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Intelligence



STATEMENT OF LOUIS J. FREEH

DIRECTOR
FEDERAL BUREAU OF INVESTIGATION

MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE, I APPRECIATE THE OPPORTUNITY TO DISCUSS WITH YOU THE ISSUE OF ENCRYPTION AND ITS IMPACT ON PUBLIC SAFETY AND EFFECTIVE LAW ENFORCEMENT. I KNOW THIS IS AN ISSUE THAT THE COMMITTEE IS EXTREMELY WELL VERSED, GIVEN THE COMMITTEE'S EFFORTS LAST CONGRESS TO FIND A BALANCED LEGISLATIVE SOLUTION TO THIS EXTREMELY COMPLEX ISSUE. I APPLAUD YOUR WILLINGNESS TO REVISIT THE ISSUE DURING THIS CONGRESS.

THE WIDESPREAD USE OF ROBUST, NON-RECOVERABLE, COMMERCIALLY-AVAILABLE ENCRYPTION, WHICH IS VIRTUALLY UNBREAKABLE, IS ONE OF THE MOST DIFFICULT PROBLEMS CONFRONTING ALL OF LAW ENFORCEMENT AS THE NEXT CENTURY APPROACHES. AT STAKE ARE SOME OF OUR MOST VALUABLE AND RELIABLE INVESTIGATIVE TECHNIQUES, AS WELL AS THE PUBLIC SAFETY OF THE CITIZENS WE ARE SWORN TO PROTECT. WE BELIEVE THAT UNLESS A BALANCED APPROACH TO THE ENCRYPTION ISSUE IS ADOPTED AND ENCRYPTION TECHNOLOGY AND INFRASTRUCTURES EVOLVE IN SUCH A WAY THAT INCLUDES SOME TECHNICAL MEANS FOR LAW ENFORCEMENT ACCESS TO THE PLAINTEXT OF ENCRYPTED EVIDENCE FOR LAWFUL PURPOSES, OUR ABILITY TO INVESTIGATE, AND SOMETIMES PREVENT, THE MOST SERIOUS CRIMES AND ACTS OF TERRORISM WILL BE SEVERELY IMPAIRED.

AS THE COMMITTEE IS AWARE, THIS IS NOT AN ISSUE UNIQUE ONLY TO U.S. LAW ENFORCEMENT. BECAUSE OF THE GRAVE PUBLIC SAFETY CONCERNS ASSOCIATED WITH THE ENCRYPTION ISSUE, BRITISH PRIME MINISTER TONY BLAIR HAS DECIDED TO TAKE A LEADERSHIP ROLE CONCERNING THE ISSUE AND RECENTLY CONVENED A MEETING OF ALL RELEVANT INDUSTRY CEOs AT NUMBER 10 DOWNING STREET. I UNDERSTAND THAT PRIME MINISTER BLAIR SENT A CLEAR MESSAGE TO THE INDUSTRY CEOs INFORMING THEM THAT THE BRITISH GOVERNMENT WAS UNWILLING ALLOW PUBLIC SAFETY TO BE UNNECESSARILY PLACED A RISK AND IS CALLING FOR THE ADOPTION OF A PUBLIC POLICY ON ENCRYPTION THAT ADEQUATELY BALANCES THE COMPETING NEEDS OF PUBLIC SAFETY, NATIONAL SECURITY, PRIVACY AND BUSINESS.

TO FURTHER UNDERSCORE THIS POINT, A JULY 1ST REUTERS ARTICLE ENTITLED "UK TO GIVE POLICE NEW POWERS ON ENCRYPTION", INDICATED THAT BRITISH HOME SECRETARY JACK STRAW HAD RECENTLY INFORMED PARLIAMENT THAT WHILE THE BRITISH GOVERNMENT IS COMMITTED TO PROMOTING E-COMMERCE, THERE IS EQUAL DETERMINATION TO SEE THAT NEW TECHNOLOGIES DOES NOT UNDERMINE THE FUNDAMENTAL RESPONSIBILITY OF GOVERNMENT - KEEPING COUNTRIES SAFE PLACES FOR EVERYONE TO LIVE AND WORK IN. IT WAS FURTHER REPORTED THAT PRIME MINISTER BLAIR'S GOVERNMENT PLANS TO SEEK LEGISLATION IN THE NEAR FUTURE TO PROVIDE THE LAW ENFORCEMENT, SECURITY AND INTELLIGENCE AGENCIES WITH NEW POWERS TO REQUIRE ANY PERSON (INCLUDING A CRIMINAL SUSPECT IN CERTAIN CIRCUMSTANCES) TO SURRENDER A DECRYPTION KEY OR THE PLAINTEXT OF SPECIFIC ENCRYPTED INFORMATION TO THE GOVERNMENT, IN RESPONSE TO A PROPER AUTHORIZED REQUEST. THIS RECENT ACTION BY THE BRITISH GOVERNMENT STANDS AS A CLEAR RECOGNITION THAT ALL OF SOCIETY WILL SUFFER IF LAW ENFORCEMENT'S LAWFUL INVESTIGATIVE CAPABILITIES ARE RENDERED INEFFECTIVE BY THE CRIMINAL USE OF COMMERCIALLY-AVAILABLE ENCRYPTION TECHNOLOGY THAT HAS BEEN DEVELOPED IN SUCH A MANNER THAT IT FAILS TO ADDRESS THE PUBLIC SAFETY NEEDS OF LAW ENFORCEMENT. MY UNDERSTANDING IS THAT THE BRITISH LEGISLATION IS DUE ANY DAY AND WE LOOK FORWARD TO REVIEWING IT.

