High Technology and the Law A Legal Perspective on the Open Systems Industry Strong Crypto, Weak Liberties

The U.S. Government is bugged, blinds.” So far, the Clipper chip has won little support from the manufacturers so to speak, about the future whom the feds hope will support it. of wiretapping. A Mandate to Eavesdrop Not content to have a back door into the devices that originate communications, the government also wants to build its monitoring capability into the network itself. In the past, monitoring of phone calls has involved attaching a device to the wire; the Digital Telephony Act, he Federal Bureau of Investiga- Meanwhile, U.S. software companies passed at the end of last year’s congres- tion (FBI) and the National Secu- are unable to compete in foreign markets sional session, awaits funding by this con- Trity Agency (NSA) have been agi- with companies that offer much stronger gress. This act would effectively permit tated for years that developments in digital encryption solutions in their products. Sun the FBI to flip a switch to listen to any communications and cryptography will Microsystems has taken to incorporating telephone call. Although warrants would close the door on the era when it was encryption utilities developed abroad in still be required, the possibilities for abuse easy for them to listen in on communica- products it manufactures overseas. are significant. tions. Thus, they have urged Congress Because no U.S. export is involved, Sun Last year, federal courts authorized and the executive branch to mount a avoids Zimmermann’s legal problems. fewer than 1,000 wiretaps nationwide, three-pronged attack by restricting pub- The feds also have been pushing var- and the FBI has not claimed that any of lic use of cryptography, asking manufac- ious versions of the Clipper chip. Installed these investigations were thwarted by turers voluntarily to insert a “back door” in voluntarily by manufacturers of telecom- encryption or the need to use traditional telecommunications devices, and requiring munications devices, the chip would means of eavesdropping. The FBI’s pro- a similar back door in the national tele- include software which would automati- posed implementation of the system phone network. cally transmit a copy of the key to any called for by the Digital Telephony Act As has been reported periodically in encrypted communication to the govern- would cost $500 million and would give this magazine, cryptography programs ment. The key would be split into two the agency the capability to monitor one such as Phil Zimmermann’s nearly parts, one of which would be held by the out of every 1,000 phone lines (in cer- unbreakable free software Pretty Good Treasury Department and the other half tain parts of the country, listening in on as Privacy (PGP) have been classified as by the National Institute for Standards and many as one of every 100 phone calls). “munitions” under federal export laws. Technology (NIST). The FBI would have Obviously, since many millions of phone Until January, when all charges against to obtain a warrant from a federal judge in calls are made in this country every day, him were dropped, Zimmermann, a con- order to reunite the two halves of the key the FBI’s new wiretap capability will far sultant in Boulder, CO, had been under and “unlock” a suspect’s communications. exceed the 1,000 wiretaps it actually per- investigation by a federal grand jury for However, both of the escrow agen- formed last year. almost two years because someone post- cies are part of the executive branch, as is Prophets of “technological determin- ed PGP to the Internet, where it was the FBI, and many civil libertarians believe ism” agree that human beings want to use downloaded by overseas users; this con- that abuse—deencryption of communi- new toys to the full extent of their capa- stitutes an illegal munitions export in the cations without a warrant—is likely. John bility. It can be expected that if Congress government’s view. Zimmermann says, “I Perry Barlow, cofounder of the Electron- funds the Telephony Act, we will see a think this raises First Amendment issues, ic Frontier Foundation, says, “Trusting the lot more wiretapping. because the only way to comply with the government with your privacy is like trust- When new technology is involved, law is not to publish at all.” ing a Peeping Tom with your window fear, uncertainty and doubt always seem By Jonathan Wallace to cloud the issue and keep policymak- ers and the public from spotting simple

