From: Jerod Tufte <jet5@pyrite.SOM.CWRU.Edu>
Date: Sat, 26 Mar 94 09:55:17 PST
To: markoff@nyt.com
Subject: cfp '94 transcript
Message-ID: <199403261837.AA06592@rasputin.SOM.CWRU.Edu>
MIME-Version: 1.0
Content-Type: text/plain


some interesting stuff form CFP 94 talk Who Holds the Keys?
check out what Stuart Baker ( NSA general counsel) says on clipper.
we thought you would like it. 

Jerod Tufte, Eric Hughes, Fen Labalme, and others

                          Transcript of

          DATA ENCRYPTION:  WHO HOLDS THE KEYS? (Panel)
   at the Fourth Conference on Computers, Freedom and Privacy

                Chicago, Illinois, March 24, 1994


This is a verbatim transcript of the session on "Data Encryption;
Who Holds the Keys?" held at the Fourth Conference on Computers,
Freedom and Privacy in Chicago on March 24, 1994.  The
transcription was done by an independent local transcription
agency.  Light editing was done by CFP volunteers to resolve items
the agency could not be expected to have knowledge of (for example,
"technical" terms like "PGP").  "Did X *really* say U?" questions
can always be resolved by listening to the audiotape available as
tape JM414 from Teach'Em, 160 East Illinois St, Chicago, IL 60611,
1-800-225-3775, for $10 + $1 ($2 outside US) shipping and handling
+ 8.75% sales tax.

=================================================================

                              Welcome to this program from the John
Marshall Law School's fourth conference on computers, freedom and
privacy entitled, "Cyberspace Superhighways:  Access, Ethics & 
Control", held March 23rd through the 26th, 1994 at the Chicago
Palmer House Hilton.
                              On this cassette you will hear Data
Encrytion -- who holds the keys?  Now to our program.
    
BOB SMITH                     Willis Ware originally had been
slated to being moderator for this panel and Willis had a problem
and could not be with us and Robert Ellis Smith has agreed to fill
in and use his technology background to fill in for Willis.  It
will take just a minute while we disengage from the T.V. hookup and
get back to the modern overhead projector.  
                              My name is Bob Smith.  I publish
privacy journal and actually I am moderating because Dave Banisar
did not want to be moderator.  We will hear from the three
panelists with about three ten-minute presentations and then we
will open it up to questions.
                              The three ground rules for this
session:  First, there will be no expansions of the metaphor of
highways.  We will not talk about highway metaphors for the next
hour.  Secondly, we will not accept as a defense that this issue is
too sensitive or too complicated for us to understand and that we
have to trust the government.  And thirdly, a rule that I hope you
will make work.  If you hear a point of jargon or a point of
technology that you don't understand,  explanation -- not policy
disputes but if there is something you don't understand feel free
to raise your hand as a point of order.  And if you can say it in
ten words or less like, I don't understand, we'll get you an
answer.
                              I think Senator Leahy provided a good
primer for cryptography and so I won't bother with that and we'll
get right into the nuts and bolts of this issue.
                              Our speakers are George Davida, who
is with the University of Wisconsin in Milwaukee and has been
involved in cryptography research for many years and was one of the
first academicians to feel the heavy hand of government in the
1980's in its effort to try to curtail research into cryptography. 
That appears to be happening again in the 1990's so perhaps
Professor Davida can tell us something about his experiences
earlier on that same front.
                              Our second speaker will be Stuart
Baker, who is General Counsel of the National Security Agency.  He
was a lawyer in private practice in Washington before joining NSA
and one of the things he promised to do is to tell us exactly what
NSA does and is because a lot of people don't know.  It is
different from the National Security Council by the way.
                              Thirdly, our third speaker will be
David Banisar who is the Computer Professionals for Social
Responsibility office in Washington.  He is trained as a lawyer and
has a background in computer science and has some strong feelings
about the cryptography debate.
                              We will now move to Professor Davida.
PROFESSOR DAVIDA              I would like to talk about two issues
that concern me and I believe a number of people here.  By the way,
I brought some copies of my paper in case you need one today.  And
if I don't have enough you can always write to me at that address. 
And I am also willing to put that on FTP for those of you who are
on Internet and you can pick up a poster file and print it if you
so wish.
                              As Robert said, in 1978 I had an
interesting experience with NFA.  I was doing research at the time
in cryptograhy and one day I received a secrecy order by mail.  It
was more or less like a postcard telling me that under the penalty
of three years in jail and $10,000 fine I am to talk to no one
about what I had done in that paper without reference to any
classified material.  
                              At first my graduate student and I
laughed until we found out that it was deadly serious.  We talked
to the Chancelor about it and he said, no way because in Wisconsin
there is a strong position of academic freedom and we are not
allowed actually to conduct research that's secret.  So we decided
to resist the order and after a number of conversations between the
Chancelor and someone you might have heard about recently again,
Admiral Bobby Inman, and the then Commerce Secretary Juanita Kreps,
the order was lifted.  But not before Admiral Inman tried to
convince the Chancelor that he should acquiesce to the order and
allow us to stay, but I am happy to say that the Chancelor said
that we could not put up with the order.