FROM A LAW ENFORCEMENT PROSPECTIVE, FRAMING THE ISSUE IS SIMPLE. IN THIS TIME OF DAZZLING TELECOMMUNICATIONS AND COMPUTER TECHNOLOGY WHERE INFORMATION CAN HAVE EXTRAORDINARY VALUE, THE READY AVAILABILITY OF ROBUST ENCRYPTION IS ESSENTIAL. NO ONE IN LAW ENFORCEMENT DISPUTES THAT. CLEARLY, IN TODAY=S WORLD AND MORE SO IN THE FUTURE, THE ABILITY TO ENCRYPT BOTH CONTEMPORANEOUS COMMUNICATIONS AND STORED DATA IS A VITAL COMPONENT OF INFORMATION SECURITY.

AS IS SO OFTEN THE CASE, HOWEVER, THERE IS ANOTHER ASPECT TO THE ENCRYPTION ISSUE THAT, IF LEFT UNADDRESSED, WILL HAVE SEVERE PUBLIC SAFETY AND NATIONAL SECURITY RAMIFICATIONS. LAW ENFORCEMENT IS IN UNANIMOUS AGREEMENT THAT THE WIDESPREAD AVAILABILITY AND USE OF ROBUST, NON-RECOVERABLE ENCRYPTION ULTIMATELY WILL DEVASTATE OUR ABILITY TO FIGHT CRIME AND PREVENT TERRORISM. COMMERCIALLY-AVAILABLE, NON-RECOVERABLE ENCRYPTION WILL AND CURRENTLY IS PROVIDING DRUG LORDS, SPIES, TERRORISTS, PEDOPHILES, AND EVEN VIOLENT GANGS WITH THE ABILITY TO COMMUNICATE ABOUT THEIR CRIMES AND THEIR CONSPIRACIES WITH IMPUNITY. IF THIS TREND CONTINUES AND LAW ENFORCEMENT'S PLAINTEXT ACCESS NEEDS ARE NOT EFFECTIVELY ADDRESSED, WE WILL LOSE ONE OF THE FEW REMAINING VULNERABILITIES TO THE WORST CRIMINALS AND TERRORISTS UPON WHICH WE DEPEND TO SUCCESSFULLY INVESTIGATE, AND OFTEN PREVENT, THE WORST CRIMES PERPETRATED AGAINST AMERICAN CITIZEN AND SOCIETY AS A WHOLE .

FOR THIS REASON, THE LAW ENFORCEMENT COMMUNITY IS UNANIMOUS IN CALLING FOR A BALANCED SOLUTION TO THIS PROBLEM. SUCH A SOLUTION MUST SATISFY BOTH THE COMMERCIAL NEEDS OF INDUSTRY FOR STRONG ENCRYPTION AND LAW ENFORCEMENT=S PUBLIC SAFETY NEEDS. IN OUR VIEW, ANY LEGISLATIVE APPROACH TO THE ENCRYPTION ISSUE THAT DOES NOT ACHIEVE SUCH A BALANCE WILL SERIOUSLY JEOPARDIZE THE LONG-TERM VIABILITY AND USEFULNESS OF COURT-AUTHORIZED WIRETAPS AS WELL AS COURT-AUTHORIZED SEARCH WARRANTS DIRECTED AT CRIMINALLY-RELATED INFORMATION STORED ON COMPUTERS. ELECTRONIC SURVEILLANCE AND SEARCH AND SEIZURE ARE TECHNIQUES UPON WHICH LAW ENFORCEMENT DEPENDS TO ENSURE PUBLIC SAFETY AND MAINTAIN NATIONAL SECURITY.

CONGRESS HAS ON MANY OCCASIONS ACCEPTED THE PREMISE THAT THE USE OF ELECTRONIC SURVEILLANCE IS A TOOL OF UTMOST IMPORTANCE IN TERRORISM CASES AND IN MANY CRIMINAL INVESTIGATIONS, ESPECIALLY THOSE INVOLVING SERIOUS AND VIOLENT CRIME, ESPIONAGE, ORGANIZED CRIME, DRUG-TRAFFICKING, CORRUPTION AND FRAUD. THERE HAVE BEEN NUMEROUS CASES WHERE LAW ENFORCEMENT, THROUGH THE USE OF ELECTRONIC SURVEILLANCE, HAS NOT ONLY SOLVED AND SUCCESSFULLY PROSECUTED SERIOUS CRIMES AND DANGEROUS CRIMINALS, BUT HAS ALSO BEEN ABLE TO PREVENT SERIOUS AND LIFE-THREATENING CRIMINAL ACTS. FOR EXAMPLE, TERRORISTS IN NEW YORK WERE PLOTTING TO BOMB THE UNITED NATIONS BUILDING, THE LINCOLN AND HOLLAND TUNNELS, AND 26 FEDERAL PLAZA AS WELL AS ASSASSINATIONS OF POLITICAL FIGURES. COURT-AUTHORIZED ELECTRONIC SURVEILLANCE ENABLED THE FBI TO DISRUPT THE PLOT AS EXPLOSIVES WERE BEING MIXED. ULTIMATELY, THE EVIDENCE OBTAINED WAS USED TO CONVICT THE CONSPIRATORS. IN ANOTHER EXAMPLE, ELECTRONIC SURVEILLANCE WAS USED TO PREVENT AND THEN CONVICT TWO MEN WHO INTENDED TO KIDNAP, MOLEST AND THEN KILL A CHILD.

