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Civil Liberties Big Brother Is Listening Clinton Administration Proposals Would Sabotage The genius of American industrial technology has produced the most dynamic economy and the greatest individual prosperity in the history of civilization. Simultaneously, it has enabled the U.S. government to acquire the most powerful armed forces ever developed. It is no exaggeration to say that the innovations of American technology are responsible for the United States becoming the worlds foremost economic and military power. The resulting political stability and resources have likewise enabled America to provide leadership for the free world. Consequently, it is ironic that the federal government now constitutes the largest threat to the very industry on which our future economic health and continued leadership of the free world depend. The ProposalOur government ignores the fact that secure encryption software is already commonplace. The United States embargo against exporting encryption programs cannot halt the march of innovative technology. It simply encourages foreign entrepreneurs to fill the gap because the European Commission has refused to accept the U.S. standards for encryption control. Europe will not cripple its growing technology industry. Indeed, the Wall Street Journal recently reported that European technology firms were elated by U.S. restrictions on domestic companies and were capitalizing on the developing demand for secure encryption. American companies are restricted in their development of software programs for both domestic and foreign customers since many common computer programs, such as those for ATM transactions, and e-mail, fax programs, are encrypted or contain audit components that alert the owners that their systems have been entered. The Threat to PrivacyNo doubt some communications presently subject to interception will be secure as encryption becomes more widespread. However, little government eavesdropping focuses on terrorism or other violence. Wiretaps have almost doubled under the Clinton administration, reaching an all-time high in 1997. Authorities recorded over 2.7 million conversations, yet only about 20 percent of the conversations contained incriminating evidence and far fewer led to arrests. Seventy-three percent of the eavesdropping was related to drug crimes. Most of the rest involved gambling or racketeering investigations. Only two of the federal wiretaps were for assault or homicide. Despite the increases in government wiretaps and some successful cases against organized crime figures, few people in law enforcement contend that the nations drug or organized crime problem has significantly lessened. Likewise, encryption control would not significantly reduce crime and terrorism. The terrorists responsible for the World Trade Center and Oklahoma City attacks did not use encryption. Furthermore, both bombings were solved using traditional law enforcement methods of investigation, not electric surveillance. Witnesses were located and interviewed, forensic evidence was gathered and analyzed and convictions were obtained. Moreover, the validity of the governments demand for unprecedented power to invade privacy in its concern over terrorism has to be considered in light of other preventive efforts. Shortly after the Oklahoma City bombing the president and congressional leaders of both parties rushed before television cameras and vowed to expand FBI authority, despite the testimony of Mr. Freeh that the bureau did not need additional authority. I visited the federal buildings in both San Jose and San Francisco a week later and found no additional security measures in effect. Although the terrorists in New York and Oklahoma City had used vehicle bombs, it was still possible to park a truck or car bomb adjacent to the buildings. Likewise, in Africa, neither embassy building had been brought up to the governments security standards. We must question why our government, with a spotty record of taking routine security precautions to prevent terrorist attacks, is proposing a scheme of incredible regulatory control of industry based on mere speculation that it might at some future time intercept a terrorist communication. No one would deny the value of penetrating codes used by criminals or foreign enemies. Breaking the Japanese Purple code and the German Enigma encryptions during the Second World War was of great value. But such intelligence coups do not belong exclusively to the good guys. Our own military, law enforcement agencies and legitimate businesses need secure encryption. Military and law enforcement groups will, of course, attempt to persuade Congress that keys to their systems must remain in their care and be securely encrypted. The government, however, will mandate that companies cannot have secure systems subject to audits. This will make sensitive communications systems more attractive targets for cybercriminals and terrorists. They will recognize that stealing a key from a third party will provide more access to information and will be less likely to be discovered in time to prevent the damage.The most frustrating aspect of the governments encryption control proposal is that encryption control is not only irrelevant in terms of protecting national security and preventing crime, but it is counterproductive as well. The government supports its case by alleging that it is aware of five hundred instances in which foreign suspects used encryption. Why then is it not clear that terrorists and organized crime groups are presently capable of using secure encryption? This technology is already here. But even the more advanced secret programs will not remain that way. How can we forget that a far more guarded secretthe technology of making atomic bombswas stolen by the Soviet Union despite being under the tightest government security in history? Try as we may, we cannot put the genie of technology back into the bottle. A Misguided PolicyConfidentiality of information can never be guaranteed, no matter how strict the laws and regulations and no matter who holds the keys. As always, a balance must be struck between the authority of the government and the individual freedom of citizens in a democracy. Third-party keys will be a more attractive target for terrorists than the present multiple encryption controls employed in sensitive industries. The magnitude of key security problems is breathtaking. There are roughly seventeen thousand law enforcement agencies in the United States, each of which would need access to keys on receiving a court order. How many companies would be involved? How many keys? How many third-party guardians? How would a third party determine the validity of a court order or the identity of those presenting themselves as law enforcement officers? Would keys and information be shared with foreign police? Could the police of other nations be trusted not to disclose the confidential data of American corporations to their own governments, and industries? The fundamental target of terrorists is the power and stability of America. Both can be undermined if citizens lose confidence that the government is protecting constitutional rights, if prosperity vanishes, and if crime flourishes. If Congress accepts the FBI plan, it will weaken Americas global edge in the high-tech industry. That industry has been important in creating jobs, thereby leading the nation out of recession and helping to reduce crime. During my 15 years as police chief of San Jose, Americas 11th largest city, it became the safest major city despite having the lowest per capita police staffing. Sure, we had some great cops, but the crime rate dropped because we were in the heart of the computer industry which reduced the local unemployment rate to 2 percent. It would be tragic if Congress, in the name of helping law enforcement, produced more unemployment and crime by accepting the current encryption control proposals. No one would be happier than Americas terrorist enemies. NJJoseph D. McNamara, the former police chief of Kansas City, Missouri and San Jose, California, is a research fellow at the Hoover Institution where this article was originally published in the Hoover Digest: Research and Opinion on Public Policy. It is reprinted by permission of the publisher, Hoover Institution Press, and bears a 1999 copyright by the Board of Trustees of the Leland Stanford Junior University.
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