                              Shortly thereafter a group was formed
by the American Council on Education called Public Cryptography
Study Group, not to be confused with Public Key Cryptosystems.  And
it is interesting that this group considered model legislation for
censorship at first.  I objected to it rather vigorously and when
the press began to get involved in covering the meetings, they then
approved what they called voluntary prior restraint.  I again
dissented from that report and the rest, as they say, is history.
                              Many people have asked, "why do you
oppose restaints?"  Very simply, that privacy is just too important
to leave it just to agencies like NSA.  I also felt that the ACE
recommendations were dangerous because they were later going to be
looked at as some kind of admission by allegedly knowledgeable
people that cryptography is an evil tool that will only be used by
terrorists and drug dealers.  And it is interesting that Senator
Leahy himself refers to the struggle of the law enforcement with
crimes -- and I assume he is talking about drug dealers and what
have you.  But someone should point out to him that they are not
using cryptography today so I don't know what the struggle is all
about.  They may be struggling against criminals -- not because of
cryptography but simply because a crime is just a major problem. 
I would also like to tell them that I don't think that the
intelligence agencies struggle when it comes to tapping ordinary
law abiding citizens.  They do very well, thank you.  
                              I also think that the realities are
very different because cryptography is extremely important for two
very critical applications.  Now so far you mostly hear about one
of them which is privacy.  But the other application that also
needs privacy work on is authenticity, or identification.  These
are two extremely critical applications of cryptography.  And what
is interesting is that the current proposals -- again, you only
hear about one of them -- actually constitute a double whammy --
because there are two proposals that are being put forth today. 
You only hear about Clipper but what you do not hear about as much
is the other twin monster that which is the digital signature
standard.  Basically what they are trying to do with this -- with
Clipper you lack privacy and with DSS you essentially lack the
signature, the identification schemes -- the two most important
operations/applications of cryptography.  
                              So what will essentially happen is
that not only can you invade privacy with digital signatures which
will be essentially the new way of identifying yourselves to an
awful lot of systems and executables.  They will actually be able
to deny your very existence if those systems are allowed to be only
government issued because it will be impossible in the systems of
the future not to use something like digital identification/
digital authentication schemes because there are no other effective
means.  You all know about the silly paper systems we use for
identifications, and even high school students know how to fake
ID's to drink.  So we will be moving toward digital signatures and
if there is only one digital signature it's essentially a proposal
to have just one government Bic pen.  That is what they would like
us to have.  One pen to sign our names with and sign our checks
with and authenticate ourselves with.
                              Now again, as I said, privacy is one
application and I have raised a number of objections to it because
it has been again portrayed as a tool of crime and criminals and
drug dealers.  But they are not the only ones who will be using
cryptography and more importantly, if we continue this policy they
will be the only ones who will have good security because we will
not have any security as to privacy.  And as that saying         
goes "if you outlaw privacy, only outlaws will have privacy".  It
is very strange.  I find myself wanting to go and join
organizations like the NRA all of a sudden.  I really do. 
                              There is also an interesting sort of
deception here going on with this so called escrow system.  The
problem is that, how in the hell can you escrow privacy.  Go look
at the definition of escrow -- it says that something of value held
in trust is given back.  Can you give back privacy?  That is
impossible.  So I think that the very title of that is deceptive. 

                              Then I was amused, as some of you
might have been, with all the stories about bugging to look up a
recent case of my friend Bobby Inman again, standing in front of
television cameras saying that William Safire and Senator Dole were
conspiring to get him with the President.  And the question is,
where is he getting this kind of data?  Presumably he must because
he spent his whole life, by the way, being very careful about what
to say.  You know, I can't imagine he is saying that without having
something to back up with what he was claiming.  So when we talk
about bugging, just what do they do with all that data?  Well, I
think you have seen an example of what possibly may have been dealt
with -- data that is intercepted.
                              Again, authenticity is another area
that I think people should pay attention to.  The second most
important application of the use of identification, digital
signatures for proving who you are and yet again they are proposing
just one single big pen.  I think that these two proposals jointly
amount to what I consider a digital dragnet.  Thank you.
STUART BAKER:                 I have a friend who gives speeches a
lot and he likes to begin all his speeches by referring to country
and western songs that sum up the theme of his talk.  When he talks
about U.S./Japan trade relations, he always starts out by referring
to that classic "you got the gold mine, I got the shaft."  And I
thought about what David would have given as the country and
western song that I should probably sing here and I think in
relation to the Clipper Chip it would probably be "How can I miss
you if you won't go away?"  
                              There is a reason why the Clipper
Chip won't go away and what I thought I would try to do very
quickly because I only have ten minutes before the lynching begins
is talk about why Key Escrow hasn't gone away by talking about some
of the myths that are pretty prevalent about Key Escrow.  I am not
going to call it Clipper because there are a lot of products called
Clipper.  This is the internal name, not something that was used
for the public.  I don't object to people calling it Clipper but
there probably are people who have Clipper products who would
prefer that it not be called that. 
                              Let me see if I can put the first one
up.  [OH slide: Myth #1: Key escrow encryption will create a brave
new world of government, intrusion into the privacy of Americans.]
I think this is pretty -- probably the classic opening statement
about Clipper.  That this is the beginning of some kind of brave
new world in which everybody's privacy is at risk in a substantial
new way.  There is a lot of emotion behind that argument but not a
lot of fact, because if you ask yourself if everybody in the United
States used key escrow encryption and only key escrow encryption,
which is not what the Administration has proposed by any means,
what would the world look like?  Well, the world would look like
the world we live in today.  It would be possible for the
government to intercept communications subject to a variety of
legal rules that make it very dangerous to go outside those rules. 