UNFORTUNATELY, MOST COMMERCIALLY-AVAILABLE ENCRYPTION PRODUCTS MANUFACTURED TODAY FOR USE BY THE GENERAL PUBLIC ARE NON-RECOVERABLE AND DO NOT PROVIDE A MEANS FOR LAWFUL LAW ENFORCEMENT ACCESS TO THE PLAINTEXT OF ENCRYPTED CRIMINALLY-RELATED INFORMATION. THE WIDESPREAD USE OF SUCH NON-RECOVERABLE ENCRYPTION PRODUCTS OR A COMMUNICATIONS INFRASTRUCTURE THAT SUPPORTS THE USE OF NON-RECOVERABLE ENCRYPTION CLEARLY WILL UNDERMINE LAW ENFORCEMENT=S ABILITY TO EFFECTIVELY CARRY OUT ITS PUBLIC SAFETY MISSION AND TO COMBAT DANGEROUS CRIMINALS AND TERRORISTS.

SOME HAVE ARGUED THAT GOVERNMENT POLICY MAKERS SHOULD STEP ASIDE AND LET MARKET FORCES SOLELY DETERMINE THE DIRECTION OF ENCRYPTION TECHNOLOGY, LETTING SUCH MARKET FORCES ALONE DETERMINE THE TYPE OF TECHNOLOGIES THAT WILL BE USED AND UNDER WHAT CIRCUMSTANCE. THEY ARGUE THAT MOST CORPORATIONS THAT SEE THE NEED FOR ENCRYPTION WILL ALSO RECOGNIZE THE NEED FOR, AND EVEN INSIST ON RECOVERABLE ENCRYPTION PRODUCTS TO SECURE THEIR ELECTRONICALLY STORED INFORMATION AND TO PROTECT THEIR CORPORATE INTEREST SHOULD A DECRYPTION KEY BE LOST, STOLEN OR USED BY A ROGUE EMPLOYEE FOR EXTORTION PURPOSES.

LAW ENFORCEMENT AGREES THAT RATIONAL THINKING CORPORATIONS WILL ACT IN A PRUDENT MANNER AND WILL INSIST ON USING AND EVEN RUNNING THEIR OWN RECOVERABLE ENCRYPTION SYSTEMS TO PROTECT THEIR ELECTRONICALLY STORED INFORMATION. HOWEVER, LAW ENFORCEMENT HAS A UNIQUE PUBLIC SAFETY REQUIREMENT IN THE AREA OF PERISHABLE COMMUNICATIONS WHICH ARE IN TRANSIT (TELEPHONE CALLS, E-MAIL, ETC.) IT IS LAW ENFORCEMENT, NOT CORPORATE AMERICA, THAT HAS THE NEED AND RESPONSIBILITY, PURSUANT TO COURT ORDER, FOR IMMEDIATE ACCESS TO THE PLAINTEXT OF ENCRYPTED, CRIMINALLY-RELATED COMMUNICATIONS THAT ARE IN TRANSIT. THERE IS EXTRAORDINARY RISK IN TRUSTING PUBLIC SAFETY TO MARKET FORCES THAT ARE PROTECTING IMPORTANT BUT UNRELATED INTERESTS.

IT IS FOR THIS REASON THAT GOVERNMENT POLICY MAKERS AND CONGRESS SHOULD PLAY A DIRECT ROLE IN SHAPING OUR NATION'S ENCRYPTION POLICY TO FOSTER AND ADOPT A BALANCED APPROACH THAT ADDRESSES BOTH THE COMMERCIAL REQUIREMENTS OF INDUSTRY AND LAW ENFORCEMENT'S PUBLIC SAFETY NEEDS. TECHNICAL SOLUTIONS THAT PROVIDE ROBUST ENCRYPTION, COMBINED WITH SOME FORM OF RECOVERY CAPABILITY IS CLEARLY, IN OUR VIEW, THE BEST WAY TO ACHIEVE THE GOALS OF BOTH INDUSTRY AND LAW ENFORCEMENT. LAW ENFORCEMENT'S PUBLIC SAFETY NEEDS ARE BEST SERVED BY ENSURING THAT COMMERCIALLY-AVAILABLE ENCRYPTION PRODUCTS MANUFACTURED FOR USE IN THE U.S. HAVE SOME TYPE OF RECOVERY CAPABILITY THAT ALLOWS FOR ACCESS TO THE PLAINTEXT OF ENCRYPTED, CRIMINALLY-RELATED INFORMATION (BOTH TRANSMITTED AND STORED), PURSUANT TO COURT ORDER. IT IS IMPORTANT TO UNDERSTAND THAT BY "RECOVERABLE" WE DO NOT MEAN ONLY THIRD PARTY KEY ESCROW SYSTEMS. WE BELIEVE THAT THERE IS NO ONE SIZE FITS ALL SOLUTION AND THAT THERE MAY BE SEVERAL TECHNICAL WAYS TO RECOVER PLAINTEXT. MANY OF THE RECOVERABLE SYSTEMS IN USE TODAY AND APPROVED FOR EXPORT ARE COMPLETELY MANAGED BY A SYSTEMS ADMINISTRATOR .

