Communciations Revolution
Program #10-94: "Crime and Chaos"
KPFA Radio - September 6, 1994


Panelists: Kent Walker,Whitfield Diffie, and Barbara Simons
Project Director and Host: Jude Thilman
Executive Producer: Bari Scott
Associate Producer: Carol Klinger
Managing Editor: John Rieger
Associate Editor: Claire Schoen
Technical Consultant: Tim Pozar
Feature Producer: Matt Binder


Introduction by Jude Thilman

Electronic eavesdropping and digital cryptography. We're talking about secret
codes, law enforcement, and your privacy. I'm Jude Thilman and this is "The
Communications Revolution". Are you willing to risk terrorist attack, just to
protect your privacy from government intrusion? Isn't a little wiretapping
worth it, if they can prevent a World Trade Center bombing? Federal agencies
like the FBI want easy access to your telephone and computer
communications--through digital wiretaps--in order to catch criminals. We'll
hear opinions for and against this new electronic eavesdropping as we're joined
today from Monitor Radio in Washington by Kent Walker, who is with the
Department of Justice where he oversees the committee in charge of the
administration's encryption proposal. Here in the Berkeley studios of KPFA we
have cryptography pioneer, Whitfield Diffie, distinguished engineer at Sun
Microsystems and best known for his 1975 discovery of the concept of public key
cryptography. And also with us is Barbara Simons who chairs the Association for
Computing Machinery's U.S Public Policy Committee studying cryptography and is
with IBM. We begin our discussion of this somewhat foreboding subject after
this report from producer Matt Binder.

Feature by Matt Binder
	
(John Gotti) : "Hello...Hello?...Hey punk, where'd you go?"  (Pete):  "I was
a..." ." [more bits of conversation under narration] (Gotti):  "...all this
trouble you're putting us through? ...Don't see no body.  Come straight out to
my house."  (Pete): "All right."  (Gotti): "Hey, Pete.  Don't see no body, or
talk to no body.  Just come right to my house, now."  (Pete): "All right."

In 1992, John Gotti, one of the most ruthless Mafia bosses in the country, was
finally brought to justice. Wiretapping and other forms of electronic
surveillance provided the bulk of the evidence against Gotti, who was convicted
of four counts of conspiracy to commit murder, two counts of racketeering, and
assorted other crimes.  Law enforcement agencies conduct about a thousand
court-approved wiretaps each year. But a new technology may soon make
wiretapping impossible. Cryptography, or the use of secret codes, has broken
out of the realm of spy versus spy, and into the hands of consumers.

(Paul Barth): "And here I go pushing my "secure" button, it takes ten seconds
to do a key exchange.."

Paul Barth, of AT&T, demonstrates his company's encryption phone model 3600, a
one thousand dollar portable device that plugs into any phone outlet.
(Paul Barth): "...and my voice is being encrypted over this particular
telephone line."

The device uses a secret key to scramble Barth's voice. The person at the other
end, using a similar phone with the same secret key, hears normal conversation.
But an eavesdropper hears only hiss. (We hear the hiss) Barth claims the
encryption is so good, that without the key it would take a super computer a
century to unscramble it. If John Gotti, and everyone he talked to, had been
using devices like this, he might still be a free man today.

(Jim Kallstrom): "Absolutely. Without question.

Jim Kallstrom is the FBI's wiretap expert.

(Jim Kallstrom): "Encryption is a double-edged sword. People in high tech
companies that want to protect patented developments, citizens doing banking,
doing medical records, all that stuff should be protected, and we think
citizens ought to have very high grade encryption if they so desire it.
However, someone who's about to blow up a building, some who's about to shoot
down an airplane, should not have the protection that encryption would allow
them."

Fortunately, for the F.B.I., AT&T has decided to use a different cryptography
chip, called the Clipper chip, in its future encryption phones. Designed in
secret by the National Security Agency, Clipper has a special feature called
"key escrow". The government keeps a copy of the keys. Then, with a court
order, they use the keys when they wiretap an encryption phone. Clipper is
intended to head off a feared explosion of commercial cryptography products
that would leave law enforcement no way to decipher intercepted messages.

(Eric Hughes): "The law enforcement community in this country is certainly
using scare tactics about public safety to promulgate their views."

Eric Hughes is with a group called Cyperpunks, part of a broad coalition of
high-tech privacy groups which opposes the Clipper initiative. Hughes says
giving the government the keys to our conversations is an invitation to abuse.

(Eric Hughes): " Now it would be a very bad idea in public policy to require
that the telecommunications infrastructure be able to be turned into a spy
infrastructure at executive order. That creates a center of power which will
attract people who wish to abuse a concentration of power like that."

The Abuse of government wiretap power in this country has ample precedent... In
a shocking 1974 Senate hearing, George McGovern questioned former Attorney
General Eliot Richardson about a series of wiretaps, in a secret government
program called COINTELPRO.

(George McGovern): "Are you really saying then, Mr. Richardson, that you could
justify the tapping of journalist's telephones if it were felt that they might
print certain information that bore on sensitive negotiations?"

Journalist, political activist, and even Congress members were wiretapped as
part of COINTELPRO, a joint Nixon-J. Edgar Hoover program that Attorney General
Richardson says he reluctantly supported.

(Richardson): "I would not concede that those taps were illegal."

