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EFF601.TXT
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1994-07-17
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EFFector Online Volume 6 No. 1 9/17/1993 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
1098 lines
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In This Issue:
Clipper Escrow Agents Chosen
Barlow's "A Plain Text on Crypto Policy"
Crypto Conference in Austin
Virginians Against Censorship
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Clipper Escrow Agents Chosen
****************************
In the next several days, the Administration will announce it has
chosen at least one escrow agency and has developed procedures for
accessing escrow keys pursuant to warrant. Here is an account of an
Administration hill staff briefing on September 16, 1993, and the draft
procedures for law enforcement, foreign intelligence, and state and local
law enforcement wiretapping. We are looking for comments and analysis.
Please circulate widely.
Jerry Berman, EFF.
==================
RE: Clipper Escrow Agent Briefing for Congressional Staff
Yesterday, September 15, 1993, a briefing was held for
congressional staff regarding the status of the Clipper project. The lead
briefers for the Administration were Mark Richard, Deputy Assistant
Attorney General, Criminal Division, DOJ; Jim Kallstrom, FBI; Geoff
Greiveldinger, Special Counsel, Narcotic and Dangerous Drug Section, DOJ;
and John Podesta. Also present were Mary Lawton, Counsel for Intelligence
Policy and Review, DOJ; Mike Waguespack, NSC; and Dwight Price, National
District Attorneys Association.
The Administration has tentatively settled on NIST and a yet to be
determined non-law enforcement component of the Department of the
Treasury as the "escrow agents." The Administration will finalize the choices
in the next few days, according to John Podesta. The Attorney General will
make an announcement, in what form has not been determined, but it will
probably not be a Federal Register notice. The Attorney General will
announce that she has adopted, and the escrows have agreed to follow, the
attached procedures.
The system will work as follows:
(1) A black box (actually a PC) in the possession of a law enforcement
agency will be able to read the Law Enforcement Access Field in a Clipper
encrypted data stream and extract the identification number specific to the
Clipper chip being used by the intercept target. Cost of the black box yet
undetermined. How many will be purchased by law enforcement yet
undetermined, although if use of Clipper becomes common, the black boxes
will be in great demand, by federal as well as state and local agencies.
They will be available only to law enforcement, with yet to be specified
controls on their sale. Each black box will have a unique identifier.
(2) The law enforcement agency will fax the device ID number to
each of the escrow agents, along with a certification that the agency has
authority to conduct the intercept, the ID number of the intercepting
agency's black box, and the time period for which the intercept is
authorized (in the case of Title III's, up to thirty days, with
extensions).
(3) The escrow agents will transmit the key components by encrypted
link directly into the black box of the requesting law enforcement agency.
The key components will only work with that particular black box, and will
only work for the stated duration of the intercept. If the intercept is
extended, the law enforcement agency will have to send a new request to
the escrow agents to extend the life of the key components. The escrow
agents will maintain logs of the requests. Greiveldinger stressed that the
system is "replete with recordation of the transactions that will occur."
The escrow agents also have a responsibility for maintaining the integrity
of the chip manufacturing process.
In opening remarks describing the need for the Clipper escrow
system, Kallstrom had stressed that the AT&T product posed a unique threat
in terms of voice quality, affordability, portability and strength of the
encryption. The Administration rejects the argument that voice encryption
is readily available. The AT&T product, which isn't available yet, is
unique, and competing products, the Administration argues, are yet further
in the future.
The next voice encryption product in the pipeline is Motorola's,
and Motorola has expressed interest in using Clipper in its product. The
Administration argued that the need for compatibility would drive a
significant share of the market to Clipper or Capstone-based products.
Escrow coverage will not be complete, but the bad guys are careless and are
expected to use Clipper products.
The key criterion used in selecting the escrow agents was whether
the agency had experience in and an infrastructure for handling sensitive
information. The Administration did not want to use a law enforcement or
national security component, for credibility reasons. It did not want to
use private entities based on concerns about longevity and not wanting
security to be governed by the need to make a profit. The briefers
admitted that the proposed system is not really an escrow. The agencies
holding the key components will not have any duties or responsibilities to
the Clipper users. The escrows' obligation will be to the government, and
they will be liable to Clipper users only under the Bivens doctrine, where
any failure must be shown to be wilful.
Both John Podesta and Mark Richard stated that there is no plan on
or over the horizon to outlaw non-escrowed encryption.
John and Mark said that the international aspects of the
escrow/encryption issue are the thorniest to deal with, and there are no
answers yet. Clipper products would be exportable with a license, although
other countries may try to keep them out. (Nobody asked questions about
changes in the rules governing export of non-Clipper encryption.) Other
nations would not participate in the escrow system, nor, presumably, would
they be allowed to buy the black boxes. E.G., if the British intercepted an
IRA communication that appeared to be encrypted with Clipper, and came to
the FBI for help, the anticipated escrow system would not allow the FBI to
get the key from the escrow agents.
==================PROPOSED PROCEDURES
AUTHORIZATION PROCEDURES FOR RELEASE OF ENCRYPTION KEY
COMPONENTS IN CONJUNCTION WITH INTERCEPTS PURSUANT TO TITLE III
The following are the procedures for the release of escrowed key
components in conjunction with lawfully authorized interception of
communications encrypted with a key-escrow encryption method. These
procedures cover all electronic surveillance conducted pursuant to Title
III of the omnibus Crime Control and Safe Streets Act of 1968, as amended
(Title III), Title 18, United States Code, Section 2510 et seq.
1) In each case there shall be a legal authorization for the
interception of wire and/or electronic communications.
2) All electronic surveillance court orders under Title III shall
contain provisions authorizing after-the-fact minimization, pursuant to 18
U.S.C. 2518(5), permitting the interception and retention of coded
communications, including encrypted communications.
3) In the event that federal law enforcement agents discover during
the course of any lawfully authorized interception that communications
encrypted with a key escrow encryption method are being utilized, they may
obtain a certification from the investigative agency conducting th