AUSTIN, Texas - "Government key recovery is the devil."
So read the projection screen in the main conference room here Thursday at the Computers, Freedom and Privacy conference, where a panel discussed the outlook for encryption-control legislation in Congress this year.
The 1997 session saw the rise and apparent fall of two bills that would have liberalized federal crypto export policy and all but forbidden a key-recovery infrastructure in the United States. Representative Bob Goodlatte's Safety and Freedom Through Encryption (SAFE) Act and parallel Senate legislation called the Promotion of Commerce Online in the Digital Era (Pro-CODE) Act fell victim to a Clinton administration counterattack.
The Senate bill was shunted aside for a White House bill cosponsored by senators John McCain, Bob Kerrey, and Ernest Hollings. In the House, aggressive lobbying by the FBI and the National Security Agency led to a series of committee votes that gutted some of the Goodlatte bill's central features - industry freedom to export products containing strong encryption, the prohibition of a key-recovery system - and amended it to include provisions that called for nearly the opposite.
The most "chilling" change to Goodlatte's bill, said panel moderator Alan Davidson of the Center for Democracy and Technology, reads: "After 31 January 2000, it shall be unlawful for any person to manufacture for distribution, distribute, or import encryption products intended for sale or use in the United States, unless that product includes features or functions that provide an immediate access to plaintext capability."
"The FBI has finally been willing to admit what we suspected all along, that they do want domestic controls on encryption and immediate access to plaintext messages without notifying the key holder," said Davidson."
Goodlatte's bill, though radically different from his original legislation, is still alive. The amendments tacked onto the bill by the Intelligence, National Security, and Commerce committees must still undergo scrutiny by the Rules Committee - whose chairman, Gerald Solomon of New York, opposes liberalizing crypto policy and whose fellow panel members are nearly all among the 250 bill cosponsors.
Goodlatte and his allies have expressed hope that the legislation can still be salvaged. One member of Thursday's panel, however - Pretty Good Privacy founder Phil Zimmermann, a leader in the fight to make strong encryption widely available and to keep private data out of government hands - offered a gloomy legislative weather forecast.
"It's likely that all we'll succeed in doing is stopping the other side from putting forth legislation," said Zimmermann. He summed up his view with a quote from Gandhi: "Whatever you do will be insignificant, but it is very important that you do it."
Another panel member, Aaron Cross, public policy director for IBM's governmental programs, said extreme positions of both sides may ultimately lead nowhere, and that the industry should take the lead in settling the issue.
"It's time for government to step aside and let the market guide development. If both sides continue to harden, we may never get to any satisfactory solution," he said.
Cross said that the Key Recovery Alliance - a group of companies that support some form of key recovery infrastructure - currently has more than 70 members and is developing a technological framework, which includes interoperability and scalability designs, that will be detailed later this year.
The position of the Key Recovery Alliance was clearly a contentious issue, and one audience member - affiliated with the Electronic Frontier Foundation - asked Cross for specifics of the alliance's key recovery system and how it would be different from what law enforcement wants.
Cross said the alliance will propose a commercial key recovery system that will not provide immediate access to plaintext, while noting that he doesn't believe that provision will even be part of the final requirements of any bill that passes.
Zimmermann himself offered something of a defense for the alliance - and for private key management.
He recounted that he didn't know that Pretty Good Privacy's new parent company, Network Associates, was part of the group when the acquisition took place last December. That discovery led him and other PGP principals to pressure Network Associates into leaving the alliance, a move that ultimately led to other firms departing, too. But Zimmermann said he has since concluded that the alliance "is not as bad a monster as I thought it was, and I didn't mean to call so much attention to it."
Zimmermann was questioned about an apparent paradox between his stand that private data should stay private and the latest version of his company's enterprise encryption software. The product allows employers to maintain a key that can access any employee's email messages.
Zimmermann's position: The software doesn't really do anything that can't be accomplished by other means.
"Right now, a subpoena can be used to get at a recipient's key, and there are a variety of ways to get the plaintext content of a message. In the grand scheme of things, I think our solution doesn't affect the outcome of any investigation," he said.
