------------------------------ Date: Fri, 25 Feb 1994 18:43:12 PST From: Jim Thomas Subject: File 3--Re: "Clipper Chip will Block Crime" (#2) Dorothy Denning's defense of Clipper as a crime-fighting strategy (as reported in Newsday, 22 Feb--see above file) reflects sincerity and passion. I have considerable intellectual and personal respect for Dorothy. In 1990, she was among the first to challenge media and law enforcement myths of the "dangerous hacker," and she did so while working in the private sector at the peak of the "hacker crackdown," which took considerable courage. She, along with John Nagel, also was instrumental in deflating the Government's case against Craig Neidorf in the Phrack/E911 trial in June, 1990, when she and John flew to Chicago at their own expense to help the defense prepare its case. Her good will, altruism, and integrity are unimpeachable. However, her defense of Clipper on the grounds that it will help fight crime requires some examination. CPSR, EFF and others have addressed some of the issues the Newsday story raises (see past CuDs and the documents in EFF's archives at ftp.eff.org /pub/EFF and browse). There are, however, a few specific examples used in the story to defend Clipper that I find troublesome. Among them: 1) Citing Don Delaney, senior investigator of the New York State Police, inspires little confidence. Dorothy notes that Delaney said that without an encoding standard that would not permit lawful intercepts, "we would have havoc in the United States." The hyperbole makes a dramatic media sound byte, but I can think of no society, none, ever, in which social stability and order were based on a government's ability and legitimate (or even illicit) power to surveil citizens at will. Generally, societies in which government ability to monitor citizens was high historically have been those in which respect for government authority was low, or in which stability was imposed by political repression. Although a minor point, the appeal to fears of undemonstrated social chaos to enact policies that threaten privacy are misdirected. If Delaney's comments before last summer's Congressional hearings are to be adduced as justification for Clipper, then his comments must be placed in the context in which they were made. The context does little to assure those of use concerned with the implications of Clipper for civil liberties. Delaney's comments occurred as critical commentary on 2600 Magazine, which he judged as dangerous to teenagers (emphasis added): Publications, such as "2600," which teach subscribers how to commit telecommunications crime are protected by the First Amendment, but disseminating pornography to minors is illegal. In that many of the phone freaks are juveniles, I BELIEVE LEGISLATION BANNING THE DISSEMINATION TO JUVENILES OF MANUALS ON HOW TO COMMIT CRIME WOULD BE APPROPRIATE. From a law enforcement perspective, I applaud the proposed Clipper chip encryption standard which affords individuals protection of privacy yet enables law enforcement to conduct necessary court-ordered wiretaps, and with respect to what was being said in the previous conversation, last year there were over 900 court-ordered wiretaps in the United States responsible for the seizure of tons of illicit drugs coming into this country, solving homicides, rapes, kidnappings. If we went to an encryption standard without the ability for law enforcement to do something about it, we would have havoc in the United States -- my personal opinion. Delaney expands in his later remarks: Well, the problem is that teenagers do read the "2600" magazine. I have witnessed teenagers being given free copies of the magazine by the editor-in-chief. I have looked at a historical perspective of the articles published in "2600" on how to engage in different types of telecommunications fraud, and I have arrested teenagers that have read that magazine. THE PUBLISHER, OR THE EDITOR-IN-CHIEF, DOES SO WITH IMPUNITY UNDER THE CLOAK OF PROTECTION OF THE FIRST AMENDMENT. However, as I indicated earlier, in that the First Amendment has been abridged for the protection of juveniles from pornography, I also FEEL THAT IT COULD BE ABRIDGED FOR JUVENILES BEING PROTECTED FROM MANUALS ON HOW TO COMMIT CRIME -- children, especially teenagers, who are hackers, and who, whether they be mischievous or intentionally reckless, don't have the wherewithal that an adult does to understand the impact of what he is doing when he gets involved in this and ends up being arrested for it. There is considerable room for disagreement on whether 2600 Magazine is any more a manual for crime than thousands of others examples drawn from movies, television, comic books, magazines, or radio programs are. What I find disturbing is the explicit advocacy that First Amendment protections be so easily abridged on the basis of simplistic opinions and interpretations. Following Delaney's logic for abridging First Amendment rights, one could with equal ease justify banning Bevis and Butthead, "Gangsta rap," and other forms of expression that law enforcement perceived to contribute to potential criminal behavior. Delaney's comments--although certainly well meaning and for a "higher goal"--do little to inspire confidence that some over-zealous law enforcement agents, believing they are acting for some higher purpose, won't abuse their power and authority. Those who remember the systematic abuses of law enforcement agents at all levels, especially the FBI, in the political surveillance excesses of the 1960s have no reason to trust the good faith of law enforcement in following-the-rules. 