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Cyphernomicon 9.17

Policy: Clipper,Key Escrow, and Digital Telephony:
Legal Issues with Escrowed Encryption and Clipper


   9.17.1. As John Gilmore put it in a guest editorial in the "San
            Francisco Examiner," "...we want the public to see a serious
            debate about why the Constitution should be burned in order
            to save the country." [J.G., 1994-06-26, quoted by S.
            Sandfort]
   9.17.2. "I don't see how Clipper gives the government any powers or
            capabilities it doesn't already have.  Comments?"
   9.17.3. Is Clipper really voluntary?
   9.17.4. If Clipper is voluntary, who will use it?
   9.17.5. Restrictions on Civilian Use of Crypto
   9.17.6. "Has crypto been restricted in the U.S.?"
   9.17.7. "What legal steps are being taken?"
           - Zimmermann
           - ITAR
   9.17.8. reports that Department of Justice has a compliance
            enforcement role in the EES [heard by someone from Dorothy
            Denning, 1994-07], probably involving checking the law
            enforcement agencies...
   9.17.9. Status
           +  "Will government agencies use Clipper?"
             - Ah, the embarrassing question. They claim they will, but
                there are also reports that sensitive agencies will not
                use it, that Clipper is too insecure for them (key
                lenght, compromise of escrow data, etc.). There may also
                be different procedures (all agencies are equal, but some
                are more equal than others).
             - Clipper is rated for unclassified use, so this rules out
                many agencies and many uses. An interesting double
                standard.
           + "Is the Administration backing away from Clipper?"
             + industry opposition surprised them
               - groups last summer, Citicorp, etc.
             - public opinion
             - editorial remarks
             - so they may be preparing alternative
             - and Gilmore's FOIA, Blaze's attack, the Denning
                nonreview, the secrecy of the algortithm
           + will not work
             - spies won't use it, child pornographers probably won't
                use it (if alternatives exist, which may be the whole
                point)
             - terrorists won't use it
           - Is Clipper in trouble?
  9.17.10. "Will Clipper be voluntary?"
           - Many supporters of Clipper have cited the voluntary nature
              of Clipper--as expressed in some policy statements--and
              have used this to counter criticism.
           + However, even if truly voluntary, some issues
             + improper role for government to try to create a
                commercial standard
               - though the NIST role can be used to counter this point,
                  partly
             - government can and does make it tough for competitors
             - export controls (statements by officials on this exist)
           + Cites for voluntary status:
             - original statement says it will be voluntary
             - (need to get some statements here)
           + Cites for eventual mandatory status:
             - "Without this initiative, the government will eventually
                become helpless to defend the nation." [Louis Freeh,
                director of the FBI, various sources]
             - Steven Walker of Trusted Information Systems is one of
                many who think so: "Based on his analysis, Walker added,
                "I'm convinced that five years from now they'll say 'This
                isn't working,' so we'll have to change the rules." Then,
                he predicted, Clipper will be made mandatory for all
                encoded communications." [
           + Parallels to other voluntary programs
             - taxes
 

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