstein's motion for an
injunction so he could post materials to a Web site for the students in
his Spring 1997 crypto course.  The court held that the export control
laws on encryption promulgated by the State Department were an
unconstitutional prior restraint on speech and that Bernstein could
publish for his class while the rest of the case was being decided. 

The final ruling (Bernstein III) was on August 25, 1997, and held that the
restrictions on the publication on encryption were an unconstitutional
prior restraint on speech even as written under the new Commerce
Department regulations.  The court granted an injunction to Professor
Bernstein, forbidding the government from prosecuting him for exporting
Snuffle, the encryption program he wrote, or any other encryption
programs.  The court specifically stated that it could grant a nationwide
injunction against the enforcement of any encryption restrictions against
anyone.  However, the court declined to do this, stating that it expected
an appeal and wanted the most narrow holding it could devise. 

The court also held that allowing printed source code to be exported
undermined the government's claim that this export control scheme protects
any national security interest.  The court thought that distinguishing
print from electronic probably violates the First Amendment under Reno v.
ACLU (_U.S._ (1997)), which held that Internet speech deserves the same
protections as printed speech. 

Current Status:

The government was granted an emergency stay from the 9th Circuit Court of
Appeals, prohibiting Bernstein and others from publishing any secure
encryption until after it has heard the government's appeal.  The court
will hold hearings and consider the appeal the week of December 8, 1997. 

* What You Can Do

[Consider this alert expired as of Oct. 18, 1997.]

Non-US: Available action will vary considerably on what anti-encryption
steps your government is taking or has taken.  In general, you may wish to
urge your law-makers to relax any existing restriction on encryption, and
to oppose new propositions for anti-encryption laws, perhaps basing your
argument on the fact that encryption *reduces* crime and *bolsters* your
country's national security and electronic commerce. 

US: As above, but with some targeted specifics.  Please take a few minutes
to contact key Congresspeople.  Yes, it does cost a little bit to call or
fax them.  By most wages, the time spent reading an average newsgroup for
fun or watching a sitcom on tv is worth more than it costs to make the
important calls.  Eating out at a fast food restaurant costs more than
sending these faxes.  And this is your privacy you are defending. 

The most important members to contact are marked "+". Please call and/or
fax AT LEAST these members, plus your own Representative.  If you are
truly concerned and can spare the time and dimes please call/fax the whole

Unfortunately, most members of Congress are not yet truly up to speed on
email.  Capitol Hill staffers say that most email really isn't taken very
seriously.  Please email these key legislators only as an *extra* measure,
not a substitute for a phone call or fax. 

WHEN TO CALL:  Voice phone calls are best attempted during East Coast
business hours, Fri., Oct. 10, and the working week of Oct. 13-17.  No
committee action is scheduled for the SAFE bill during this week - it's a
lull in the action that can be used to our advantage. 

WHAT TO SAY:  Ask for the legislator's staffer who handles encryption and
technology issues.  Use the speaking points provided below to tell this
person you oppose anti-privacy legislation.  Please remember to be polite,
firm, and brief.  This is not a time to panic or to bring out the
vitriolic invective! 

WHAT TO FAX:  Address the fax to the legislator's name. It will be passed
to the apropos staffer.  You can be somewhat longer in a fax, but it
should all fit on one page. You're just trying to register a strong
opinion, not give a dissertation.  The "Background"  section of this
alert/update should give you enough things to say if you want to back up
your opinion with some liberty and/or commerce reasoning.  Again, please
make all of the points in the speaking points below. 


1) You oppose mandatory key escrow or key recovery, which threaten all
Americans' privacy.
2) You oppose domestic restriction of encryption, including new
crypto-related crimes and import restrictions - these two are a threat to
everyone's privacy. 
3) You oppose export restrictions on encryption, which hurt US business.
4) The SAFE bill's various versions cannot be reconciled in a way that
will satisfy anyone - you are calling to urge that this bill NOT be
5) You are an Internet user and learned about the "SAFE" bill, H.R.659,
via the Net.  (this may make a good lead-in comment, and it is good to
refer to the bill by name.) 

When communicating with your own Representative:
6) Say that you are a constituent, and where you are from. Say you are
watching the outcome of this legislation very closely. 