And, in fact, it would be a more private world because other people
without authority would not be able to intercept and decrypt those
communications.  That is important because, in fact, there is
somebody proposing a brave new world here and it is the people who
want people to go away and to have unreadable encryption installed
on all of the communications networks in the United States.  That's
a new world and that is a world we don't understand.  We don't live
in it today.  
                              We don't know what it is going to be
like if criminals or terrorists or other people who are hostile to
society can use that sanctuary to communicate.  We don't know what
it is like but it probably won't be as pleasant in terms of freedom
from crime and terror as the world we live today, which is not
exactly a comforting thought.  It won't be a world in which the
government can do more than they do today.  So if you ask yourself
well, how bad is it today, that's as bad as it can get under
Clipper.   
                              [OH Slide: Myth #2L Unbreakable
encryption is the key to our future liberty]
                              Now the response to that, that you
hear from people, well, yeah but what if the Republicans get
elected?  What if the Administration changes?  This is a guarantee. 
I don't want to have to rely on laws and procedures and escrow
agents.  I don't trust the escrow agents, I don't trust the courts,
I don't trust the government, I don't trust anybody.  I want to
trust my machine.  
                              Now that is not an uncommon way of
thinking in the parts of this community.  I said to somebody once,
this is the revenge of people who couldn't go to Woodstock because
they had too much trig homework.  It's a kind of romanticism about
privacy and the kind of, you know, "you won't get my crypto key
until you pry it from my dead cold fingers" kind of stuff.  I have
to say, you know, I kind of find it endearing.  
                              The problem with it is that the
beneficiaries of that sort of romanticism are going to be
predators.  PGP, you know, it is out there to protect freedom
fighters in Latvia or something.  But the fact is, the only use
that has come to the attention of law enforcement agencies is a guy
who was using PGP so the police could not tell what little boys he
had seduced over the net.  Now that's what people will use this for
-- not the only thing people will use it for but they will use it
for that and by insisting on having a claim to privacy that is
beyond social regulation we are creating a world in which people
like that will flourish and be able to do more than they can do
today.
                              [OH Slide: Myth #3: Encryption is the
key to preserving privacy in a digital world]
                              I'll move quickly.  There is another
argument that I think is less romantic and that is the notion that
technically, because we are all going to be networked, we are all
going to be using wireless stuff -- we need encryption for privacy. 
I am not going to say that does not fit but it is a little
oversold.  Actually, I agreed with Professor Davida.  Much of the
privacy problems that we see in an electronic world are not because
people are intercepting our communications, they're because we are
giving it away.  But what we don't like is that there are people
now in a position that collate it all from public stuff that we
willingly gave up.  Well, you know, we gave this information to get
a loan from one bank and before we know it, you know, our ex-
spouse's lawyer has got it.  That's a problem, but encryption won't
solve it because you are going to have to give that information up
if you want the benefit that the bank has.
                              Similarly the most important use for
the protection for privacy, protection for data, is authentication
-- digital signatures as opposed to privacy.  I won't say that
encrypting data for privacy purposes is irrelevant but it is
probably not the most important way of guaranteeing privacy in an
electronic age.
                              [OH Slide: Myth #4: Key Escrow won't
work.  Crooks won't use it if it's voluntary.  There must be a
secret plan to make key escrow encryption mandatory]
                              This will be familiar.  You shouldn't
over estimate the I.Q. of crooks.  When I was first starting out as
a lawyer I was in Portland, Maine and a guy walked into a downtown
bank and he said, he handed a note to the teller, it said, "Give me
all your money; I don't have a gun but I know where I can get one." 
I'm sure if you sent him out to buy encryption he for sure would
buy the Clipper Chip.
                              I think this misstates the problem. 
The notion that what the government is trying to do is to put in
everybody's hands this kind of encryption in the hopes that crooks
will be fooled into using it I think is to misstate the nature of
the concern.  The concern is not so much what happens today when
people go in and buy voice scramblers; it is the prospect that in
five years or eight years or ten years every phone you buy that
costs $75 or more will have an encrypt button on it that will
interoperate with every other phone in the country and suddently we
will discover that our entire communications network, sophisticated
as it is, is being used in ways that are profoundly anti-social. 
That's the real concern, I think, that Clipper addresses.  If we
are going to have a standardized form of encryption that is going
to change the world we should think seriously about what we are
going to do when it is misused.
                              [OH Slide: Myth #5: Industry must be
left alone for competitiveness reasons]
                              Are we interfering with the free
market?  Are we affecting the competitiveness of U.S. industry
here?  First, Clipper is an option.  It is out there.  People can
use it.  They can make it.  They can not use it.  And they can not
make it.  It's simply an additional option on the market.  There
may well be people who want this.  
                              I am a lawyer.  I think in terms of
who is liable if something goes wrong.  And I think that if it's
your business, and you are thinking about buying encryption and the
possibility that your employees will misuse it to rip-off your
customers, you ask yourself, well who is going to be liable if that
happens?  You might think, "Geez, maybe I don't want to be in a
position where I can't actually make sure the police can come in
and check to see if people are misusing this encryption where I
have reason to believe that they are."                         