But as profound as these privacy concerns are, it's business interests that are
having the most effect on the Clipper debate. The federal government has long
classified encryption products as munitions, and prohibits most exports.
Congresswoman Maria Cantwell, whose district includes the headquarters of the
huge Microsoft corporation, says the Clipper initiative is inhibiting the sale
of U.S.-made computer software.

Maria Cantwell): "Obviously our competitive edge would be hampered by selling a
product from the United States that said,"Government Inside." With the software
industry, they're estimating that about 6 to 9 billion dollars are lost
annually, or could be lost annually, from software sales with encryption
capabilities in which people may buy other products from foreign companies as
opposed to our own products."


Vice President Al Gore recently wrote Cantwell promising that the
administration will consider changing the export laws, and she believes that
the government will soon drop the Clipper initiative. But Sharon Webb, Director
of legislative Affairs for the National Computer Security Association
disagrees. Webb says the National Security agency is still threatening
companies with the loss of government contracts if they don't use Clipper. And
she says they've even tried to strong-arm members of Congress.

(Sharon Webb): "We were told by two of the committee members that NSA had said
that 'if you don't come around to our way of thinking on this particular issue,
then we would potentially withhold any more black briefings from you. And
that's a very serious thing that they're holding over their head because these
members rely on their black briefings in order  to be up on national and
international events."

In a written response to Webb's charges, the NSA denied that it has pressured
anyone to support Clipper. Meanwhile, a high-tech popular movement is trying to
spread encryption before the government restricts it or outlaws it. Phil
Zimmerman wrote a program called PGP which encrypts E-mail, and like a
modern-day Johnny Appleseed, he gives it away free on the Internet.

(Phil Zimmerman): "Generally, technology advances are a windfall for law
enforcement. This is one time where a technology advance is a windfall for the
average person. Cryptography. Now we didn't complain too much when technology
advances were a windfall for the authorities, now we're just asking that we be
able to use this technology advance for the protection of our civil
liberties."

The Clipper debate uncovers a deep fault line in the American political psyche,
on one side, persona privacy, on the other, public safety. If unfettered
encryption is allowed in this country, government abuses like COINTELPRO will
be much less likely, but criminals like John Gotti may be able to operate with
impunity.

(Sharon Webb): "I can't imagine, nor can any of my colleagues, a drug dealer
going into a phone store and buying a phone that says "Department of Justice
Approved."
(Kallstrom): "I think because someone called the plumbers, back 25 years ago,
chose to break the law, chose to do things that were not legal, is not a reason
to not have a balanced, well thought policy on something that's gonna have an
impact on the ability for us to protect the citizens of this country."
(Phil Zimmerman): "If they put video cameras in all of our houses and promise
to only turn on those cameras when they think that we've done something wrong,
they could argue that such a move would reduce crime(and I'm sure that it would
reduce crime.) But do we want to live in a society where we have to pay that
price in civil liberties to reduce crime."

For "The Communications Revolution", I'm Matt Binder.

*****

Host Jude Thilman: Are we really looking at an attempt to create a balanced,
well thought out policy on preventing crime through electronic
eavesdropping--or something else? Kent Walker, you're with the Justice
Department, the ball is in your court. Explain the administration's proposal on
encryption and why we all should accept it as reasonable.

Kent Walker: Key escrow tries to balance the two competing interests that your
report outlined. We recognize, of course, that encryption is important for
American security as they conduct more and more transactions and conversations
through the wires. At the same time, electronic surveillance is vitally
important to law enforcement. There aren't many cases, under a thousand a year,
 and it is an option of last resort. But in those few cases in which it is
used, it is vital. And those typically are the most important cases, terrorist
activity, the widespread organized crime activity and that's what we really
hope to get at and maintain our ability to get at. It's important to emphasize
that the Clipper chip proposal, the key escrow idea, is not an expansion of the
government's ability to do electronic surveillance, it attempts to maintain the
status quo. It's not mandatory, it's not required, it's an optional approach
that by developing a system with careful safeguards, both judicial and the
normal judicial review of the original wiretap application and then the split
key approach which restricts law enforcement's ability to get any penetration
into encryption unless it is complied with very rigorous requirements. We hope
to balance the two interests that are at stake here and we think we have done
that. 

Host: Whit Diffie, you have a long history of working on cryptography. Are your
fears assuaged by Kent Walker's reassurances?

Whitfield Diffie: Well I think my first question is, 'Where is the evidence
that there is any need for this?' In the director of the F.B.I, Freeh's
testimony before the Senate in the spring, he cited a hundred seventy four
cases of convictions based on electronic surveillance. And he very carefully
said electronic surveillance. The word wiretap occurs only once in the report
when he mentions in his testimony the wiretap report. He doesn't, you know, we
understand of course that they may say in certain cases, 'We had plea bargains,
we had crimes that were prevented, and we can't tell you the details of these'.
But convictions occur in public trials, and he mentions a hundred and seventy
four convictions without ever naming a single court defendant docket number,
etcetera. And one case that he does mention, I recognized, and that one was
very clearly a room bug and  I went and checked the St. Louis Post Dispatch
reports on the trial, I haven't actually looked at the trial transcripts.  So I
think there is no question that two thirds of the electronic surveillances 
authorized every year are wiretaps. But it seems much harder to get the
evidence on how many of those wiretaps are actually used in trials whether
that's really a very effective technique. 

Host: Kent Walker, how many actually are used in trials and how many cases are
cracked specifically because of wiretaps?

