Keep Cops And Spooks At Bay

President Clinton raised a few eyebrows recently when he announced support for the Internet Tax Freedom Act, a bill that places a moratorium on new taxes applying only to the Internet.

The president is right to be concerned. The nation's 30,000 state and local taxing authorities could well strangle cyberspace with new levies.

But another set of policies supported by the Clinton administration has shackled Internet commerce and hampered the Net's communications potential: controls on data encryption.

Encryption programs are mathematical formulas that scramble messages sent over data networks.

Effective encryption could make any electronic messageincluding e-mail, a cell-phone call or a wire transferindecipherable to anyone except the sender and the intended recipient.

As more people rely on computers, the demand for security in cyberspace will skyrocket. In an online world, encryption can be an effective way for people to enhance their security.

The Fourth Amendment to the U.S. Constitution affirms the right of all individuals to "be secure in their persons, houses, papers, and effects against unreasonable searches and seizures."

But the Clinton administration and its allies in law enforcement don't want communications to be private.

With this in mind, the Department of Commerce recently established the President's Export Council Subcommittee on Encryption, a 20-member panel with representatives from law enforcement agencies, high-tech companies and financial institutions.

But it won't be debating the merits of strong encryption. Instead, it will merely rubber-stamp proposals to compromise your privacy that the administration has been hawking unsuccessfully for six years.

Whenever possible, the Clinton administration has discussed encryption policy away from public scrutiny. The panel will continue that practice.

Neither the Web site operated by the Department of Commerce (www.doc.gov) nor the main White House site (www.whitehouse.gov) lists the subcommittee, its mission or its members.

An article in CyberWire Dispatch newsletter notes that ""all members have received security clearances, and some future meetings will be closed to the public.''Despite its importance, the subcommittee has attracted little attention from the mainstream press.

A search of the commercial database Nexis lists only three references to the group: a press release from a corporate member and two federal daybook notices of an initial Feb. 23 meeting, which no major news service covered.

If encryption policy is set behind closed doors, the privacy of every law-abiding American will be left to the whims of regulators, cops and spooks. Current controls date back to the Cold War, when encryption was treated like a weapon. Commerce now regulates encryption, and it has relaxed some controls.

But the restrictions have frozen a fast-moving technology in place, making it vulnerable to hacker attacks, with the feds unwilling to loosen their grip on encryption without a struggle.

Consider "key recovery," the Clinton administration's latest plan to monitor the communications of anyone who uses online services or wireless phones.

Anyone using key-recovery software would have to deposit the "keys" that scramble and un scramble their messages with a "trusted third party" (something resembling an escrow agency) that the government could approach if it wanted to intercept private transmissions.

Buying key-recovery software would amount to giving government agents the key to your house and trusting that they will never drop by unannounced.

It's an invitation for law enforcement agencies (including tax collectors) to monitor anyone who uses encryption programs.

And if you think constitutional guarantees would protect your privacy as long as you keep your nose clean, you haven't been reading the key-recovery proposals Congress is considering.

One bill would allow the cops to acquire your keys if they obtained a subpoenaeasy to getrather than the search warrant typically required to tap a telephone.

Another would have made the mere possession of encryption software without key-recovery features a criminal offense.

The National Sheriffs' Association, whose president is part of the new panel, wants the cops given immediate access to encrypted messages without even obtaining a search warrant or even a subpoena.

FBI Director Louis Freeh has repeatedly told Congress the administration would demand key- recovery provisions as part of any new encryption law.

Law enforcement officials claim that allowing strong encryption will prevent them from stopping terrorists, drug dealers and pedophiles. But criminals won't hand their encryption keys over to a government-friendly third party.

Secure encryption can help make sure the Fourth Amendment remains as important in the online world as it was in the days of quill pens and inkwells.