                              Second, and this is a point that gets
lost a lot: this is a standard for what the government is going to
buy because nobody in this room  has to buy this thing.  Now the
complaint is kind of remarkable from all the stand-on-your-own-two-
feet, free-market, nobody-tells-me-what-to-do,  organizations that
we hear from.  The fact is, that this is just what the government
is going to buy, and the people who are complaining that they don't
want to make it, or don't want to buy it, don't have to.  What they
are really saying is, we would like the government to go on testing
equipment, telling us what the best stuff is so we can then go out
and sell it without doing our own research, doing our own
debugging, our own checks on this technology.  I think if you think
of it from the government's point of view you see why we don't want
to do that.  We probably -- there are very few institutions other
than government that are willing to devote both the kind of energy
and resources that it takes to eliminate the last few bugs in
encryption software or machinery.  To go through and find every
possible attack and think about how to prevent it -- somebody once
said, the airport guy talking about encryption he said, well, I'll
take it if it is invisible, doesn't have any effect on the pilot,
and adds lift to my airplane.  There is an attitude about
encryption that I think most of you have probably encountered in
the commercial world is, "Yeah, I want it if it is free."  But
there is very little demonstrated inclination on the part of
industry to spend a lot of its own money to develop independent
encryption.  And the fact is that a lot of the encryption that is
out there today was designed with government money, or endorsed by
government standards or otherwise supported by government
fortresses.  But if the government is going to create encryption
and create markets and run the cost down, then we ought to be
designing and buying encryption that we are willing to see migrate
into the private sector without destroying the ability of law
enforcement to deal with it.  
                              And, I guess, the last point, people
who don't want to sell to the government can make anything they
want.  People are willing to put their own money into designing
encryption can do it.  This is just what the governments fund.
AUDIENCE COMMENT:             But you can't take it overseas.  What
the government buys is (inaudible) technical for overseas.
BAKER:                        This is also something that we hear
a lot about and I'll deal with it quickly.  
                              [OH Slide: Myth #6: NSA is a spy
agency. It has no business worrying about domestic encryption
policy]
                              Yeah, the NSA does indeed gather
signal intelligence in foreign countries.  But we have a second
issue.  Not only do we try to break people's codes but we make
codes for the federal government.  That means we have as a
significant mission trying to design secure communications here
that the government is going to use.  And we face the very real
concern that I described earlier, that if we design something and
it's good and it's terrific stuff and the price goes down because
the government has bought a lot of it, then other people are going
to use it.  It may end up becoming the most common encryption in
the country.  If that happens and people like this pedophile out in
California start using it, we have some responsibility for that and
therefore we have some responsibility to design and use encryption,
that (if it does migrate to the private sector) does not put law
enforcement out of business.
                              [OH Slide: Myth #7: The entire
initiative was done in secret.  There was no opportunity for
industry or the public to be heard.]
                              This is my last one.  Again, this was
true, I think or at least it was a reasonable thing to say in April
of '93 when the Clipper Chip first showed up in people's
newspapers.  But since then the Administration has done an enormous
amount of public outreach listening to a variety of groups -- EFF,
CPSR, industry groups, holding hearings, organizing task forces to
listen to people.  It is not that they weren't heard -- what I
expect people to say is, yes but you still didn't listen.  We said
we don't like it.  How come you still did it?  
                              I think that the answer to that is
you have to ask yourself, what is the alternative that people will
propose.  It is not enough in my view to simply say "Get rid of it. 
What we want is unreadable encryption so that we have a guarantee
of privacy against some government that hasn't come to our country
in 15 years or a hundred years or two hundred years, and in the
same guarantee that criminals and other people who don't have
society's interest at heart will have a kind of electronic
sanctuary."  That is not a very satisfying answer for people who
have to uphold the law as well as try to get the national
information infrastructure off the ground.
                              Thanks.
DAVE BANISAR:                 Well, first I'd like to say I'm not
sure what song you were referring to in your country and western
description, but I think if I had to choose a country and western
song it would probably be "Take This Job and Shove It."
                              Moving onto the high road from now,
I think what we have here is a really fundamental change in the way
the communication system is being looked at in the future. 
Currently we have a situation where if somebody decides they need
a wiretap, which is an issue I'll get to in a minute, whether it is
useful or not, they go and they do an affirmative action.  And the
communication system is essentially set up to communicate.  I use
it to call.
                              These two proposals, digital
telephony which we haven't talked about here too much and Clipper,
change that around.  They change it into a fundamental purpose for
the communication sytem now is going to be, let's make it available
for surveillance.  Essentially, we are designing pretapped
telephones and then we have to work on the assumption that at only
authorized periods will they not turn those on.  This is a
fundamental change.  It treats now every person as a criminal.  We
are looking at them going -- well, I think that every person in
this room is a criminal so I will build the tap into their phone. 
Perhaps next they will be building microphones into everybody's
desk chairs and only turning them on when they need them.  Frankly,
in reality I don't know if the law enforcement has really made the
case for wire tapping.  Just last week they busted the entire
Philadelphia mob.  They got it by putting a microphone in the
lawyer's office.  This book here, GangLand, it is all about how
they got Gotti.  They put microphones on the street to get Gotti. 