KW: My sense is, and we don't have numbers on it because of course very
difficult to gather the numbers from local police departments across the
country, is that there are a significant number. Moreover, it's important to
recognize that it's not just law enforcement that is at stake but national
security activity and counter-terrorist activity. Obviously we're not at
liberty to disclose  some of those matters. Moreover, it's not as though there
is a huge up front cost here that we are asking society to bear. This is a
voluntary initiative we're hoping by the government purchasing many of these
devices, or however they are ultimately embodied, for our own purposes to
encode our own conversations that we want to keep private, that we will reduce
the cost of the options and make it attractive to individuals out in the
marketplace. 

Host: Let's stay with effectiveness for one second. I do want to bring Barbara
Simons in but I have to come back to 'why would law enforcement, F.B.I.,
D.O.J., anybody care about giving it up, giving up a tool that isn't effective
in fighting crime?

WD: That's one thing I would very much like to know and I'd like to ask Kent if
these numbers are hard to get at, presumably whoever wrote the director's
testimony  had solid information underlying the  claim on page fourteen,
conviction of two federal judges, page fourteen two Florida state judges
convicted; same page, five attorneys convicted. Next page,...[KW attempting to
interject]...sixty five...convictions...next page seventy nine individuals
convicted. These are convictions, where were these convictions; who was
convicted?

Host: Kent Walker?

KW: I don't have the director's testimony in front of me, but the larger point
is that there are a large number of wire tap cases. Now the testimony that the
director gave was focused on the incidence of encryption and other sorts of
barriers that the F.B.I was encountering. Obviously a respected member of  the
cryptography community would be the first to acknowledge cryptography is on the
upswing, we're still on the flat end of the hockey stick and I think that
everybody in the field thinks there is going to be a tremendous surge in the
years to come. We're trying to get ahead of that wave.

Host: Barbara Simons, you're with the Association for Computing Machinery. What
do you think  of the government's proposal in general and if you could address
the cost factor that Kent Walker brings up, that it's a cheap thing.

Barbara Simons: Well, actually I would like to address something slightly
different which is my major concern that the Clipper proposal is really a major
policy proposal and what is happening is that major policy decisions are being
made and will continue to be made that are going to have impact on our society
for the foreseeable future. These proposals are not being publicly debated,
most citizens don't know they are even being made, and don't understand the
technological  ramifications of it. That's actually one reason why we decided
to get involved with this because we felt as a professional society one of our
roles was to try and educate both the citizenry and the policy makers as to the
technological aspects of these proposals. One of the things that disturbs me
personally and also we have stated this in a statement we have issued on
Clipper; we felt that there was not adequate public debate on this issue prior
to the proposal being made that involved the large mass of the public. Clearly,
people in the technological community knew what was going on, but most people
don't. 

Host: Well, we're having the public debate now. A lot of listeners would say,
'It doesn't matter what we do or say, Whit Diffie, the government can bug us,
they've been doing it for thirty years at least. We're not going to be
protected no matter what.' How do you respond to that?

WD: There is certainly ample evidence that our input into this public debate is
not going to have any effect. Commentary on the proposed federal standard which
is now federal information processing standard 185, was three hundred eighteen
comments against and two for and they didn't even put it out for re-comment or
few tiny technical changes to references and  things in the final document. 

Host: So there is concern that this isn't maintaining the status quo as Kent
Walker suggested earlier but it's actually expanding  government powers to...

WD: Oh, I think government capacity to wire tap is growing quite independent of
any of these programs. Wiretaps are now much better than they used to be for
two important reasons. The first is that people do a lot more talking on the
phone. Second place, modern telephone signaling gives you real time information
about who is calling. So you  have much better ability to exploit the
information you get out of wiretaps. A lot of the information you get out of
telephone surveillance is just from what are called  the "trap and trace and
PEN register", information about who called whom and that is something
encryption doesn't invade.

Host: Kent Walker?

KW: That's absolutely right. The encryption would have no effect one way or
another. The fundamental point here is that there are stronger safeguards
against a government wiretap than there are against any other search and
seizure recognized by the law. It is easier to break down someone's front door
and search their house than it is to wiretap their phone. To wiretap a phone
you must show you have tried all other means of pursuing an investigation and
those have proven fruitless. You must show you are minimizing the conversations
and not picking up extraneous matters that are not related to criminal conduct
and you must show that there is criminal activity afoot. Those are very strong
requirements and they are complied with. 

Host: So you are suggesting that there are stronger safeguards today in
obtaining a court order to wiretap than there was back when the F.B.I
wiretapped Martin Luther King, Jr.?

KW: Absolutely. The 1968, Title 3 came in and established a very rigorous set
of requirements following a Supreme Court case that has since that time
governed the government's involvement with wiretaps.

WD: That is it came in four years before the administration used electronic
surveillance [of] the Democratic National Committee in its attempt to stay in
office. 

Host: Let me pick up on that point. Some political cynics say that the whole
government encryption proposal that's being especially fronted, if you will, by
the Department of Justice and the F.B.I. was really about the National Security
Agency wanting Clipper in order to be able to listen to other countries'
electronic communications. The example that I have heard recently was back
during World War II, the U.S. was able to bust German U-boat communications not
because of radar as they claimed but because they were able to read other
countries' relatively primitive  encryption of the time. What do you say to
that, Kent Walker, is this really about busting criminals or we trying to get
in on other countries' business. 