SEVERAL BILLS HAVE RECENTLY BEEN INTRODUCED IN CONGRESS CONCERNING THE ENCRYPTION ISSUE, TO INCLUDE

H.R. 850, THE "SAFE" ACT. UNFORTUNATELY, THE MAIN FOCUS OF THESE BILLS IS THE RELAXATION OF EXPORT CONTROLS ON ENCRYPTION PRODUCTS AND PREVENTING THE GOVERNMENT FOR MANDATING THE USE OF KEY RECOVERY, RECOVERABLE AND/OR PLAINTEXT ACCESS ENCRYPTION WITHIN THE U.S. REGARDLESS OF THE ADVERSE IMPACT TO NATIONAL SECURITY AND/OR PUBLIC SAFETY. THE "SAFE" ACT, IN ITS CURRENT FORM, ONLY ADDRESSES COMMERCIAL AND PRIVACY INTEREST. IT DOES NOTHTING TO AFFIRMATIVELY ADDRESS OR IMPORVE LAW ENFORCEMENT'S ABILITY TO PERFORM ITS PUBLIC SAFETY MISSION IN AN ENCRYPTED WORLD.

AS THE COMMITTEE KNOWS, EXPORT CONTROLS ON ENCRYPTION PRODUCTS HAVE IN PLACE FOR YEARS AND EXIST PRIMARILY TO PROTECT NATIONAL SECURITY AND FOREIGN POLICY INTERESTS. ON OCCASION, U.S. LAW ENFORCEMENT IS PROVIDED WITH VALUABLE CRIMINAL-RELATED INFORMATION OBTAINED THROUGH OUR NATION'S INTELLIGENCE GATHERING EFFORTS. LAW ENFORCEMENT BELIEVES THAT THIS CAPABILITY SHOULD NOT BE LOST. HOWEVER, IT SHOULD BE CLEARLY UNDERSTOOD THAT U.S. LAW ENFORCEMENT HAS MUCH GREATER CONCERNS ABOUT THE PUBLIC SAFETY RAMIFICATIONS CAUSED BY THE PROLIFERATION AND USE OF COMMERCIALLY-AVAILABLE, NON-RECOVERABLE ENCRYPTION PRODUCTS WITHIN THE U.S. THAT PREVENTS TIMELY LAW ENFORCEMENT ACCESS TO THE PLAINTEXT OF LAWFULLY SEIZED, ENCRYPTED, CRIMINALLY-RELATED COMMUNICATIONS AND/OR ELECTRONICALLY STORED INFORMATION.

THE UNACCEPTABLE PUBLIC SAFETY AND NATIONAL SECURITY THREAT POSED BY THE PROLIFERATION AND USE OF SUCH COMMERCIALLY-AVAILABLE, NON-RECOVERABLE ENCRYPTION PRODUCTS IS NOT A PROBLEM THAT WILL BEGIN SOMETIME IN THE FUTURE, IT IS AN ISSUE THAT LAW ENFORCEMENT IS FACING TODAY. IN ADDITION TO THE NOTABLE CASES I DISCUSSED WITH YOU LAST CONGRESS (E.G. THE ALDRICH AMES CASE WHERE AMES WAS TOLD BY THE RUSSIAN HANDLERS TO ENCRYPT COMPUTER FILE INFORMATION TO BE PASSED TO THEM; THE RAMZI YOUSEF INTERNATIONAL TERRORISM CASE WHERE YOUSEF AND OTHERS WERE PLOTTING TO BLOW UP 11 U.S.-OWNED COMMERCIAL AIRCRAFT IN THE FAR EAST AND YOUSEF'S LAPTOP COMPUTER WAS FOUND TO CONTAIN ENCRYPTED FILES CONCERNING THIS TERRORIST PLOT; AND THE CHILD PORNOGRAPHY CASE WHERE THE SUBJECT OF THAT INVESTIGATION USED ENCRYPTION IN TRANSMITTING PORNOGRAPHIC IMAGES OF CHILDREN OVER THE INTERNET), LAW ENFORCEMENT CONTINUES TO EXPERIENCE AN INCREASE IN THE NUMBER OF ENCOUNTERS WITH, AND THE SUBSEQUENT DAMAGING AND DETRIMENTAL EFFECTS OF, THE USE OF COMMERCIALLY-AVAILABLE, NON-RECOVERABLE ENCRYPTION BY CRIMINALS, TERRORISTS AND IN HOSTILE INTELLIGENCE ACTIVITIES THROUGHOUT THE UNITED STATES AND ACROSS INTERNATIONAL BORDERS. IN PARTICULAR, THE FBI IS CURRENTLY EXPERIENCING THE GREATEST IMPACT FROM ENCRYPTION IN FOREIGN COUNTER-INTELLIGENCE (FCI), VIOLENT CRIME (WHICH INCLUDES SEXUAL EXPLOITATION OF CHILDREN AND CHILD PORNOGRAPHY CASES), AND WHITE COLLAR CRIME/ COMPUTER CRIMES AND THREAT ASSESSMENTS INVESTIGATIONS. HOWEVER, THE USE OF ENCRYPTION IN ORGANIZED CRIME, DRUG, AND DOMESTIC AND INTERNATIONAL TERRORISM INVESTIGATIONS HAS ALSO BEEN ENCOUNTERED.