The FBI comes and they give us the four cases.  They have the El-
Rukh people here in Chicago which I believe was more like a scam to
get some money out of the Libyan government.  They have one
pedophile, they have a couple of drug dealers and so on and they
keep doing this. 
                              I don't think they really made the
case.  There's only in reality 800 or so wire taps a year.  They
are only a part of the deal.  A lot of busts, especially from
Mafia, are done with inside people with microphones, with a lot of
other technologies out there.  The FBI has spent billions of
dollars in the last ten years modernizing.  They have an amazing
computer system now, amazing DNA systems, amazing everything.  They
are not behind the scenes anymore, or behind the ball anymore.
                              To give you a new example: There were
approximately a couple thousand arrests in 1992 that they say were
attributable to electronic surveillance and that includes bugs.  So
it is hard to say how many of those were actually wire taps.  In
1992 there were 14 million arrests in the United States.  That's an
awful lot of arrests and an awful small number of those had to do
with electronic surveillance.  Are we willing to revise our entire
communication system just for that very small number?  It is a
question that needs to be asked.
                              Now we have a problem.  I wish we
could wave my magic wand here and solve the problem.  [Takes out
wand] You know, this is the magic wand that I can say crypto be
gone, or crypto be strong.  I don't know.  It's not working.  Oh
well.  So I have a couple solutions or a couple suggestions as they
may be.   
                              First is to withdraw the Clipper
proposal.  It's a bad idea.  Nobody wants it.  Of the CNN/Time
Magazine poll 80% of the American public didn't want it.  Industry
doesn't want it.  Fifty-thousand people signed our CPSR Clipper
petition asking for its withdrawal.  I haven't seen anybody in the
world who wants this thing -- well, save two, but I won't mention
them.  
                              What should be done is to restart the
process.  Back in 1989 NIST was basically ordered to start a new
process to return to make a new version of DES, or to replace DES
with something else.  And they had a good idea.  They wanted it to
be an open process.  They wanted to look around, talk to people
like they did back with DES and they eventually got that from IBM. 
They wanted a public algorithm that did both security and
authenticity.  They wanted it available in hardware and software. 
They wanted it to be a good strong standard for everybody.  This
hasn't happened.  
                              You know, withdraw the Clipper
proposal and start the process over.  There's lots of people in
this room even who could come up with something very good but the
fact is that we have not been allowed to do it.  We had, I guess,
nine or ten months after Clipper came out which had been designed
in secret for the last five years.  In that time nobody has come
out and supported the thing and lots of people have had better
ideas.  But they came back a couple weeks ago and came out with the
exact same proposal with one or two typos replaced.  But that's
about it.
                              The second thing we need to do is
revise the law.  We need to do this since NIST is the agency that
is supposed to be in charge of this.  We should make NIST subject
to the same kind of rules that every other government agency has to
go by.  Why should NIST have lower standards to develop these
crypto things which will affect all of our privacy than the FCC
does when they hand out a radio license; when the Environmental
Protection Agency does when they determine how much toxic waste we
can survive in?  The basis for this, for any of you that are
lawyers in the room, is known as the Administrative Procedures Act. 
It is very well established, it has been around 40 years.  Every
other government agency, every other public government agency uses
it already and it works well.  The things that go under this
rulemaking is that it is open.  It is done in the open.  There's no
communications behind the scenes.  It's all done in the public eye. 
The decision -- when they finally make a decision -- is based on
the public record.  It is not based on something on a classified
study.  And it is appealable.  If we think that we've been screwed
we can appeal.
                              Finally, as we heard three or four
times today, we need an independent privacy commission.  Simply
speaking, there is nobody in this government -- in the U.S.
government -- who is responsible for privacy.  To look around and
say, wait a second, this isn't working.  I mean, what kind of
government do we have that comes up with something on surveillance
and calls it the "Communication Privacy Improvement Act"?  What we
need is a government agency that can look around and give an
independent assessment on what's going on.  And it can't be shunted
aside or ignored or anything like that.  We have to realize, and I
apologize for breaking Bob's ground rules, that we're building the
national information infrastructure without any guard rails.  And
we need to think about it and get back.
                              Thank you.
BOB SMITH:                    Questions, short and sweet.  We have
limited time.
CHARLES MARSON                Charles Marson, lawyer of San
Francisco.  I would like to ask a question of the General Counsel. 
I have to say, this may be my one lifetime opportunity.  
                              A lot of the Administration's case
for the Clipper depends on a reliance and a level of comfort with
present law.  We are always told present law covers these things we
are not extending anything.  Present law requires your agency, sir,
to apply to the foreign intelligence court for a warrant.  CBS News
issued a report last month that said that -- I think it was 4,500
applications had been made to that court -- all appointed by Chief
Justice Renquist, and 4,500 have been granted.  That is to say not
one has been denied.  Now in terms of our comfort level with
present law will you tell us why it is that we should not conclude
that this court is nothing but a Fourth Amendment fig leaf and that
your agency is in fact free to tap anybody it wants.
STU BAKER                     There's an interesting element -- I
think you have to understand bureaucratic behavior in part here.
CHARLES MARSON                My fear is that I do, sir. 
[Laughter] A real tap whomever you please.
STU BAKER                     Let's bear in mind, these are all
Article III judges.  I actually don't know that the figures you
gave are right.  But these are Article III judges from all over the
country.  They are used to seeing law enforcement wire taps and to
reviewing them carefully.  Their whole life is sticking to the law.