KW: It's really about both. Your point is absolutely right. Encryption is a
powerful weapon of war, probably second to the atomic bomb, it was the most
powerful weapon in our arsenal during the second World War. There are
legitimate national security reasons, in times of war and times of peace that
you might want to find out what hostile countries are up to, not just counter
terrorism but other kinds of hostile acts by foreign governments. That's right
but that doesn't mean that the law enforcement case is a false one, both are
important.

Host: But your calling it a powerful weapon of war suggests, Kent Walker, that
the N.S.A. and the government are not ready to reclassify it as not a munitions
such that U.S. businesses could indeed engage in trade, computer software
hardware  businesses could engage in international trade. What's your response
to that?

KW: We have said in response to some of the public input that we have recently
solicited and received that we would look carefully, as the Vice President has
outlined at the idea of having unclassified algorithms, ways of expressing this
in software so it would be easier for industry to export and perhaps looking at
the export controls that are in effect now. Those discussions are still going
on. 

Host: Barbara Simons?

BS: I'd like to go back to something Mr. Walker had said earlier about the
safety, the protections we currently have with Title 3 and other forms of
protection. As proposed, after the court wiretap expires for being able to read
traffic using Clipper, the key is supposed to be erased. That is correct, is it
not?

KW: Yes, the key would be in existence for only the period of the wiretap. Now
there are different technologies you can use to do that.

BS: So, I have a question for you because the Department of Justice explicitly
states, and I am quoting now, that they do not create and are not intended to
create any substantive rights for the individual intercepted through electronic
surveillance. In other words, these regulations about having them erased and
non-compliance with these procedures shall not provide the basis for any motion
to suppress or other objection to the introduction of electronic surveillance
evidence lawfully acquired. Could you please explain to me what that means?

KW: Sure. It basically means that the existing protections against exceeding
the scope of a wiretap warrant, that the wiretap not continue for more than
thirty, sixty or ninety days whatever it might be are sufficient to guarantee
precisely the rights that you've  talked about. 

BS: And if they are not adhered to then the individual who has been wiretapped
has no grounds for complaint. 

KW: No, they have exactly the same grounds for complaint as they do with the
conventional wiretap. They could move both to suppress the evidence, and move
as a violation of their civil rights. 

BS: Then why would not the Department of Justice say that if we do not adhere
to our own rules that the evidence will not be admissible?

KW: The Department of Justice wasn't seeking to expand the number of rights
available, they were seeking to maintain the status quo that is in existence.

BS: So in other words, they are not interested in having rules that would
clearly make evidence inadmissible if they do not adhere to their own rules and
regulations.

KW: I think  no one with  the Department of Justice will tell you that a
wiretap that is conducted beyond the scope of an authorizing warrant is legal
or admissible. 

BS: Then why don't they put that in writing?

KW: It is in writing. It's in Title 3. It's been good  law for twenty five
years and nothing in this proposal would change that. 

BS: Then what does the statement mean?

Host: We're going back and forth on safeguards. I think that the point to the
average listener is that safeguards whether in writing or not for a number of
decades the government has broken its own rules and gotten away with it. We
have strange bedfellows concerned about civil liberties in this particular
case. The ACLU has come out against the administration's proposal as well as
Rush Limbaugh from the right end of the political spectrum. Kent Walker, you
have to accept that the population doesn't trust that you won't abuse the
ability to eavesdrop on digital phone or computer communications. 

KW: There is clearly a libertarian streak to some who are critical of various
proposals to establish key escrow. It's reminiscent in some ways  of the
National Rifle Association  not wanting to ------

[interruption by Whit Duffie]

WD: ...There's a founding principle streak.

KW: Pardon me?

WD: There's a founding principle streak. We remember the 1790's and the Bill of
Rights.

KW: And the Bill of Rights and the Fourth Amendment, for example, seek to
balance the interest of the community in safeguarding against crime, terrorism
and national security with the rights of the individual.

Host: Let me get a sense of just how effective all this encryption really is.
We heard in our report at the beginning of the show  that the AT&T
representative claimed that their phone encryption currently without adopting
the administration's Clipper chip was so good it would take a super computer a
century to unscramble it. Now if that's true, maybe you could answer this Whit
Diffie, why would anybody care? If you can get that kind of private encryption
why do we care about the Clipper chip?

WD: Well, the problem in this area is setting standards. There are already too
many kinds of secure phones and for secure telephony to be really useful,
everybody has to have interoperable phones. In business, you constantly phone
people that you have never talked to before and have private conversations.
Standards are needed in order to meet that business need for secure
communications without prior, in effect, conspiratorial sort of planning. So,
it seems entirely possible that if you had a criminal conspiracy they  might
arrange to have compatible  secure phones and that might serve their purposes.
But the general purposes of business really need to be served by having a
national standard and preferably an international standard that everybody
trusts. 

Host: Who internationally is going to trust having an encryption code that the
U.S. government can break into? Isn't that an important consideration in the
international trade aspect of this??

KW: It's certainly an important issue. The general notion of key escrow
encryption is one that has been overseen by European countries. There was a
recent encryption conference several months ago in Germany, and several of our
European allies were interested in further exploring key escrow. 

WD: Well I heard that assessment of that conference from Dorothy Denning who
was there but as far as I could tell  I returned to a different conference that
took place in the same room at the same time. We heard the blunt statement by
the Germans that there was no question whatsoever of accepting a system that
was intended to let the Americans read the traffic. 

KW: What distinguishes  Clipper from the wider notion of key escrow is the
notion of key escrow which really seeks to balance law enforcement and national
security interests. Clipper is one particular embodiment of that concept but as
we said, we are looking into alternatives as well.