IN FACT, AT LEAST 50 PERCENT OF THE FBI'S 56 FIELD OFFICES HAVE RECENTLY ENCOUNTERED ENCRYPTION IN CASES INVOLVING ONE OR MORE OF THE AFOREMENTIONED INVESTIGATIVE PROGRAM AREAS. GIVEN THE ONGOING NATURE OF MANY OF THESE CASES, IT IS EXTREMELY DIFFICULT FOR ME TO PUBLICLY DISCUSS, WITH ANY DEGREE OF SPECIFICITY, THE DETAILS OF THESE CASES BECAUSE SUCH DISCLOSURE COULD COMPROMISE MANY OF THESE ONGOING INVESTIGATIONS. HOWEVER, I CAN SHARE WITH YOU THE FOLLOWING GENERAL INFORMATION CONCERNING THESE ONGOING FBI INVESTIGATIONS THAT HAVE BEEN ADVERSELY IMPACTED BY THE USE OF NON-RECOVERABLE ENCRYPTION:

1) AT LEAST EIGHT MAJOR FBI FIELD OFFICES HAVE IDENTIFIED THE USE OF ENCRYPTION BY THE SUBJECTS OF FOREIGN COUNTER- INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS IN A DELIBERATE ATTEMPT BY THESE SUBJECTS TO PROTECT THEIR SUSPECTED CRIMINALLY-RELATED COMMUNICATIONS AND PREVENT DETECTION BY LAW ENFORCEMENT OF THEIR SUSPECTED CRIMINAL ACTIVITIES;

2) IN ADDITION TO THE PREVIOUSLY STATED EXAMPLE OF A CHILD PORNOGRAPHY CASE WHERE PORNOGRAPHIC IMAGES OF CHILDREN WERE ENCRYPTED AND TRANSMITTED BETWEEN SUBJECTS, THERE CONTINUES TO BE EVIDENCE OF THE INCREASED USE OF ENCRYPTION BY A NUMBER OF SUBJECTS INVOLVED IN THE SEXUAL EXPLOITATION OF CHILDREN AND CHILD PORNOGRAPHY WHO ARE UTILIZING VARIOUS COMMERCIALLY AVAILABLE ENCRYPTION PRODUCTS TO PROTECT SUSPECTED CRIMINALLY-RELATED INFORMATION AND COMMUNICATIONS AS WELL AS TO PROTECT THEIR ILLEGAL PORNOGRAPHIC IMAGES OF CHILDREN FROM DISCOVERY AND DETECTION; AND

3) THERE ARE ALSO NUMEROUS ONGOING FBI INVESTIGATIONS INVOLVING ILLEGAL HACKER INTRUSIONS INTO SEVERAL UNIVERSITY AND GOVERNMENT COMPUTER SYSTEMS AS WELL AS SOFTWARE PIRACY IN WHICH THE SUBJECTS OF THESE INVESTIGATIONS HAVE ENCRYPTED POTENTIALLY INCRIMINATING INFORMATION WHICH, IF DECRYPTED, COULD INDICATE THE LEVEL OF THEIR INVOLVEMENT IN THESE ILLEGAL ACTIVITIES AS WELL AS DISCLOSE THE SPECIFIC INFORMATION STOLEN FROM THESE VARIOUS COMPUTER SYSTEMS.

IN ADDITION, OVER THE LAST FOUR (4) YEARS, THE FBI HAS ALSO SEEN THE NUMBER OF COMPUTER RELATED CASES UTILIZING ENCRYPTION AND/OR PASSWORD PROTECTION INCREASE FROM TWO (2) PERCENT TO APPROXIMATELY TWENTY (20) PERCENT. THESE INCLUDE THE USE OF 56 BIT DATA ENCRYPTION STANDARD (DES) AND 128 BIT APRETTY GOOD PRIVACY@ (PGP) ENCRYPTION.