- Contact House Leadership

 +Newt Gingrich (R-GA), Speaker of the House,  p: 202-225-4501  f: 202-225-4656
 +Dick Armey (R-TX),  Majority Leader,         p: 202-225-7772  f: 202-225-7614
 +Dick Gephardt (D-MO), Minority Leader,       p: 202-225-2671  f: 202-225-7452
  Tom DeLay (R-TX), Majority Whip              p: 202-225-5951  f: 202-225-5241
  David Bonior (D-MI), Minority Whip           p: 202-225-2106  f: 202-226-1169
  John Boehner (R-OH), Rep. Conference Chair,  p: 202-225-6205  f: 202-225-0704
  Vic Fazio (D-CA), Dem. Caucus Chair,         p: 202-225-5716  f: 202-225-5141

+ = the most important to contact - call/fax them first.

The duties of these leaders include coordinating party-wide policy
directions, so they are important members to contact. 

- Contact the members of the House Rules Committee

 +Gerald Solomon (R-NY), Chair,                p: 202-225-5614  f: 202-225-6234
 +John Moakley  (D-MA), Ranking Minority Mem., p: 202-225-8273  f: 202-225-3984
  David Dreier (R-CA),                         p: 202-225-2305  f: 202-225-7018
  Martin Frost (D-TX),                         p: 202-225-3605  f: 202-225-4951
  Porter Goss (R-FL),                          p: 202-225-2536  f: 202-225-6820
  John Linder (R-GA),                          p: 202-225-4272  f: 202-225-4696
  Louise Slaughter (D-NY),                     p: 202-225-3615  f: 202-225-7822
  Deborah Pryce (R-OH),                        p: 202-225-2015  f: 202-226-0986
  Lincoln Diaz-Balart (R-FL),                  p: 202-225-4211  f: 202-225-8576
  Scott McInnis (R-CO),                        p: 202-225-4761  f: 202-226-0622
  Doc Hastings (R-WA),                         p: 202-225-5816  f: 202-225-3252
  Sue Myrick (R-NC),                           p: 202-225-1976  f: 202-225-3389
  Tony P. Hall (D-OH)                          p: 202-225-6465  f: 202-225-9272

+ = the most important to contact - call/fax them first.

House Rules in the next and last committee to examine SAFE. The Rules
Committee will either kill the bill, or pass a "compromise" version that
gives the FBI most or all of the anti-privacy measure the agency has

- Contact your own Representative

Please call and/or fax your own Congressional Representative.  If you do
not know who your representative is, there is an easy way to find out: 

1) First get your ZIP+4 nine-digit postal code. If you don't know it, you
can instantly look it up via the USPS's address-to-ZIP+4 database search: 
( ).  
Enter "Delivery Address", "City", and "State", then select "Process

2) Look up your Representative at the House Web Site's "WriteRep" page:
( )

3) Get your Rep.'s phone and fax number from the CapWeb House contact info
( )

4) To receive future action alerts about your legislator and
privacy-related matters, you can use the Encryption Policy Resource Pages'
"Adopt-Your-Legislator"  service:  
( ).  
You can also look up legislators by ZIP code, but not with the accuracy of
the ZIP+4 search, above.


Subject: Quote of the Day

"The conservation movement is a breeding ground of Communists and other
subversives.  We intend to clean them out, even if it means rounding up
every bird watcher in the country."
  - John Mitchell, US Attorney General, (1969-72)

Find yourself wondering if your privacy and freedom of speech are safe 
when bills to censor the Internet are swimming about in a sea of of 
surveillance legislation and anti-terrorism hysteria?  Worried that in 
the rush to make us secure from ourselves that our government 
representatives may deprive us of our essential civil liberties? 
Concerned that legislative efforts nominally to "protect children" will 
actually censor all communications down to only content suitable for 
the playground?  Alarmed by commercial and religious organizations abusing
the judicial and legislative processes to stifle satire, dissent and 

Join EFF! (or send an inquiry to

You *know* privacy, freedom of speech and ability to make your voice heard
in government are important. You have probably participated in our online
campaigns and forums.  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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