WD: I find that very interesting because if you look at a pure law enforcement
rationale for that, that's all true. If you look at a foreign intelligence
rationale then maintaining our foreign intelligence sources is a matter of
controlling technology transfer in the area of cryptography. Any sort of
international high grade cryptography tempered only by national escrow
capabilities is not going to serve our intelligence interest.

Host: Whit Diffie, just speaking is one of the pioneer discoverers of public
key cryptography. We also have with us Barbara Simons and Kent Walker. I'm Jude
Thilman, this is "The Communications Revolution".

*****

Host: We'd like to hear from you right now. Tell us what you think about
government control of encryption and electronic wire taps. You can join our
discussion with questions and comments by calling 1-800-848-2298. We'll be
right back.



[Music break]
Voice: "The Communications Revolution" is produced at KPFA, Pacifica Radio in
Berkeley with funds from the Telecommunications Trust established by the
California Public Utilities Commission. It's distributed by Pacifica National
Programming. Bari Scott is the Executive Producer, the Associate Producer is
Carol Klinger, the Managing Editor is John Rieger, the Associate Editor is
Claire Schoen. For cassette tape or written transcript of this program call the
Pacifica Radio Archive at 1-800-735-0230 and ask for "The Communications
Revolution" Program 10/94. This is "The Communications Revolution". 
*****
[Music and narration]
Voice: If you put information in a bank vault people can get to it by dynamite
or settling torches or artillery shells. But in cryptography it isn't like
that. It's now possible to place information beyond the collective efforts of
society. That has a lot of social implications, not all of them good. 

Host: Phil Zimmerman is the inventor of a privately distributed encryption
system called "Pretty Good Privacy". Is it really possible to place information
beyond the 'collective efforts' of society as he put it, not just your personal
medical information for example but also say the misdeeds of government
officials as well. It certainly does cut both ways. We're talking about new
electronic encryption and eavesdropping please join our discussion by calling
1-800-848-2298. You were saying earlier, Barbara Simons, that what concerns you
is a major policy proposal is being discussed, debated and decided on in
Washington without the average citizen's participation. What does the average
citizen really have to be concerned about in terms of government eavesdropping
or any of this encryption business. If  I'm not committing a crime, why care?

BS: You've raised a good point and this is something which I've often had to
discuss with people when they say, as you put it, 'Why should I care, what does
privacy mean to me, I'm a law abiding citizen and obviously there are issues
involving democratic processes and the ability to oppose government actions
which require access to privacy. As we all know, one of the first things to go 
in totalitarian states is privacy, the ability to meet without being observed
by the government. So, even though...and I am not suggesting there is any
intent on the government's part to move in that direction but what I am saying
what is very important for us to maintain the ability to have a form of privacy
for our democracy to be able to function. 

Host: And whether the current government is moving in that direction or not,
some future government might. Is that what you're suggesting?

BS: Precisely. There's no way that the current administration can make promises
that will hold for all future administrations. 

Host: Let's bring our listeners into this conversation. From Los Angeles, we're
joined by Penrose. Welcome to the program.

Caller #1: Hello how are you doing. I'm really glad you guys are discussing
this because I'm really concerned. I found out about the Clipper chip quite by
accident. I belong to a professional organization, The International
Interactive Communication Society, and it was only as a result of some of our
members working the information on the Internet and bringing it to our
attention of what a devastating effect that this Clipper chip would have on our
privacy and our personal interactions. I'm really concerned that we have
something in place to notify people when these kinds of things are being done
before they are passed and regulated and we get it as an aftermath and that we
can continue to enlighten people as to what they can do to find this
information and what steps they can take.

Host: Thank you very much for your call, Penrose. I'll take that as a
compliment to this program in trying to inform our listeners and consumers
about something that hasn't yet passed. But let me turn that into a question
about process. Do any of our guests know how close are we to having this
administration's proposal enacted?

KW: When we talk about enacting the proposal, there are various stages. The
government itself has always tried to use some of this technology because we
have confidential communications that we are seeking to protect. At the same
time, there has been extensive publicity around this; lead articles in the New
York Times, the Washington Post; we've had extensive meetings with people in
Congress. The ACM has submitted an extensive monograph on the subject. We're
continuing to meet with industry. There is the public input that Whit talked
about a moment ago. All of this, I think, has helped shape the future direction
of the program and the various government agencies involved are discussing
different ways in which it might have evolve, the different embodiments that
key escrow might take. 

Host: Kent Walker suggests there is plenty of public input. Do you agree with
that, both of you? Barbara Simons?

BS: First of all, let me just say something that I should have said at the
beginning of the program which is that when I express an opinion, it is,
generally speaking, my own and I am not speaking for ACM unless I specifically
state so. Having said that, my observation is that most people don't know
what's going on and I test it out on my family when I go to family gatherings
and I mention the word Clipper. My father knows about it because I have talked
with him about it but when I talk to cousins, aunts, and uncles they look at me
vacantly. Then I have to give a ten minute discussion about how encryption was
used in World War II and so on and so forth to bring them up to the point where
they can understand what the policy issues are.

Host: Whit Diffie?

WD: Well, I think that point is well taken because the story only appeared when
it did because of the investigative abilities of John Markoff of the New York
Times. It was announced by the White House the same day because he called and
asked them about the story and they knew their cover was blown. 

Host: So they weren't exactly advertising. From Washington, D.C., let's hear
from Jerome.

