Posted on 04/30/2004 2:27:10 PM PDT by RightOnTheLeftCoast
Thank you, Mr. Chairman and members of the Committee, for providing me with this opportunity to discuss with you the Administration's policy on the important and complex issue of encryption and our position on H.R. 3011. Although the Department of Justice opposes H.R. 3011, we look forward to continuing the productive discussions we have had with Congress on this issue.
Since 1992, when AT&T announced its plan to sell a small, portable telephone device that would provide users with low-cost but robust voice encryption, the issue of encryption -- that is, the use of mathematical algorithms to protect the confidentiality of data -- has been vociferously debated in the United States. Some people -- legitimately concerned about privacy, commerce, and computer security -- have advocated the unfettered proliferation of strong encryption products, and disapprove of the Administration's attempt to promote cryptographic methods that allow for law enforcement access to plain text. They have argued that government should simply stay out of the encryption issue entirely. Government controls on the export of strong cryptography have come in for particular criticism. In the din of the debate and in some legislative proposals, however, the significant impact that unbreakable encryption would have on domestic law enforcement and national security has often been ignored or understated.
First, let me make clear that we believe that the availability and use of strong cryptography are critical if the "Global Information Infrastructure" (GII) is to fulfill its promise. Communications and data must be protected -- both in transit and in storage -- if the GII is to be used for personal communications, financial transactions, medical care, the development of new intellectual property, and myriad other applications. Indeed, people sometimes lose sight of the fact that law enforcement is responsible, in part, for protecting privacy and promoting commerce over our nation's communications networks. We protect communications privacy, for instance, by prosecuting those who would violate the communications privacy of others, and we help promote commerce by enforcing laws that protect intellectual property rights, by combatting computer and communications fraud, and by helping to protect the confidentiality of business data. Our support for robust encryption stems from this commitment to protecting privacy and commerce.
At the same time, however, we must be mindful of our other principal responsibilities: protecting public safety and national security against the threats posed by terrorists, organized crime, foreign intelligence agents, and others, and to prosecute serious crime when it does occur. Thus, notwithstanding the significant benefits of encryption, we are gravely concerned that the proliferation and use of unbreakable encryption would seriously undermine our ability to perform these critical missions.
Court-authorized wiretaps have proven to be one of the most successful law enforcement tools in preventing and prosecuting serious crimes, including terrorism. In addition, as society becomes more dependent on computers, evidence (and the fruits) of crimes are increasingly found in stored computer data, which can be searched and seized pursuant to court-authorized warrants. But if unbreakable encryption proliferates, these critical law enforcement tools would be nullified. Thus, for example, even if the government satisfies the rigorous legal and procedural requirements for obtaining a wiretap order (which can be obtained only in limited circumstances), the wiretap would essentially be worthless if the intercepted communications of the targeted criminals amount to an unintelligible jumble of noises or symbols. The potential harm to law enforcement -- and to the nation's domestic security -- could be devastating.
Our concern is neither theoretical nor overstated. We have already begun to encounter the harmful effects of encryption in recent investigations.
- In the Aldrich Ames spy case, Ames was instructed by his Soviet handlers to encrypt computer file information to be passed to them.
- Ramzi Yousef, recently convicted of conspiring to blow up 10 U.S.-owned airliners in the Far East, and his co-conspirators apparently stored information about their terrorist plot in an encrypted computer file in Manila. (Yousef is also one of the alleged masterminds of the World Trade Center bombing.)
- In a child pornography case, one of the subjects used encryption in transmitting obscene and pornographic images of children over the Internet.
- In a major international drug-trafficking case, the subject of a court-ordered wiretap used a telephone encryption device, significantly hindering the surveillance.
- Some of the anti-government militia groups are now promoting the use of encryption as a means of thwarting law enforcement investigations.
- In several major hacker cases, the subjects have encrypted computer files, thereby concealing evidence of serious crimes.
These are just a few examples of recent cases involving encryption....
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Bump!
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