Fight over encryption moves to the trenches

With little hope that clarifying legislation will make it through Congress this year, consumer groups, industry lobbyists and the Federal Bureau of Investigation are digging in for an extended war over encryption -- the technology used for ensuring that data and communications remain private.

"We are in the trenches on all the issues," said James X. Dempsey, senior staff counsel for digital policy researcher Center for Democracy and Technology. "We -- and everyone else -- are fighting tooth and nail."

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The next day, U.S. Sen. Dianne Feinstein (D-Calif.) will bring together the computer industry's top CEOs and FBI Director Louis J. Freeh in an attempt to help the factions find common ground on a variety of encryption issues.

But despite the crypto confabs and back-room conferences, don't expect any major issues to be resolved soon, said policy analysts.

"We don't expect any (encryption) legislation to pass this year," said Dave Banisar, staff counsel for EPIC.

According to Banisar, the Clinton administration and its supporters stand ready to torpedo legislation that would liberalize crypto regulations. But members of Congress who want to relax those encryption controls could block restrictive bills.

"There is a balance of terror in Congress," said Banisar, referring to the situation of nuclear detente that prevents either side from using its weapons.

Perhaps it's the current crisis between India and Pakistan, but an aide to Sen. John Ashcroft used a similar analogy. "It's more like mutual assured destruction," said Bart Cleland, technology counsel for Ashcroft. "Both sides know that either side could stop any legislation they don't like."

The pro-encryption computer industry alliance Americans for Computer Privacy hopes that the discussions between the FBI's Freeh and the CEOs -- a stellar guest list expected to include Microsoft's Bill Gates, Sun Microsystem's Scott McNealy and Netscape's Jim Barksdale -- will break the ice that has stalled legislation.

New bill looks promising
A central part of the industry's push is the newest piece of encryption legislation, the E-Privacy Act. The bill compromises between the tech industry's need for fewer restrictions on the export of encryption products and law enforcement's desire for a way to make wiretapping easy to do in the digital age.

The E-Privacy Act - short for Encryption Protects the Rights of Individuals from Violation and Abuse in Cyberspace -- addresses many industry and consumer concerns. But it also raises concerns from consumer groups.

On one hand, the legislation reiterates Americans' rights to use encryption to ensure their privacy. And it would prohibit the government from requiring consumers to hand over an extra set of digital "keys" that could be used to unlock their data or listen in on their digital conversations.

Called key escrow, the requirement for a master key has been a common theme in FBI-backed legislation.

"Senators Ashcroft and Leahy (drafters of The E-Privacy Act ) tried to take a broad look at the issue, and for the most part, we like it," said CDT's Dempsey. "But it has some stuff in it that we are not happy about."

E-Privacy weaknesses
In particular, the new bill makes illegal the using of encryption to conceal an "incriminating" conversation or document. Consumer advocates criticized this provision, saying that such a definition could easily be turned against innocent citizens.

"Any law enforcement officer that could convince a judge that a conversation could potentially be criminal would be able to access that data," said EPIC's Banisar.

In addition, the bill introduces the concept of a National Electronic Technology Center, a clearinghouse for encryption and security data. Advocates worry that such a facility and its activities could be easily veiled in secrecy with little, or no, accountability.

"The issues with the NET Center is one of secrecy and defendants rights," said CDT's Dempsey, arguing that an agency dealing with classified materials may have little concern for constitutional justice. "We want to make sure that defendants have the full opportunity to challenge the evidence against them."

Still, law enforcement agencies including the FBI are thought to oppose the legislation. The FBI did not return calls for comment before press time.

A separate law, passed in 1994, is causing much more concern. Consumer vs. FBI: Faceoff on wiretapping