UNFORTUNATELY, SOME MAY TAKE THE OPINION THAT THE NUMBER OF CASES INVOLVING ENCRYPTION IS TOO SMALL TO WARRANT ATTENTION NOW. WE RESPECTFULLY DISAGREE. WHERE CURRENT AND FUTURE PUBLIC SAFETY IS CONCERNED, WE HAVE TO RESPONSIBLY ANTICIPATE FUTURE TRENDS. AS ENCRYPTION BECOMES UBIQUITOUS AND USER FRIENDLY, SO WILL ITS CRIMINAL USE INCREASE. WE MUST ALL RECOGNIZE THIS GRAVE REALITY AND THE ADVERSE IMPACT ON EFFECTIVE LAW ENFORCEMENT AND THE SAFETY OF THE AMERICAN PUBLIC.

IN A RECENTLY RELEASED PAPER BY THE BRITISH GOVERNMENT ENTITLED "ENCRYPTION AND LAW ENFORCEMENT", SEVERAL CASE EXAMPLES WERE CITED WHERE ENCRYPTION HAD BEEN USED IN FURTHERANCE OF SERIOUS CRIMINAL ACTIVITY IN THE UNITED KINGDOM. THE PAPER NOTED THAT THE "DEVELOPMENT OF ENCRYPTION TECHNOLOGY GIVES RISE TO A NUMBER OF CHALLENGES TO LAW ENFORCEMENT, SECURITY AND INTELLIGENCE AGENCIES. IN PARTICULAR, ITS WIDESPREAD USE WILL HAVE AN EFFECT ON THE ABILITY OF THESE AGENCIES TO MAKE USE OF LAWFULLY INTERCEPTED COMMUNICATIONS AND RETRIEVED DATA FOR LAW ENFORCEMENT PURPOSES." ADDITIONALLY, THE PAPER EMPHASIZED THE IMPORTANT ROLE THE USE OF LAWFUL COMMUNICATION INTERCEPTIONS PLAY IN PROTECTING SOCIETY FROM CRIME AND TERRORISM AND CONCLUDES "THAT THE DEVELOPMENT OF ELECTRONIC COMMUNICATIONS, WHICH PROMISES MANY BENEFITS TO BUSINESSES AND INDIVIDUALS, SHOULD NOT ALSO GIVE ASSISTANCE TO THOSE WHO ARE ENGAGED IN SERIOUS CRIME."

THE PAPER SET FORTH THE FOLLOWING CASE EXAMPLES:

1) A 1995 CHILD PORNOGRAPHY INVESTIGATION INVOLVING TWO SUSPECTED PEDOPHILES WHO USED THE INTERNET TO DISTRIBUTE PORNOGRAPHIC IMAGES OF CHILDREN THAT WAS SEVERELY HAMPERED BY THE USE OF ENCRYPTION BY THE PRIMARY SUSPECT OF THE INVESTIGATION;

2) A 1996 INVESTIGATION OF A NORTHERN IRISH TERRORIST GROUP IN WHICH A COMPUTER WAS SEIZED CONTAINING ENCRYPTED FILES CONCERNING POTENTIAL TERRORIST TARGETS, INCLUDING POLICE OFFICERS AND POLITICIANS; AND

3) A 1998 ATTEMPTED MURDER AND SEXUAL ASSAULT INVESTIGATION THAT WAS IMPEDED BY THE DISCOVERY OF RELEVANT ENCRYPTED FILES ON A SUSPECT'S COMPUTER.

SINCE APRIL OF 1993, THE ADMINISTRATION HAS EXPRESSED SUPPORT FOR THE ADOPTION OF A BALANCED ENCRYPTION POLICY THAT MEETS THE COMMERCIAL NEEDS OF INDUSTRY FOR ROBUST ENCRYPTION WHILE AT THE SAME TIME MEETING THE PUBLIC SAFETY NEEDS OF LAW ENFORCEMENT. ADMINISTRATION OFFICIALS HAVE BEEN ATTEMPTING TO WORK WITH REPRESENTATIVES OF INDUSTRY TO ENCOURAGE THE VOLUNTARY DEVELOPMENT, SALE, AND USE OF RECOVERABLE ENCRYPTION PRODUCTS WITHIN THE U.S.

THE ADMINISTRATION CONTINUES TO SUPPORT A VOLUNTARY APPROACH TO ADDRESS LAW ENFORCEMENT=S PUBLIC SAFETY CONCERNS REGARDING AND PROLIFERATION AND USE OF COMMERCIALLY-AVAILABLE ENCRYPTION PRODUCTS WITH IN THE UNITED STATES THROUGH THE USE OF GOOD FAITH DIALOGUE, MARKET-FORCES, INFLUENCE AND INDUCEMENTS (MAINLY LIMITED REGULATORY CHANGES TO EXISTING EXPORT CONTROLS ON RECOVERABLE ENCRYPTION PRODUCTS AND TO ENCOURAGE GOVERNMENT PROCUREMENT OF THESE PRODUCTS). U.S. LAW ENFORCEMENT REMAINS OPTIMISTIC THAT SUCH A VOLUNTARY APPROACH WILL BE SUCCESSFUL IN ADDRESSING OUR PUBLIC SAFETY NEEDS AND WE ARE PLEASED WITH INDUSTRY'S WILLINGNESS TO WORK WITH US THUS FAR.