CHARLES MARSON                If they said yes all the time, who
cares?
STU BAKER                     Well, I -- let me offer an
alternative explanation for the record of the courts and the agency
in terms of FISA applications.  And that is this.  No one wants to
be the first general counsel whose application is turned down. 
Nobody wants to get creative about what you can do and what you
can't do.  And so the effect of putting into judicial review is not
so much that it is going to lead to judges rejecting a lot of stuff
as much as it will make the agency make sure that before it takes
something to the court, it is absolutely confident it has a case
that it can make, that the judge will accept as fitting within the
standards set by the statute.  It's for the same reason that
prosecutors don't like to bring cases that they don't think they
can win.  People do not like to try and fail and they consequently
are very careful about what they put forward.  I think that in fact
is a more creditable explanation of the figures that you gave if
they are right than the explanation you gave which is that judges
don't care what the law is.  I don't think that's true.
SPEAKER                       Could we move on to the next
question, thank you.
PHIL ZIMMERMANN               That explanation reminds me of the
Doonsberry cartoon about grade inflation where some students sued
for not getting an "A" in this course and in the courtroom they
said that this university gave an "A" to all students.  How is it
possible that the entire graduating class had an "A" average of 4.0
and they said, well, you know, it's just a great class.  So I guess
all those guys that applied for the wiretap orders through that
judge, all those judges, absolutely all of them did everything
right.  It's sort of a grade inflation for wire tap requests.  
                              One thing that bothers me about this
process of Clipper ....
MODERATOR                     Your name please.
PHIL ZIMMERMANN               I'm sorry.  I'm Phil Zimmerman.  I am
the author of PGP [applause].  I'm sorry, I didn't hear the part
about what is your name.
                              It seems to me that this Clipper
process has some kind of secret game plan that the government is
following through that we only find out about each step of it as it
unfolds.  I saw on the net some news about some representative of
the U.S. government going -- it might have been from NSA -- talking
to people in Europe, other countries in Europe, about them getting
their own Clipper systems.  Well, that seems like a public policy
thing that we should have been discussing openly here before
sending somebody over there to quietly do horizontal escalation and
get this Clipper thing glued in worldwide, planetwide before ....
thus making it harder to reverse later.
MODERATOR                     Could you phrase the question?  The
line behind is getting restless.
ZIMMERMANN                    Okay, okay.
                              I think that this kind of secretive
agenda is not being treated like other public policy issues like
health care and things like that that are openly debated.  It's
like we are being treated like an enemy foreign population to be
manipulated cynically.  And so I would like somebody to respond to
that, whoever wants to respond to that -- why can't we be treated
like ...
MODERATOR                     Let's hear the response.
ZIMMERMANN                    Okay.
STU BAKER                     There isn't a secret plan.
AUDIENCE                      (Negative response from the
audience.)
STU BAKER                     But, all right, there will be --
we're not the only place that's worried about law enforcement and
criminal misuse of the communications system.  Every country in the
world is going to be concerned about that -- it is no surprise. 
Today France says we will tell you what you can use, what you can
export, what you import.  Singapore, we've had lots of companies
say we're concerned about that.
ZIMMERMANN                    Singapore -- it's illegal to not
flush the toilet in Singapore.  I didn't make that up, that's true. 
It's possible to construct a society -- a crime-free society -- but
who wants to live in a society like that?  We might be heading
toward Singapore.  I'm glad you said Singapore -- I couldn't have
paid you money to say that -- I'm glad you said Singapore.
STU BAKER                     But look, Italy has just banned forms
of encryption on the phone system.  The significance I think of the
Singapore example is that we shouldn't expect that as Asians get
richer they are going to say, oh well, let's adopt American views
about privacy.  What's important about that, I think, is the view
that we get from a lot of people whose life has been open systems
and will have seen that standards are the key to new technological
advances, believe that if they could standarize encryption and sell
it everywhere in the world, it would sweep the world and whoever
had the best product would win.  I think that reckons without the
law enforcement concerns that you will see in every country.  And
you are already beginning to see other countries say we are not
going to tolerate unreadable encryption of all sorts proliforating
throughout our communications network.  You are going to see more
of that.  Not less.  It won't happen here but it will happen in
other countries.  
AUDIENCE                      Yes, worldwide.
MODERATOR                     Can we move onto the next question? 
And we probably have time for only two more.
BLAKE SOBILOFF                My name is Blake Sobiloff and I'm
with ACM SIGCAS and I'm trying to figure out some sort of
philosophical presupposition that you have -- the kind that frames
your approach to your objections to anti-Clipper individuals.
BAKER                         Most of the anti-Clipper individuals
I really like actually.  
BLAKE SOBILOFF                Okay, well, their position.  Would it
be fair to characterize your position as one that assumes that a
desire for an unimpeachable privancy can be fairly well equated
with the desire to engage in lawless acts?
BAKER                         No, I think that's completely wrong. 
The problem is that guaranteeing privacy to everybody is going to
guarantee it to some people who will misuse that kind of
technological sanctuary.
AUDIENCE                      (Negative response.)
BAKER                         All right, okay.  Well, to continue
the poor song metaphor, if anyone is familiar with the Spin Doctors
rock group.  Let me say that you are a fantastic Spin Doctor and I
do admire you for that but I'll keep my pocket full of kryptonite. 