2) The double escrow systems of the two components of the chip's key do offer considerable protection from abuse, but the potential flaws have not been addressed, as many critics (eg, CPSR, EFF) have noted. The flaws include a) the ease of obtaining warrants, b) the misuse of warrants to justify overly-broad searches, c) the possibility of release of the key to unauthorized persons once obtained, and d) the assumption that collusion between persons to obtain a given set of keys is "impossible." Fully detailed discussion of security problems can be found in the position papers of the groups in the ftp.eff.org archives. 3) It is claimed that terrorists and others would, in fact, use Clipper, and the World Trade Center bombers, who were "stupid enough to return a truck that they had rented," is used as an example. Although a small detail, the bombers did not return the truck--it was destroyed in the blast. They returned for their deposit. Nonetheless, the argument could also be made that, if criminals are stupid, then why would they encrypt at all? Or, if they encrypted, why would they necessarily have an unbreakable code? The fact is that sophisticated criminals concerned with security of communications would likely circumvent Clipper, and Clipper is not the answer to intercepting such communications. 4) Clipper will have no significant impact on crime, and playing on the current "fear of crime" hysteria ignores several points. First, most of "crime" with which the public is concerned, street (or index) crimes, constitutes only a small fraction (under 15 percent by most estimates) of all crime. In dollar costs to society, white collar crime and tax fraud constitute almost two-thirds ($131 billion). Clipper will do absolutely nothing to reduce these offenses. Further, interception of communications is rarely used in apprehending criminals, and therefore would not be a significant factor in fighting crimes at all. Lets take a look at some figures on court-authorized orders granted for intercepts: YEAR STATE FEDERAL 1969 174 0 1974 607 121 1979 466 87 1984 512 289 1989 453 310 1991 500 386 Intercepts are useful for law enforcement, but they are simply not used often enough to justify the claim that Clipper would reduce crime, let alone that without Clipper we'd have social "havoc." What kinds of crimes are intercepts used for? In 1991, the Sourcebook of Criminal Justice Statistics (p. 474) lists the following: OFFENSE TOTAL FEDERAL STATE Narcotics 536 228 308 Racketeering 114 61 53 Gambling 98 19 79 Other 108 48 60 So, about 63 percent of intercepts are for drug dealers, and about another quarter are for racketeering and gambling. Intercepts for homicide (21) and kidnaping (5) were the only violent crimes for which intercepts were listed in 1991. This is hardly sufficient grounds on which to base an argument that Clipper will reduce crime or help stem social havoc. 5) The story alludes to the "success" of FBI wire taps of the El Rukns, a Chicago Street gang: In a Chicago case code-named RUKBOM, they prevented the El Rukn street gang, which was acting on behalf of the Libyan government, from shooting down a commercial airliner using a stolen military weapons system. My recollection of these events is quite different than those described above. The FBI did, in fact, intercept considerable communications between El Rukn members, include Jeff Forte, the group's leader, who led the gang from federal prison. The El Rukns attempted to obtain money from the Libyans for a variety of schemes, and one of the schemes included shooting down an airliner. Nothing ever came of the solicitations, and I recall no evidence that the plan described above was foiled by the FBI through wire taps or any other tactic. Some news accounts described it as a ploy to establish credibility with the Libyans. Others saw it as a fantasy, and some saw it as a potential danger that never went beyond posturing. I recall no evidence that law enforcement intervened to prevent it. Perhaps those with a better memory or with a press release at hand can refresh my memory, but I'm inclined to judge the story as at best a distortion of events and at worst simply false. 6) There's a sidebar to the El Rukn story relevant to Clipper. Federal prosecutors successfully prosecuted and imprisoned the gang's hierarchy. In 1993, it was revealed that the federal prosecutors engaged in illegal behaviors, including providing gang members with sex and drugs while in their custody to obtain testimony of some against the others. The fallout from the incident is still settling, but gross legal violations and other improprieties were commited under "color of law." It is ironic that the El Rukn investigation be used as an example of effective law enforcement when, in fact, it is an example of federal malfeasance and justice at its worst. It is precisely the blatant disregard of the rule of law by federal prosecutors in the El Rukn case that causes some of us to question the blind faith that others invest in it. It's an example of the dangers of law enforcement out of control. None of us like crime. All of us support reasonable ways to fight it, and most of us recognize the need for communications' intercepts on rare occasions. However, most U.S. citizens overwhelmingly oppose wiretapping (70 percent in 1991, down from 80 percent in 1974, according to Department of Justice Statistics). The history of government abuse of surveillance and the continued willingness of government agents to bend the law in pursuit of "justice," as the El Rukn incident above illustrates, suggests that Clipper poses far more risks to the commonweal than it offers protections. The subtext of the Newsday story, which ironically argues for Clipper on the basis of a case of government circumvention of law and a citation that occurred in the context of arguing for abridging Constitutional rights to argue FOR Clipper, in fact provides one of the best arguments against it. =+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+ + END THIS FILE + +=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+===+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=