ON MARCH 4, 1998, THE VICE PRESIDENT ANNOUNCED AN ADMINISTRATION INITIATIVE TO TRY AND BRING ABOUT THE VOLUNTARY DEVELOPMENT OF TECHNICAL SOLUTIONS THAT ADDRESS LAW ENFORCEMENT=S PUBLIC SAFETY NEEDS BY CALLING FOR GOOD FAITH DIALOGUE BETWEEN INDUSTRY AND LAW ENFORCEMENT RATHER THAN SEEKING TO LEGISLATE DOMESTIC CONTROLS AT THAT TIME. SUCH GOOD FAITH DIALOGUE EFFORTS REMAIN ONGOING. IN FACT, REPRESENTATIVES FROM THE FBI AND U.S. INDUSTRY HAVE BEEN MEETING ON A REGULAR BASIS AS PART OF THIS EFFORT TO BUILD A WORKING RELATIONSHIP THAT WILL FOSTER THE DEVELOPMENT AND USE OF RECOVERABLE ENCRYPTION PRODUCTS. WHILE WE STILL HAVE MUCH WORK TO DO, THESE DISCUSSIONS HAVE BEEN USEFUL AND WE REMAIN COMMITTED TO WORKING WITH INDUSTRY IN AN EFFORT TO TRY AND FIND MUTUALLY BENEFICIAL SOLUTIONS TO THESE IMPORTANT PUBLIC SAFETY CHALLENGES.

ADDITIONALLY AND OF SIGNIFICANCE TO LAW ENFORCEMENT, ON SEPTEMBER 16, 1998, THE ADMINISTRATION FORMALLY EXPRESSED SUPPORT FOR THE CREATION OF THE FBI'S TECHNICAL SUPPORT CENTER TO SERVE AS A CENTRALIZED LAW ENFORCEMENT COUNTER-ENCRYPTION RESOURCE AND PROVIDED OUR NATION'S LAW ENFORCEMENT COMMUNITY WITH URGENTLY NEEDED TECHNICAL CAPABILITIES TO FULFILL ITS INVESTIGATIVE RESPONSIBILITIES IN LIGHT OF THE EVER INCREASING PROLIFERATION AND USE OF STRONG, COMMERCIALLY-AVAILABLE, NON-RECOVERABLE ENCRYPTION PRODUCTS WITHIN THE U.S. THIS RESOURCE, WHEN FULLY ESTABLISHED, WILL SUPPORT FEDERAL, STATE AND LOCAL LAW ENFORCEMENT BY DEVELOPING A BROAD RANGE OF EXPERTISE, TECHNOLOGIES, TOOLS AND TECHNIQUES TO RESPOND DIRECTLY TO THE PUBLIC SAFETY THREAT POSED BY THE PROLIFERATION AND WIDESPREAD USE OF ENCRYPTION BY CRIMINALS AND TERRORISTS. THE CREATION OF THIS CENTRALIZED LAW ENFORCEMENT RESOURCE WITHIN THE FBI ENJOYS THE SUPPORT OF THE INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE, THE NATIONAL SHERIFF'S ASSOCIATION, THE NATIONAL DISTRICT ATTORNEYS ASSOCIATION AND OTHER FEDERAL, STATE AND LOCAL LAW ENFORCEMENT AGENCIES. IN FACT, WE HAVE ALREADY BEGUN THE PROCESS OF ESTABLISHING THIS IMPORTANT CENTRALIZED LAW ENFORCEMENT RESOURCE THROUGH ENHANCEMENTS TO OUR CURRENT TECHNICAL CAPABILITIES AND THROUGH CONSULTATION WITH THE INDUSTRY OVER THE PAST YEAR.

HOWEVER, WE MUST RECOGNIZE THAT TECHNOLOGY AND TECHNICAL EXPERTISE ALONE CANNOT AND WILL NOT OFFER THE "SILVER BULLET SOLUTION." THE WIDESPREAD PROLIFERATION AND USE OF NON- RECOVERABLE ENCRYPTION BY CRIMINALS, TERRORISTS AND SPIES WILL QUICKLY OVERWHELM ANY POSSIBLE LAW ENFORCEMENT TECHNICAL RESPONSE.

IF PUBLIC POLICY MAKERS ACT WISELY, THE SAFETY OF ALL AMERICANS WILL BE ENHANCED FOR DECADES TO COME. BUT IF NARROW INTERESTS PREVAIL, THEN LAW ENFORCEMENT WILL BE UNABLE TO PROVIDE THE LEVEL OF PROTECTION THAT THE AMERICAN PEOPLE PROPERLY EXPECT AND DESERVE.

