In this EFF Comments to NIST

Found at: gopher.meulie.net:70/EFFector/effect05.09

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                        In this issue:
                    EFF Comments to NIST
        Computers, Freedom and Privacy Conference 1994
            Summary of Rural Datafications Conference

EFF Comments to the NIST (the National Institute of Standards and 
May 27, 1993

Before the

Technology Building, Room B-154
National Institute of Standards and Technology Gaithersburg, MD 



Key Escrow Chip Cryptographic Technology and Government 
Cryptographic Policies and Regulations

The Electronic Frontier Foundation (EFF) commends the Computer 
System Security and Privacy Advisory Board for offering the public 
the opportunity to comment on developments in cryptography and 
communications privacy policy. Recent Administration proposals, 
ncluding use of the Clipper Chip and establishment of a government-
controlled key escrow system, raise questions that cut to the core of 
The questions noted by the Advisory Board in its Notice of Open 
Meeting (58 FR 28855) reflect a broad range of concerns, from civil 
liberties to global competitiveness. The Digital Privacy and Security 
Working Group -- a cooperative effort of civil liberties organizations 
and corporate users and developers of communication technology 
questions to the Administration. (These questions are being 
the Working Group.) That there are so many questions demonstrates 
the need for a comprehensive review of cryptography and privacy 

We are encouraged that the Administration has expressed a 
that plans for rapid introduction of the Clipper Chip could 
unacceptably distort this important policy review. The 
Administration has made no secret of the fact that it hopes to use 
forcing a hasty policy review which may fail to provide adequate 
believes that no solution, with Clipper Chip or otherwise, should be 
adopted by the government until the comprehensive cryptography 

EFF is a nonprofit, public interest organization whose public policy 
mission is to insure that the new electronic highways emerging from 
the convergence of telephone, cable, broadcast, and other 
communications technologies enhance free speech and privacy rights, 
and are open and accessible to all segments of society.

n the Advisory Board's Notice. We offer these comments primarily to
of the Administration's policy review.


Unraveling the current encryption policy tangle must begin with one 
threshold question: will there come a day when the federal 
mandated key escrow schemes or outright prohibitions against the 
use of particular encryption technologies? Is Clipper the first step in 
this direction? A mandatory encryption regime raises profound 
constitutional questions, some of which we will discuss below. So far, 
the Administration has not declared that use of Clipper will be 
mandatory, but several factors point in that direction:


Many parties have already questioned the need for a secret 
algorithm, especially given the existence of robust, public-domain 
encryption techniques. The most common explanation given for use 
of a secret algorithm is the need to prevent users from by-passing 
the key escrow system proposed along with the Clipper Chip. If the 
compliance with the escrow procedure?

The major stated rationale for government intervention in the 
access to criminal communications, even if they are encrypted. Yet, a 
voluntary scheme seems inadequate to meet this goal. Criminals who 
Unless a government-proposed encryption scheme is mandatory, it 
voluntary regime, only the law-abiding would use the escrow 


Even if government-proposed encryption standards remain 
voluntary, the use of key escrow systems still raises serious 


Beyond the present voluntary system is the possibility that specific 
attempt to mandate a particular cryptographic standard for private 
communications, a requirement that an escrow system be used, or a 
mportance of the concerns raised, we must recognize that we are
entering an era in which most of society will rely on encryption to 
questions arise: 

Amendment right against self-incrimination? 

The Fifth Amendment protects individuals facing criminal charges 
from having to reveal information which might incriminate them at 
trial. So far, no court has determined whether or not the Fifth 
Amendment allows a defendant to refuse to disclose his or her 
cryptographic key. As society and technology have changed, courts 
and legislatures have gradually adapted fundamental constitutional 
brings many such challenges to be resolved. Such decisions require 
careful, deliberate action. But the existence of a key escrow system 
used the system in a single step. We believe that this question 
certainly deserves more discussion.

Amendment prohibition against "unreasonable search and seizure"? 

communication of information and storage of information is 
ncreasingly vague. The organization in which one works or lives may
constitute a single virtual space, but be physically dispersed. So, the 
Until now, the law of search and seizure has made a sharp distinction 
between, on the one hand, seizures of papers and other items in a 
communications. Seizure of papers or personal effects must be 
conducted with the owner's knowledge, upon presentation of a 
encryption keys, without prior notice to the communicating parties, 
may well constitute a secret search, if the target is a virtual 
organization or an individual whose "papers" are physically 

nfringe individuals' right to free speech?

Any government restriction on or control of speech is to be regarded 
cryptography for the express purpose of making communication 
ntelligible to law enforcement is akin to prohibiting anyone from
argue that cryptography limitations are controls on the "time, place 
and manner" of speech, and therefore subject to a more lenient legal 
been upheld by courts include laws which limit the volume of 
confine demonstrators to certain physical areas. 
No court has ever upheld an outright ban on the use of a particular 
language. Moreover, even a time, place and manner restriction must 
be shown to be the "least restrictive means" of accomplishing the 
alternatives which could solve law enforcement's actual problems -- 
that must be explored before a solution such as Clipper is promoted. 


As this Advisory Board is well aware, the Computer Security Act of 
agencies are the proper protectors of personal privacy. When 
considering the law, Congress asked, "whether it is proper for a 
to involve itself in domestic activities...?" The answer was a clear 
"no." Recent Administration announcements regarding the Clipper 
Chip suggest that the principle established in the 1987 Act has been 
circumvented. For example, this Advisory Board was not consulted 
only does the initial failure to consult eschew the guidance of the 
already in the process of conducting a cryptography review.