62 UniForum’s ITSolutions FEBRUARY 1996 parallels. It took the Supreme Court 50 years to recognize that a movie is pro- ADVERTISING INDEX ADVERTISING SALES tected by the First Amendment just like a Advertiser Page # Inquiry # OFFICES play or a novel. In the 1980s, courts were AT&T Solutions...... 9 104 confused whether software, which was http://netlib.att.com BLAST, Inc...... 50 129 recognized to be copyrightable if stored Northwestern U.S. and Western Canada http://www.blast.com Charles Abrams (415) 621-6700 on disk, was protected if stored in ROM. Computer Technology Group...... 44 121 Charles Abrams and (415) 621-6760 fax The analogy that many don’t see in the Cornerstone Software, Inc...... 11 105 Associates http://www.corsof.com debate on wiretapping and civil liberties is 24 Ford St. Dickens Data Systems ...... 15 108 San Francisco, CA 94114 that it is as if the government is actually Ematek GmbH...... 37 119 asking you to deposit a copy of the key to Enhanced Software Technologies ...... 19 110 Southwestern U.S. http://www.estinc.com your house. These federal agencies want Pat Macsata (510) 888-1104 ENlighten Software ...... 29 115 R.W. Walker Co. (510) 888-0472 fax to be able to come in and take a look http://www.enlighten.sftw.com 22971 Sutro St., Ste. B around whenever they want, but they Hewlett-Packard Co...... 17 Hayward, CA 94541 promise they will get a warrant first. Can http://www.hp.com Hyde Co., The ...... 61 124 they be relied on to keep that promise? Midwestern U.S. and Central Canada http://www.spatch.com Thomas Fitzpatrick (708) 653-1611 The debate about cryptography is prej- Innovative Routines International, Inc...... 22 106 TF Marketing Associates (708) 653-1612 fax udiced by a perception that honest people Kernel Group, The...... 35 118 1496 County Farm Ct. don’t need to encrypt communications. MaxTech ...... 20 111 Wheaton, IL 60187 http://www.maxtech.com But the very reason that U.S. companies Mortice Kern Systems, Inc...... 13 107 New England and Eastern Canada are losing market share in Europe is that http://www.mks.com Mark Schelling (617) 769-8950 businesspeople do, in fact, want to Mortice Kern Systems, Inc...... 21 112 Hajar Associates (617) 769-8982 fax http://www.mks.com 49 Walpole St. encrypt sensitive data and communica- Open Systems Pavilion ...... Cover 2 Norwood, MA 02062 tions before sending them out over an Prentice Hall...... 51 125 insecure wire. We all have that same right. http://www.prenhall.com Mid-Atlantic U.S. ProSim...... 34 117 Phil Zimmermann says, “I should be able Barbara Best (908) 741-7744 Ross Technology ...... 23 113 Hajar Associates (908) 741-6823 fax to speak to you in Navajo if I wanted, Santa Cruz Operation, The ...... 27 114 569 River Rd. even if law enforcement can’t understand http://www.sco.com Fair Haven, NJ 07704 Santa Cruz Operation, The ...... 33 116 Navajo.” The ban on secure cryptography http://www.sco.com Southeastern U.S. is analogous to the government telling Santa Cruz Operation, The ...... Cover 4 128 Scott Rickles (770) 664-4567 you you must speak in loud, clear Eng- http://www.sco.com Ray Rickles & Co. (770) 740-1399 fax Software Group Ltd., The...... 55 126 lish in your living room, so it can eaves- 560 Jacaranda Ct. http://www.group.com Alpharetta, GA 30202 drop better. Specialix, Inc...... Cover 3 127 The FBI isn’t looking too good to con- http://www.specialix.com/specialix Europe UniForum Association...... 41, 59 Huson European Media gress and the public in the aftermath of http://www.uniforum.org the shoot-outs at Waco and Ruby Ridge. Gerald Rhoades-Brown 01784-469900 UniDirect...... 1 101 10/11 The Green Business 01784-469996 fax This situation currently provides the main Unisolutions Associates...... 61 123 http://www.unisol.com Centre hope that congress will not reach into the Unisys Corp...... 2-3 The Causeway, Staines public purse for the required $500 million http://www.unisys.com Middlesex, TW18 3AL, United Kingdom to build the FBI’s back door into the UNIX Review...... 45 122 http://www.mfi.com/unixrev/ Publisher’s Sales Office IT national telephone system. USENIX Association...... 43 120 Richard Shippee (408) 986-8840, http://www.usenix.org x17 UniForum’s IT Solutions (408) 986-1645 fax Jonathan Wallace is vice president and V-Systems, Inc...... 7 103 http://www.vsi.com 2901 Tasman Dr., #205 e-mail: general counsel of Pencom Systems, Inc., Santa Clara, CA 95054 [email protected] World Wide Web addresses of UniForum’s IT Solutions advertisers in New York City. He can be reached at are listed complimentarily each month. [email protected]. His colleague Mark Man- The ad index is published as a service. gan provided research for this article. The publisher assumes no liability for errors or omissions.

FEBRUARY 1996 UniForum’s ITSolutions 63