18 March 1998

    Date: Tue, 17 Mar 1998 20:53:53 -0500
    To: cryptography@c2.net
    From: Alan Davidson <abd@cdt.org>
    Subject: Some Notes on Today's Senate Hearings

    For those interested, here are some notes on today's Senate hearings on
    encryption and critical infrastructures.

    	-- Alan

    Alan Davidson, Staff Counsel                 202.637.9800 (v)
    Center for Democracy and Technology          202.637.0968 (f)
    1634 Eye St. NW, Suite 1100                  <abd@cdt.org>
    Washington, DC 20006                         PGP key via finger

    (1) Legal Scholars Argue Encryption Controls Unconstitutional;
    Administration Backs Off Domestic Controls (For Now)

    The Department of Justice and constitutional experts presented dramatically
    different views of the Bill of Rights in today's Senate Judiciary
    subcommittee hearing on encryption. While the DOJ defended the
    constitutionality of domestic encryption controls, two leading legal
    scholars presented a sweeping assessment of how domestic controls violate
    the protections of the First, Fourth, and Fifth Amendments. A RealAudio
    transcript of the hearing before Senator Ashcroft's Constitution
    Subcommittee is available at http://www.computerprivacy.org

    DOJ representative Robert Litt testified that as a matter of official
    policy the Administration is "not looking for any mandatory controls
    domestically at this time." This policy apparently applies to the FBI as well.
    (For an interesting aside, see today's Reuters story on the hearing: "The bureau
    hopes voluntary concessions by manufacturers of encryption technology will
    give it the same capabilities [as legislation], officials said." --
    available at http://www.crypto.com)  Litt went on to provide a chilling
    outline of why the Administration believes criminalization of
    non-recoverable encryption would be constitutional.

    Later in the hearing, leading constitutional scholars Richard Epstein of
    the University of Chicago and Kathleen Sullivan of Stanford testified that
    key recovery of the type contemplated by the FBI and Clinton Administration
    is inconsistent with fundamental free expression and privacy rights
    embodied in the Bill of Rights. While falling short of calling encryption
    controls clearly unconstitutional under current Supreme Court doctrine,
    Epstein and Sullivan presented a broad Constitutional case against
    encryption controls, based on:

    * First Amendment principles prohibiting bans on an entire medium of
    speech, like encryption; protecting anonymous speech; and protecting the
    speech interest in publishing encryption source code.

    * Fourth Amendment protections prohibiting the generalized seizure created
    by key recovery without appropriate legal process.

    * Fifth Amendment protections protecting against self-incrimination
    (implicated by the compelled production of key information); and
    prohibiting uncompensated "takings" like those created by the additional
    risks and costs imposed on users by key recovery.

    Attorney Cindy Cohn, lead counsel in Professor Dan Bernstein's challenge to
    US export controls on encryption, also testified on the first amendment
    interests that have been recognized in encryption source code. See
    http://www.eff.org/ for more details. The testimony of Professors Sullivan
    and Epstein is available through CDT's Web site at http://www.cdt.org/crypto

    (2) Sam Nunn a Friend to Encryption Advocates?

    Also in the Senate Judiciary Committee today, Senator Kyl's Technology
    Subcommittee held hearings on "Protecting America's Critical
    Infrastructures:  The new policy directive".  As expected, Senators Kyl and
    Feinstein used the hearing as an opportunity to call for the development
    and deployment of greater surveillance technologies for the information
    infrastructure.

    Danny Weitzner of CDT, who attended the hearing, notes that encryption
    advocates may have "found a new friend" in ex-Senator Sam Nunn, who now
    co-chairs a new critical infrastructure protection advisory group. Nunn
    testified that it is vital that the current stalemate over encryption
    policy be resolved soon because: 1) strong encryption is critical to the
    security of domestic infrastructures; and 2) failure to resolve the
    deadlock between government and industry has lead to such a high level of
    mistrust by industry that it is difficult to make any progress on any other
    infrastructure protection issues since those issues require a high degree
    of cooperation.

    [Added by JYA:]

    [Congressional Record: March 17, 1998 (Digest)]

                                                Tuesday, March 17, 1998

                                  Daily Digest

                                     Senate

    Committee Meetings

    PRIVACY IN THE DIGITAL AGE
    Committee on the Judiciary: Subcommittee on Constitution, Federalism,
    and Property Rights concluded hearings to examine the use of encryption
    and mandatory access in digital communications, focusing on proposals
    to balance privacy rights with law enforcement concerns, after
    receiving testimony from Representative Goodlatte; Robert S. Litt,
    Deputy Assistant Attorney General, Department of Justice; James J.
    Fotis, Law Enforcement Alliance of America, Falls Church, Virginia;
    Thomas Parenty, SyBase, Inc., Emeryville, California, Kathleen M.
    Sullivan, Stanford Law School, Stanford, California, and Richard A.
    Epstein, University of Chicago Law School, Chicago, Illinois, all on
    behalf of Americans for Computer Privacy; Bill Weidemann, RedCreek
    Communications, Newark, California; Cindy A. Cohn, McGlashan and
    Sarrail, San Mateo, California; and Tim D. Casey, MCI Communications,
    Washington, D.C.

    CRITICAL INFRASTRUCTURE PROTECTION
    Committee on the Judiciary: Subcommittee on Technology, Terrorism, and
    Government Information resumed hearings to examine the need for a
    national strategy and policies to protect the critical infrastructures
    of the United States, receiving testimony from former Senator Nunn and
    Jamie S. Gorelick, each a Co-Chair of the Advisory Committee to the
    President's Commission on Critical Infrastructure Protection; and Lt.
    Gen. David J. Kelley, Director, and Brig. Gen. James Hylton, Director
    of Operations, both of the Defense Information Systems Agency,
    Department of Defense.
      Hearings were recessed subject to call.