Caller #2: Good afternoon. I guess there is a dual concern. I've heard about
the Clipper chip previously and I can understand why the government might have
a need to be able to access some confidential calls for national security. But
I also, in trying to balance the situation, am having a problem with having
private communications going on by and in between citizens who really are not
up to anything illegal. Or there is nothing national security related involved
and with the government having the ability to listen in to those conversations
just negates the fact of having confidential communications. However, along
with that maybe if modern technology can develop someway so that when the
person who's using such a situation could possibly check back against the
government to be sure that the government is not eavesdropping on their
conversations., then maybe it would be okay. I don't know, I don't care for the
government's eavesdropping. 

Host: Well, thank you very much for your call, Jerome. It seems, Kent Walker,
that the question is directed to you. It would negate the law enforcement
aspect of eavesdropping if the person being eavesdropped on could tell you were
doing it. 

KW: Yes. If John Gotti knows he is being wiretapped, he is never going to say
much of interest. But, the larger point, again, is that we are sympathetic and
Congress has been sympathetic to Jerome's concerns. That's why law enforcement
on its own can't wiretap anybody without the approval of a federal judge who
has to review the showing that is made of criminal behavior that is actually
going on, serious felonies that are being committed, that the wiretapping is
necessary.

Host: I think some listeners would think that the prosecutors and law
enforcement officials are elbow to elbow with judges and they are buddies. They
play golf together, and the judge will routinely grant that on his or her
friend's request.

KW: If you've been  a federal prosecutor, you've lost enough motions to know
that is hardly the case. 

Host: From Los Angeles, let's hear from Claire. Welcome to the program.

Caller #3: I'm so grateful you have this program on. I wish it were three hours
long. I would like for my own information to have access to how to get this
"Pretty Good Privacy" invention of Zimmerman's. It sounds very intelligent and
necessary. First point to contributing to the program is that there is a book
by Bob Woodward that has been out for some years. It was a biography of Casey
when he was the head of the C.I.A and in there there's a lot of good
information about the NSA's long-standing ability to monitor even phone
conversations of foreign government's heads. I recommend that to anybody. I
find it odd that they are using as a justification the idea that the NSA does
not have that capability, when it has had it in place for years. So, I wonder
why that is being used. The American public seems to be manipulated very
cleverly like a bunch of kids at school camp by these secretive ways of hiding
information that they should be available to be debated by the public.

Host: Thank you very much for your call, Claire. Regarding  Phil Zimmerman's
"Pretty Good Privacy", I'm not sure we can get into espousing particular
encryption method in the course of this program, but it's a good opportunity to
remind our listeners that if they want to communicate with us here at the
Communications Revolution via E-mail, you can address us at KPFA@well.com or if
you want to continue this discussion after the show through the Internet if you
are on the Internet you can do so on our IRC channel by dialing in TRP10. Any
comments on Claire's remarks from our panelists?

KW: I take it that her suggestion was directed at me, that I was denying that
the United States has the ability to intercept foreign signals. That certainly
wasn't my intent. As I indicated there are certainly times you might want to do
just that. If Libya is in communication with terrorists or North Korea is
getting additional information on how to build nuclear weapons, we think they
are legitimate national security reasons why you might want to gather that kind
of data. 

Host: From Alameda we're joined by Ray. Welcome to the program.

Caller #4: Thank you. You know it's pretty well established that agencies like
the National Security Agency or maybe high powered industrial operations can
eavesdrop on phones and routinely monitor international telephone
communications. And we know there is something called the 'Back Door' where a
customer can purchase a computer and find out perhaps after the fact that means
that accessing information is also available to the provider of that computer,
as well as data retrieval and storage systems. But the question is, in what way
is this Clipper different from these ongoing operations of telephone and other
communications monitoring. How is it different from the 'Back Door' we have
heard described before?

Host: Thank you for your call and your question, Ray, and before we get an
answer to that let me remind our listeners that they can join this conversation
by calling 1-800-848-2298. Who wants to respond to that? Whit Diffie.

WD: Clipper improves things a bit. Clipper is a front door to communications. 

Host: That's the difference?

BS: And bear in mind, too, that there are forms of encryption available which
presumably can not be broken by the government. At least, there's no evidence
they can be, and so, therefore, if Clipper were to be made more or less
universal then that would-- as Kent has correctly said-- in some sense maintain
the status quo in that the government could continue listening in. 

KW: And the idea that  individuals can use another encryption on top of Clipper
or use an alternative to Clipper is one that the government fully accepts. It's
inherent in the nature of Clipper being a voluntary standard. But, the real
battle here is over the default option as Whit identified earlier. What we're
trying to avoid is a situation in which simply by picking up the telephone a
criminal automatically encrypts his or her calls. By and large, the criminals
who are smart enough to go to the extra trouble of using a different form of
encryption are smart enough to avoid detection. By and large, we only capture
the stupid criminals. 

WD: Well, one could easily get the impression that there was no law enforcement
for wiretaps. In the 1790's, at the time the Bill of Rights was written, you
could just walk off a few feet down the road and there were no tape recorders,
no shotgun microphones, and you were having a private conversation in a way
that nobody can be sure of today. 

Host: Our number again is 1-800-848-2298. We'll hear from Grass Valley. Ron,
welcome to the program.