Thanks.
QUESTION                      Can I make a comment on that.
BAKER                         Yes.
QUESTION                      I think it is important to say
something about who asked NSA to be the guarantor of privacy. 
Asking NSA to guarantee privacy is sort of like asking Playboy to
guard chastity belts.  
BAKER                         I tried to address that briefly.  Our
job is in fact to guarantee the privacy of U.S. government
communications when they're talking about whether to go to war, for
example.  That's one of the things we do and it is one of our two
principle missions.  We do guarantee privacy.  Now I understand the
reaction but we do have a job to create encryption and to make it
as good as we possibly can.
AUDIENCE                      Not for my privacy.
BAKER                         My concern is that what we design is
very likely to be -- to find itself migrating into private sector
and if we design it in a way that is going to put law enforcement
out of business we haven't acted responsibly.
MODERATOR                     Next question.
HERB LIN                      My name is Herb Lin.  I'm with the
National Academy of Sciences regarding the need for an independent
look at it.  The U.S. Congress has asked the Academy to undertake
an independent assessment of national cryptography policy. 
Descriptions of that study are out on the giveaway desk.  I'll be
glad to talk to anybody about it.
MODERATOR                     Thank you.  We've got one more.
(Unknown)                     My name is Barbolin (?) from GRC (?). 
I have a question concerning the algorithm that is used in the
Clipper Chip, Skipjack.  That algorithm is not being made public
and yet one of the very basis of scientific research is that the
work should be published and then reviewed by the community and
approved as the state-of-the-art develops.  Yet it seems that the
NSA reluctant to do that.  There is a certain amount of conjecture
that in fact the algorithm contains a deliberately encoded weakness
that will allow the NSA, without access to the escrow keys, to be
able to intercept communication in their mission to monitor on-
shore and off-shore communications.  There's a number of us in the
scientific community that are greatly concerned that that algorithm
is not being made public.  I would like the counsel from NSA to
address that with a simple yes or no answer.  Is that a problem? 
And then I would like our university professor to comment on his
opinion in this matter.
BAKER                         I'll answer it yes or no if you'll
tell me exactly the question.
UNKNOWN                       Does it or does it not contain a
weakness that allows you to intercept the communications without
access to the escrow keys.  
BAKER                         No.       
MODERATOR                     I'm sorry, that has to be the last
question.  We will conclude.  I'm sorry, we have to stick to the
schedule.  [Negative audience response.]
We'll conclude with another country song which is ....
GEORGE TRUBOW, CONF. CHAIR    Let me explain to you what our
problem is.  During the reception this room is going to be cleared
and turned into the dining room for our meal this evening and so
the hotel has a schedule; and if you want to give up the evening
reception and meal we could do that but that's why we've got to
close out.  You want to go for a little longer.  Okay, how about
this for a promise, we'll quit at six (pm) which will give us
another seven minutes.  All right.
PROFESSOR DAVIDA         I will comment just very briefly about
this issue of standards and algorithms.  
                         I've worked for almost 20 years in
organizations like IEEE(?) Computer Society and we have addressed
issues like standards.  It is important to understand what a
standard is.  Standards' purposes are primarily to promote trust in
commerce and the products that you are actually engaging in, buying
or using.  DES and other encryption standards deviate from that
substantially.  These are not standards that set a boxing or weight
standard, or a packaging standard, which is what most electronic
standards and computer standards tend to be like.  For example,
there is no standard that says you must use the Intel 8085 or
whatever.  There is no standard that says you must use a particular
chip.  The standards pertain to buses, number of bytes and what
have you.  DES and other standards like that force us to adopt
something which is basically monopolistic.  It is specific
algorithm.  So there are some fundamental faults with it.  But as
for trusting algorithm that somebody else designed, I stand by my
previous comment.
MODERATOR                     Thank you.
MIKE GODWIN                   I'm Mike Godwin with the Electronic
Frontier Foundation and I have a question, as you can image for the
General Counsel of the NSA.  
                         You said in myth number four that we can
anticipate -- and in fact NSA did anticipate that these
technologies would become available in five to ten years.  People
would go buy telephones, have an encryption button and be able to
use this technology -- I think I am quoting you accurately -- in
profoundly anti-social ways.  Isn't it true that many otherwise
acceptable technologies can be used by individuals in profoundly
anti-social ways including, say the printing press.  Isn't it in
fact true that in a democratic society we make a decision to
empower individuals knowing upfront and openly that we do so taking
risk about society.  Isn't that in fact the case in this country?
BAKER                    Yes.  And first I should say, Mike, I
haven't met you but I've read your stuff and actually, is David
Sternlight here too?
                         Sure you take risks and you have to look
at each technology as it comes.  Let's take a look at cars.  Cars
have advantages and risks and how do we deal with that.  We put
license plates on every car and everybody has to have a license
plate on their car even if they think it violates their First
Amendment Rights to do it.
MIKE GODWIN              In fact, automobiles are a little bit
different because we do have explicit Constitutional guarantees
with regard to communications.  We have implicit and explicit
guarantees as regard to privacy and it is a little bit different
from driving your Ford.
BAKER                    Well, actually there is a Constitutional
right to travel.
MIKE GODWIN              There is a Constitutional right to travel,
that's correct.  But we are talking -- it's still a false analogy. 