As important as the principle of civilian control was in 1987, it is 
even more critical today. The more individuals around the country 
come to depend on secure communications to protect their privacy, 
the more important it is to conduct privacy and security policy 


The EFF thanks the Advisory Board for the opportunity to comment 
on these critical public policy issues. In light of the wide range of 
Board to call on the Administration to delay the introduction of 
Clipper-based products until a thorough, public dialogue on 
encryption and privacy policy has been completed.

Respectfully Submitted,

Electronic Frontier Foundation

Jerry Berman
Executive Director

Daniel J. Weitzner
Senior Staff Counsel


Computers, Freedom and Privacy '94 Announcement

The fourth annual conference, "Computers, Freedom, and Privacy," 
be jointly sponsored by the Association for Computing Machinery 
(ACM) and The John Marshall Law School. George B. Trubow, 
John Marshall, is general chairman of the conference. The series 
began in 1991 with a conference in Los Angeles, and subsequent 
meetings took place in Washington, D.C., and San Francisco, in 
ssues confronting the "information society" in this era of the
computer revolution. 

The advance of computer and communications technologies holds 
consumers and efficiencies in commerce to improved public health 
and safety and increased knowledge of and participation in 
transforming our environment and our lives. 

At the same time, these technologies present challenges to the idea 
of a free and open society. Personal privacy is increasingly at risk 
from invasions by high-tech surveillance and monitoring; a myriad of 
barriers between citizen and state and present new tests of 
Constitutional protection; geographic boundaries of state and nation 
may be recast by information exchange that knows no boundaries as 

Computers, Freedom, and Privacy '94 will present an assemblage of 
experts, advocates and interested parties from diverse perspectives 
and disciplines to consider the effects on freedom and privacy 
telecommunication science. Participants come from fields of 
computer science, communications, law, business and commerce, 
and consumer affairs, and a variety of other backgrounds. A series of 
conference program beginning on Thursday, March 24, and running 
through Saturday, March 26, 1994.

The emphasis in '94 will be on examining the many potential uses of 
new technology and considering recommendations for dealing with 
them. "We will be looking for specific suggestions to harness the new 
technologies so society can enjoy the benefits while avoiding 
negative implications," said Trubow. "We must manage the 
technology, or it will manage us," he added. 

Trubow is putting out a call for papers or program suggestions. 
"Anyone who is doing a paper relevant to our subject matter, or who 
computer or communications technology and suggest what can be 
content in a short paragraph, and set out the credentials and 
experience of the author or suggested speakers. Conference 
communications should be sent to:

John Marshall Law School
Chicago, IL 60604
(Voice: 312-987-1419; Fax: 312-427-8307; E-mail: CFP94@jmls.edu) 

Trubow anticipates that announcement of a student writing 
competition for CFP'94 will be made soon, together with information 
organizational structure for CFP'94, including the designation of 
allow plenty of time for the development of a stimulating and 
nformative conference."

The venerable Palmer House, a Hilton hotel located at the corner of 
State Street and Washington Ave. in Chicago's "loop," and only about 
a block from the John Marshall Law School buildings, will be the 
conference headquarters. Room reservations should be made directly 

The Palmer House Hilton
Tel: 312-726-7500; 1-800-HILTONS; Fax 312-263-2556 


Chicago, May 13 & 14, 1993

Over 200 hundred people from all over the United States and Canada 
achieving the goal of ubiquitous access to the Internet_. The 
conference was sponsored by CICNet and nine cooperating state 
communications networks or organizations: NetILLINOIS, INDNet, 
of the represented states (Minnesota and Indiana) took the 
opportunity to caucus among themselves to further define their own 

The program began Thursday afternoon with hosted discussion 
networked information services. Then a panel described current 
(Dan Pullen), Montana (Frank Odasz), Washington, Alaska, and Oregon 
(Sherrilynne Fuller), Pennsylvania (Art Hussey), and Massachusetts 
(Miles Fidelman). Questions from the panel and the audience would 

The next morning's sessions featured knowledgeable speakers open 
to interaction with the other conference attendees. Mike Staman set 
the stage. He was followed by Ross Stapleton who spoke about 
Simona Nass who spoke about some of the legal and policy issues of 
networked communities; by Anthony Riddle who spoke about how 
the networked information community could build from the 
experiences of the community access television people; and by 
George Baldwin who spoke about using networked information to 
morning with a presentation that described his efforts to teach 
nformation discovery on the nets using play.

The afternoon session featured reports from the hosted discussion 
libraries, on post-secondary education, on community and 
Bradley University and netILLINOIS moderated.

The interaction among the attendees and between and with the 
attendees. The attendees recognized that we haven't quite figured 
out how to solve the extensive problems that bar network access to 
all but they are excited about continuing to identify and work on 
actually be the first Rural Datafication Conference and offered to host 
and/or organize the anticipated follow-on meeting next year. Many 
offered format and speaker suggestions for that meeting and look 
forward to the anticipated proceedings from the conference which 
CICNet expects to publish.

CICNet is working on a summary of the meeting and working to build 
a gopher/ftp-archive and printed version of the meeting. We'll 
announce the availability of those versions as soon as we can. Thanks 
to all the participants for a successful meeting and to all of you who 
Glee Harrah Cady, Manager, Information Services, CICNet 2901 
Hubbard, Ann Arbor, MI 48105	+1.313.998.6419


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