22 March 1998

Date: Sat, 21 Mar 1998 12:50:59 -0500
From: Stewart Baker <sbaker@steptoe.com>
To: ukcrypto <ukcrypto@maillist.ox.ac.uk>
Subject: Re[2]: FBI Changes Tack? 

The FBI has not changed its goals.  It has changed tactics after concluding that
it is unlikely to get the kind of legislation it wants this year from this 
Congress.  So it has agreed that it will not seek legislation -- that it could 
not get this year anyway -- and will instead engage in a dialogue with industry 
for the next two months.  What I find significant about Bob Litt's testimony is 
that the Justice Department seems to be setting the stage for supporting Louis 
Freeh's call for domestic controls on encryption.  That won't happen unless the 
dialogue fails (still the most likely outcome), but in the long run it could 
widen the rift within the Administration over domestic controls.  Apart from the
FBI's conclusion that its legislative proposal is in trouble, none of this is 
particularly good news for industry.


______________________________ Reply Separator _________________________________

Subject: Re: FBI Changes Tack? 
Author:  <ukcrypto@maillist.ox.ac.uk > at INTERNET
Date:    3/20/98 10:05 PM

Chris Sundt <c.sundt@x400.icl.co.uk> writes:
> [a big blob of uuencoded and-then-some encoded mail]
here is what he said when you unpick that:
Date: Sat, 21 Mar 98 00:00:17 +0000
Original-Encoded-Information-Types: Undefined 
Content-Identifier: 12208
From: "C Sundt" <c.sundt@x400.icl.co.uk> 
To: UKcrypto@maillist.ox.ac.uk
Importance: normal
Subject: FBI Changes Tack?
Mime-Version: 1.0
The following Reuters piece was passed to me by a journalist who 
called me to ask if it could have any impact on the UK position - I 
said that was a tough one t o answer as I didn't know what the UK 
position was! However, it does appear to s how the FBI changing tack.
Chris Sundt
All opinions are my own and do not represent in any way those of the 
company I work for.
Tuesday March 17, 9:16 pm Eastern Time
FBI changes tactics in U.S. encryption debate
By Aaron Pressman
WASHINGTON, March 17 (Reuters) - The FBI on Tuesday backed away from 
controversial legislation requiring data scrambling products sold in the 
United States to allow law enforcers secretly to crack any coded message. 
But instead of new laws, the bureau hopes voluntary concessions by 
manufacturers of encryption technology will give it the same capabilities, 
officials said.
The Federal Bureau of Investigation and the Clinton administration have 
long been at odds with high-tech companies, civil libertarians and Internet
users over regulation of encryption, an increasingly critical means of 
securing electronic commerce and communications over the Internet.
Encryption products use mathematical formulas to scramble information, such
as a credit card number or e-mail message sent over the Internet, and
render itunreadable without a password or software ``key.''
The FBI fears the proliferation of strong encryption will give criminals a 
powerful tool to thwart its investigations, according to Barry Smith, 
supervisory special agent in the FBI's Congressional affairs office.
Although FBI director Louis Freeh last year favored new laws to guarantee 
access to coded messages, Smith said the bureau is now backing Vice 
President Al Gore's renewed dialogue with industry to find a mutually 
acceptable approach.
``Law enforcement is concerned that we have the technical capability under 
strict legal procedures to gain access to the plain text of criminally 
related communications or electronically stored data,'' Smith said in a
telephone interview.
``If industry provides us those technical solutions to address our public 
safety needs in the area encrypted communications and encrypted stored 
data, that's fine,'' he added. ``Then there's really no need for a 
legislative solution.''
But Smith added that if Congress considers legislation moving in the other 
direction, the FBI might renew its lobbying campaign.
A bill authored by Virginia Republican Rep. Bob Goodlatte would 
dramatically ease strict export limits on encryption while forbidding
certain types of mandatory law enforcement access. The bill was approved in vari
ous versions by five House committees last year and and could be voted 
on by the full House in a few months.
``If legislative action continues to move forward that threatens public 
safety and national security, obviously everyone will have to reassess 
where we are,'' Smith said.
Industry officials said the renewed dialogue was unlikely to resolve the 
historic split over encryption in the high-tech industry between software 
and hardware companies.
Hardware companies including IBM Corp (IBM - news) and Hewlett-Packard (HWP
- news) have worked closely with the administration while software firms
like Microsoft (MSFT - news) and Netscape Communications (NSCP - news) have 
opposed the administration.
``IBM has advocated a dialogue for some time between government and 
industry,'' IBM public policy director Aaron Cross said. Commercial 
solutions might be available to meet the needs both of customers and law
enforcement, Cross said.
Cross also urged the administration to ``take the idea of any form of 
domestic control off the table once and for all.''
Software firms and privacy advocates worried that the latest negotiations 
would do little to address their concerns.
``There is nothing new here and the stalemate isn't going to be broken with
so many players left out,'' one software lobbyist who declined to be
identified said.
Earlier on Tuesday, principal associate deputy attorney general Robert Litt
told a Senate subcommittee the administration was not seeking legislation
to regulate domestic use of encryption.
``We are not looking for any mandatory controls domestically at this 
time,'' Litt told members of the Judiciary Committee's Constitution, 
Federalism and Property Rights Subcommittee.
But Litt staked out the FBI's position that such legislation would be 
permitted by the U.S. Constitution.
Two top legal scholars, Kathleen Sullivan of Stanford University and 
Richard Epstein of the University of Chicago, opposed Litt's 
They told lawmakers legislation backed by the FBI would likely violate the 
First Amendment's free speech clause, the Fourth Amendment's search and 
seizure provisions and the Fifth Amendment's limit on self-incrimination.

See more of Robert Litt's testimony at: http://jya.com/doj031798.htm And another news report: http://jya.com/doj031898.htm