This is a central right.  You know, Hugo Black said that there is
a reason for the First Amendment to be a First Amendment.
BAKER                    This is why I never get on the net with
you, Mike.  
MIKE GODWIN              So I take it you've answered my question. 
The reason -- the thing that really troubled me about your comments
is that you did talk about France and Italy and Singapore and it
seems to me worth pointing out that the theory of government that
we have in this country is a little bit different from the theory
of government in France, Italy and Singapore.  (Applause)
BAKER                    Absolutely.  I don't think that we will
ever have the same view of government that any of those places
have.
MIKE GODWIN              I'm confident.
BAKER                    And I think the short answer is, yes, as
each technology comes along we have to evaluate the risks and the
rewards that come with it and try to figure out the way to get as
much good from it and as little bad from it.  And the response is
going to be very variable depending on the technology.  But you
can't set up a principle that says we will always do whatever seems
like the best technology today without regard for the social
consequences.  We don't do that with guns, we don't do that with
cars, we don't do that with any kind of technology.
MODERATOR                Can we go on to another question?
JOHN BRIMACOMBE          Hi, my name is John Brimacombe I'm a
European scientist and user of cryptography.  I'd like to go
through something very quickly here.  First, you know, people know
about cryptography in Europe.  We know about all the algorithms. 
Secondly, you know, scientists in Europe don't have brains so
defective that we can't implement them.  And there is going to be
a big market for this sort of stuff out there in the world.  Now,
we can do that work, we are doing that work, we like doing that
work.  You are cutting yourselves off.  My question is, why are you
screwing yourselves this way?  My worry looking at your nice
salesmen of your shiny Clipper Chip coming to sell it to all my CEC
people.  I'm worrying that you see this problem.  You see
yourselves being put out of the market by these nice Europeans. 
They say, okay, let's go and screw their market up to a Clipper.
MODERATOR                No response?
BAKER                         No, I liked the speech.
MATT BLAZE                    Matt Blaze from Bell Labs.  I have a
question that was originally for Senator Leahy but it could be
equally well directed to the NSA Counsel.  Do you see any risks in
terms of risk assessment of the Clipper proposal to the fact that
the escrow procedures exist entirely within the purview of the
Executive Branch, the Attorney General in particular, and can be
changed essentially at will entirely within a single branch of
government?
BAKER                         I think that's a reasonable concern. 
One of the interesting things is that we designed it so you decide
who you trust and that's where the keys go as a society. And we
didn't have much input into who holds the keys.  This is almost a
litmus test though.  It is kind of interesting when you ask, well
who do you trust, exactly?  And often the answer is "Well, just not
those guys."  And it is much harder when you ask the question,
"Well who would you trust?"  I think Jerry Berman was quoted as
saying I don't care if it is Mother Theresa and the Pope who holds
the keys.  There certainly are people who feel that way.  There is
a lot of talk about whether, you know, should you have private
sector entities hold the keys and I have to say that one doesn't
...
MODERATOR                I have to say through the escrow agency. 
The procedures are written and under the authority of the --
entirely within the Attorney General.
BAKER                         The procedures don't change the fact
that we are all governed by laws that are already on the books that
make it a felony to do stuff without authority.  And so the
procedures for withdrawing key are written down as Executive Branch
rules but the legal framework for that is set by Congress or by the
Fourth Amendment as a matter of fact.
EFREM LIPKIN                  I'm Efrem Lipkin that works in
community and I guess I'm a fossil from the '60's.  My parents had
to deal with HUAC.  I had the utterly surreal experience -- I was
in the Civil Rights Movement -- I had this surreal experience of
apparently a government agent tried to plant a copy of the Daily
Worker on me.  And so my question is really for CPSR.  Why, I
understand why the NSA says we don't have to worry about this
government.  We haven't had any trouble with it recently.  But why
doesn't CPSR point out all of the trouble we have had and how the
protection -- the privacy protection we want and that we
historically needed -- is from the government.
BANISAR                       Well, obviously, you haven't been
reading a whole lot of my press releases.  We've been pointing out
a lot of the abuses and problems that have been going on.  We have
also some deep concerns to pour off here a little bit about the
escrow procedures.  At the end of each escrow procedure it mentions
that they are not enforceable so if they are violated it wouldn't
matter because this evidence can't be suppressed.  Frankly -- I
guess somebody asked me today -- Mike Nelson from OSTP apparently
now is talking about putting the escrow key holders outside the
government.  I frankly think that it wouldn't make a whole world of
difference whether Mother Theresa and the Pope held the keys then
if they are not enforceable.
MODERATOR                Thank you, thanks to all the panelists for
coming.  We'll conclude with another country song, "I've Enjoyed
About as Much of This as I Can Stand."
                              Just a moment please, there is a
related announcement on an equally high note I want to read this to
you and to my colleague here.  To a dedicated advocate, gifted
journalist, generous friend and true champion of freedom, Robert
Ellis Smith. publisher, Privancy Journal, in recognition of 20
years in service to the cause of privacy protection.  With warm
regards from friends and colleagues in celebrating the 20th year of
the publication of this fine journal.
ROBERT ELLIS SMITH            I have a few words I would like to
say.  

END OF TAPE
                              
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There endeth the transcript - CFP'94 Volunteers.

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