19 March 1998
The New York Times Online, Cybertimes
WASHINGTON The Federal Bureau of Investigation, at least temporarily, has joined the White House retreat from legislation to give law enforcers access to encrypted computer data and communications, a Justice Department official told Congress on Tuesday.
Robert S. Litt, principal associate deputy attorney general, told a subcommittee of the Senate Judiciary Committee that the Clinton administration instead is pursuing an "intensive dialogue" between industry and law enforcement to try and find a cooperative solution to the debate that has pitted the FBI and the National Security Agency against the high-tech industry and a long list of special interest groups concerned about free speech and privacy issues.
"We are all looking at this point not to impose mandatory legislation and will work cooperatively with industry to find whatever solutions are available," Litt said.
Asked by Senator Russell D. Feingold, a Wisconsin Democrat, if he was representing the FBI position as well, Litt said, "Yes, sir."
It was the first definitive indication that the White House has reined in, at least temporarily, a strong lobbying effort by the FBI's director, Louis B. Freeh, for legislation to establish a system requiring that the "spare keys" to all scrambled communications be filed with a third party so law enforcement, with the proper court authorization, can gain immediate access to encrypted data. Separately, the White House had backed a voluntary key recovery plan.
But Litt did emphasize repeatedly in his testimony that the shift represents the administration's and FBI's position "at this time." That would likely change quickly if pro-encryption forces move forward with legislation in the House to ban any type of key recovery mandate.
Senator John Ashcroft, a Missouri Republican who is chairman of the subcommittee on the Constitution, said "consistency has not been the hallmark of the administration in terms of this and that's fine."
"But while we're in this negotiating posture I would hope that they would maintain an openness to a variety of approaches because I'm certainly not going to agree to any approach until I can be assured both the free speech and privacy issues are protected."
Barry Smith, an FBI supervisory agent who played a role in getting a mandatory key recovery bill passed by the House Intelligence Committee last year, said "the objective of law enforcement is to have technical solutions to our concerns."
"If we can sit down with industry and reach a technical solution to law enforcement's public safety issues on a voluntary basis, we are happy to do that," he said.
Freeh has insisted that without the technical ability to quickly recover encrypted communications, law enforcers in the digital age will be unable to catch or prosecute terrorists, drug dealers and child predators who are increasingly using uncrackable codes to hide their crimes.
But opponents of key recovery argue that requiring Americans to file spare keys to their encrypted messages is an unconstitutional violation of privacy and free speech rights. They compare it to having to keep a spare key to your house on file at the local police station, or to government installing surveillance cameras in homes with the promise that they won't turn them on unless it is necessary to investigate a crime.
"If you ever want to talk about the proverbial fishing expedition, this is it," said Richard Epstein, a professor at the University of Chicago Law School and one of five witnesses from a new coalition fighting encryption controls, Americans for Computer Privacy.
The alliance announced two weeks ago that it will launch a multimillion dollar campaign to educate the public about the need for unregulated strong encryption. The same day it launched its campaign, Vice President Al Gore wrote to Senator Tom Daschle, the Democratic leader, to say the administration wanted to pursue a cooperative dialogue with industry rather than legislation.
Litt reiterated that call at the hearing.
"The Administration is not wedded to key recovery, or any single technological approach," he said. "We are flexible, provided that the resulting solutions and arrangements preserve the nation's ability to protect the public safety and defend our national security."
Wayne Madsen with the Electronic Privacy Information Center said he was skeptical that the talk of a cooperative dialogue represented any real shift by the administration in the encryption debate.
"My feeling is it's still the same old policy wrapped up in different wrapping paper," Madsen said.