Caller #5: Hello. I have a question. Someone mentioned the Bob Woodward Casey
book. There is a whole raft of books, the chronological history of criminal
activity by agencies like the National Security Agency and the F.B.I and
COINTELPRO,  the Golden Triangle drug trade,  the cocaine trade and
Iran-Contra, and the round up of the Japanese during the Second World War. The
federal government has been involved in more criminal activities than any other
government in the world, it has been for a longer time, and has been hooked in
with organized crime to a level where we shouldn't be listening to these
people. 

Host: Thank you for your call, John. It does bring up something you said
earlier, Kent Walker, about the dumb criminals versus the smart criminals.
Aren't the folks that are really at the top of the drug and terrorist rings of
the world going to be using smart encryption anyway?

KW: Again, Whit pointed out,  it's hard to believe that all of the Gambino
family were going to go out and get encryption so they can talk to each other.

Host: Why? If the government's listening in, I would. 

KW: The idea is that you really need encryption, you need security for calls to
outside people as you are expanding your ring. Right now, criminals could use
encryption or speak in code over the phone. By and large, they don't. 

Host: You think they are just dumb?

KW:  I think ...well it's a difficult question to answer. If more people did,
we would have a harder time stopping crime.

Host: Barbara Simons?

BS: Which leads me to one of the worst case scenarios that I've heard thrown
around which is the Clipper as a prelude to a law that would forbid other forms
of encryption. Now, again I am not claiming this is what the government intends
to do, but obviously one can't make statements about future governments or
future administrations.

Host: Whit Diffie?

WD: I think the failures of law enforcement today, if there are such failures
are not due to the limitations of the technical capacity. I argued that
wiretaps are getting better. I think there is no question that the advance in
electronics has made room bugs better, the DNA fingerprinting,  infrared scans
of people's faces to identify them, and the vast amount of stored video film.
There was an interesting note in Signal, the journal of the Armed Forces
Communications and Electronics Association last month to the effect that there
are databases of those films and that the software is just becoming available
to explore. I think that the advancing technology has been an outright windfall
to law enforcement, and yes, in ways that it isn't a crime. There's no evident
need for any of these measures, indeed, the Clipper part of it --- the figures
that have been quoted for it are modest, about ten or twenty million dollars a
year for several years. But, what's called the digital telephony bill which is
to build wiretapping capacity into the infrastructure of the telephone system
is an alleged half billion dollar proposal. The actual costs of these things
are never clear in advance. And whether that would be the best way to spend a
half billion dollars improving American law enforcement is hardly obvious.

BS: And my understanding is that the phone company  expects it to be a lot more
than half a billion dollars.

KW: Well, now of course we are off to a completely different topic. Digital
telephony which Congress is now considering goes to the entire usefulness of
all Federal and State wiretaps not just those that are encrypted in some way. 

Host: Another topic for another show. Let's bring another listener in from
Mendocino we have Michael. Before you begin, Michael, let me remind our
listeners that you can join "The Communications Revolution" by calling
1-800-848-2298. Welcome, Michael.

Caller #6: Before I called, nobody had really talked about a lot of it being  a
money issue in terms of how much money they are going to spend on this. Another
thing is it looks to me that the government is trying to monopolize the
encryption business by saying that other forms of encryption can't be exported.
That cuts down on a whole lot of things. It really sets it up so that they get
what they want by running the encryption in general, and they can get in any
time they want, so it doesn't really make much difference. I can't pre-encrypt
everything before I send it out on their Clipper. 

Host: Thank you for your call, Michael. Barbara Simons?

BS: Another issue is that if people have to use Clipper to communicate with the
government, which is what is being proposed in its voluntary standard; then
that means manufacturers will have to include Clipper in what they produce at
least for that purpose. Most manufacturers don't like to maintain two lines.
It's much more expensive and much more costly, so for example, it would be less
likely that other types of encryption would be included in devices that are
being manufactured. They also have to include Clipper.

Host: Earlier, our report at the beginning of this program, Barbara Simons said
that AT&T has a phone for consumers that will scramble your conversations quite
well, costs about a thousand dollars right now. I wonder if the price would
come down soon. Won't that still be on the market even if AT&T agrees to
incorporate the Clipper chip?

WD: Well, the original version would, which used previous federal encryption
standards which is believed to not have a trap door in it. They originally
issued it with an encryption standard in it, then withdrew that and then
re-issued it with trade secret algorithms of their own and another version with
the Clipper chip. 

Host: So, they did that without informing consumers at all.

WD: No, no , they informed consumers. The two won't interoperate.

Host: I see, separate systems. But at this point in time, consumers can for
their own personal communications get some pretty good encryption that the
government cannot break, is that right?

WD: Well it's always hard to judge. The tricky thing about cryptography is
knowing whether its any good or not, just as the tricky thing about wiretaps is
knowing whether they are there or not. You see, the courts and the Congress
have treated wiretaps pretty much as any other kind of search warrant. But, in
effect, any wiretap is a black bag job. It's always a search conducted in
secret. Whereas, there is a tradition in American --- I think back from 
British law, what's called the 'knock and confront' requirement that search
warrants are not in general, there can be exceptions, but in general you're not
supposed to serve them secretly. You confront the occupants and serve them the
warrant and search the place. 

KW: Whit's legal training may be better than my own but I'm not familiar with
that requirement. There is a federal requirement that you generally serve
search warrants during  the daylight hours so as not to awaken people in their
bed, but again, every requirement for a search warrant applies to a wiretap and
then some. Wiretaps are notoriously difficult to get, difficult to administer,
and cannot be continued for a long period of time. After they have concluded
there is a requirement that the results of a wiretap be turned over to the
people who are affected. 