CONCLUSION

LAW ENFORCEMENT IS NOT ASKING THAT THE MAGNIFICENT ADVANCES IN ENCRYPTION TECHNOLOGY BE ABANDONED. WE ARE THE STRONGEST PROPONENTS OF ROBUST, RELIABLE ENCRYPTION MANUFACTURED BY AMERICAN COMPANIES AND SOLD ALL OVER THE WORLD. OUR POSITION IS SIMPLE AND, WE BELIEVE, VITAL. ENCRYPTION IS CERTAINLY A COMMERCIAL INTEREST OF GREAT IMPORTANCE TO THIS GREAT NATION. BUT IT IS NOT SOLELY A COMMERCIAL OR BUSINESS ISSUE. TO THOSE OF US CHARGED WITH THE PROTECTION OF PUBLIC SAFETY AND NATIONAL SECURITY, ENCRYPTION TECHNOLOGY AND ITS APPLICATION IN THE INFORMATION AGE--HERE AT THE DAWN OF THE 21ST CENTURY AND THEREAFTER--WILL BECOME A MATTER OF LIFE AND DEATH IN MANY INSTANCES WHICH WILL DIRECTLY IMPACT ON OUR SAFETY AND FREEDOMS. GOOD AND SOUND PUBLIC POLICY DECISIONS ABOUT ENCRYPTION MUST NOT BE LEFT SOLELY TO PRIVATE ENTERPRISE. ENCRYPTION LEGISLATION THAT DOES NOT BALANCE THE PUBLIC SAFETY OF OUR CITIZENS WITH THE INTEREST OF AND PRIVATE ENTERPRISE SHOULD NOT BE ENACTED.

MOST IMPORTANTLY, WE ARE NOT ADVOCATING THAT THE PRIVACY RIGHTS OR PERSONAL SECURITY OF ANY PERSON OR ENTERPRISE BE COMPROMISED OR THREATENED. YOU CAN=T YELL AFIRE@ IN A CROWDED THEATER. YOU CAN=T WITH IMPUNITY COMMIT LIBEL OR SLANDER. YOU CAN=T USE COMMON LAW HONORED PRIVILEGES TO COMMIT CRIMES.

IN SUPPORT OF OUR POSITION FOR A RATIONAL ENCRYPTION POLICY WHICH BALANCES PUBLIC SAFETY WITH THE RIGHT TO SECURE COMMUNICATIONS, WE RELY ON THE FOURTH AMENDMENT TO THE CONSTITUTION. THERE THE FRAMERS ESTABLISHED A DELICATE BALANCE BETWEEN ATHE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS (TODAY WE MIGHT ADD PERSONAL COMPUTERS, MODEMS, DATA STREAMS, DISCS, ETC.) AGAINST UNREASONABLE SEARCHES AND SEIZURES.@ THOSE PRECIOUS RIGHTS, HOWEVER, WERE BALANCED AGAINST THE LEGITIMATE RIGHT AND NECESSITY OF THE POLICE, ACTING THROUGH STRICT LEGAL PROCESS, TO GAIN ACCESS BY LAWFUL SEARCH AND SEIZURE TO THE CONVERSATIONS AND STORED EVIDENCE OF CRIMINALS, SPIES AND TERRORISTS.

THE PRECEPTS AND BALANCE OF THE FOURTH AMENDMENT HAVE NOT CHANGED OR BEEN ALTERED. WHAT HAS CHANGED FROM THE LATE EIGHTEENTH TO THE LATE TWENTIETH CENTURY IS TECHNOLOGY AND TELECOMMUNICATIONS WHICH HAVE EVOLVED WELL BEYOND THE CONTEMPLATION OF THE FRAMERS.

THE UNCHECKED PROLIFERATION OF NON-RECOVERABLE ENCRYPTION WILL DRASTICALLY CHANGE THE BALANCE OF THE FOURTH AMENDMENT IN A WAY WHICH WOULD SHOCK ITS ORIGINAL PROPONENTS. POLICE SOON MAY BE UNABLE THROUGH LEGAL PROCESS AND WITH SUFFICIENT PROBABLE CAUSE TO CONDUCT A REASONABLE AND LAWFUL SEARCH OR SEIZURE, BECAUSE THEY CANNOT GAIN ACCESS TO EVIDENCE BEING CHANNELED OR STORED BY CRIMINALS, TERRORISTS AND SPIES. SIGNIFICANTLY, THEIR LACK OF FUTURE ACCESS MAY BE IN PART DUE TO POLICY DECISIONS ABOUT ENCRYPTION MADE OR NOT MADE BY THE UNITED STATES. THIS WOULD UPSET OF THE BALANCE SO WISELY SET FORTH IN THE FOURTH AMENDMENT ON DECEMBER 15, 1791. I URGE YOU TO MAINTAIN THAT BALANCE AND ALLOW YOUR POLICE DEPARTMENTS, DISTRICT ATTORNEYS, SHERIFFS AND FEDERAL LAW ENFORCEMENT AUTHORITIES TO CONTINUE TO USE THEIR MOST EFFECTIVE TECHNIQUES TO FIGHT CRIME AND TERRORISM--TECHNIQUES WELL UNDERSTOOD AND AUTHORIZED BY THE FRAMERS AND CONGRESS FOR OVER TWO HUNDRED YEARS.

I LOOK FORWARD TO WORKING WITH YOU ON THIS MATTER AND AT THIS TIME WOULD BE PLEASED TO ANSWER ANY QUESTIONS.



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