WD: You yourself said if you don't tell the wiretap target about the wiretap do
you deny that search is normally visible to the people who are being searched?

KW: If you execute a search warrant and there is no one there, you are required
to serve an inventory of what you have found after the fact. Similarly with a
wiretap, you're required after the conclusion of that search, that wiretap to
serve an inventory, a transcript of what was overheard.

WD: What about the people who were wiretapped who were not the target
themselves. If I call somebody against whom there is a wiretap order, do I get
a report later that one of my calls was intercepted?

KW: My recollection is yes, but frankly it has been long enough since I have
directly participated in a wiretap that I wouldn't want to answer that for
certain.

Host: All right, let's bring another listener in. Our number is 1-800-848-2298.
We're discussing encryption, the ability to scramble your telephone or your
computer conversations, the ability to scramble the digital signal. Who gets to
break that code, who gets to listen in and eavesdrop. Anyone? The government?
Nobody? That's the question. What's your opinion. Noelle from Martinez, welcome
to the program

Caller #7: Yes, I'm really enjoying your program. I'm glad you're doing it.
Maybe you've already addressed this issue, I haven't been able to tune into the
radio for a few minutes. I hear a lot of talk of the federal government using
taps and the civil rights surrounding the use of them. I am very curious as to
what you have to say about private parties tapping other private parties in the
general society. We have a lot of gangs, a lot of computer hackers, some kind
of strange folks out there that like to do their own private surveillance of
other people. Is the federal government interested in helping people find out
if they are being monitored? I can see this being a growing situation. I just
wondered if you had any thoughts you could share.

KW: Absolutely. The whole area of computer crime which includes not only
computer hacking but what's called phone phreaking where people go in and
capture the phone system and use it for their own purposes tends to break into
electronic transactions, to move funds out of banks over the wires or intercept
other kinds of legitimate commercial transactions, it is a growing area of
concern to a lot of federal law enforcement. At the outset of the program I
said encryption and other kind of high tech safeguards like a digital signature
standard which allows you to authenticate, if you're buying something from a
mail order house, to prove to them it's really you on the other end of the line
are valuable tools to safeguard individual's privacy and avoid just the kind of
crime we are talking about. But unfortunately, criminals too take advantage of
new forms of technology.

BS: And in fact there has been a lot of discussion, as I am sure you are all
aware, of something called information superhighway. Many people feel that in
order for that to be really successful, people have to be able to use it with a
sense that the information they are sending is secure. So, again that raises
the question as to whether or not they would feel comfortable using it knowing
that the government might be able to read it. But I have another question I
would like to ask Kent, who has said repeatedly how difficult it is to get
court orders for doing wiretaps. I'm just curious. What percentage of the
F.B.I's requests for wiretaps is turned down?

KW: The F.B.I. has to pass its requests through the U.S Attorney's offices
which then present them to judges and before that time the Attorney's office
has to present it to the Department of Justice which goes through several
reviews of its own and then to judges. Some are weeded out at each stage of the
process, but I'm not sure how many.

BS: Do you know how many are turned down by judges?

KW: I don't know the number.

Host: Let's get one more caller in quickly. Ray in Fountain Valley. Hello Ray.

Caller #8: All this talk seems superfluous because the person already has the
power to seize the communications media in the United States. Executive Order
1095, which was President Bush's executive order is printed in the Federal
Register and these executive orders can be acted upon anytime the government
wishes.

BS: But the question is can you read, can you understand what is being said. If
what I send is encoded you might be able to get a hold of that but if you can't
read it, it really doesn't do you much good. 

Host: Whit Diffie, you are shaking your head.

WD: Oh, it's just that...it can't be a Bush order, its number is about two or
three thousand numbers too low. That would be back in the Eisenhower
administration.

Host: Answer your question, Ray?

Caller #8: But the point is that this order is still enforced, it's still
printed in the Federal Register  and it can be acted  upon anytime  by any
President. 

Host: Comes back to the original question. What do we care if they can do what
they want with impunity?

Caller #8: Exactly

Host: Thank you for your call, Ray.

WD: I think the critical thing is that we are in the process of moving our
society very largely into telecommunications channels. Lots of people spend
half the day talking to people we don't know and the other half sending E-mail
to people we don't know. If we do not act now to protect the privacy of
communications in the telecommunications society, then we're going to move into
a world where real privacy belongs only to the rich who can still enjoy the old
style of traveling to meet the people they want to talk to in person.

Host: And no one will be able to communicate with anyone else via phone or
computer, is that what you are suggesting?

WD: Well, not with the same assurance of privacy that you had when the country
was founded and you could merely walk out of earshot of other people and have a
private conversation. 

KW: But they will have the same assurance of privacy, in fact, heightened
assurance of privacy over what they have now. The alternative that the
government would actually buy and therefore subsidize unbreakable encryption,
let alone, let it be exported to foreign governments who made acting adverse to
the interests of U.S. citizens, I think would be irresponsible government
policy.

BS: But they did that with D.E.S. 

Host: All right, we are almost out of time. The last couple of little words go
to Barbara Simons. Our thanks to you, our thanks to everyone who tried to call
in as well as everyone who did call in to the program. My guests have been Whit
Diffie, Barbara Simons and Kent Walker. Our thanks to Monitor Radio with their
usual kind assistance and a special thanks to National Public Radio for archive
material used in today's show. Join us again next time. I'm Jude Thilman for
"The Communications Revolution".


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