It Came from Planet Clipper: The Battle Over Cryptographic Key 'Escrow'

Abstract

Introduction briefly sketches the export-control regime as it applies to cryptography, and discuss the evolving goals of U.S. cryptography policy. The three main sections of this paper are each devoted to a phase of the U.S. government's recent attempts to keep the cryptography genie in the bottle in the face of increasing commercial and political pressure to loosen or abolish cryptographic export control. Part I offers a quick summary of the late, unlamented Clipper chip initiative. Part II describes the Clinton Administration's proposal for software-based key “escrow.” Part III, the longest part, begins in section A by discussing recent technical and political changes that make the current export control policy increasingly difficult to maintain. Section B examines the Administration's cryptographic “White Paper” which proposes legislation to require that the national information infrastructure be designed to ensure that any communication, and any transaction, that it facilitates is exposed to possible government monitoring. Section C briefly surveys international initiatives, at least welcomed and perhaps orchestrated by the United States government, that might result in transnational controls on the use of strong cryptography by both citizens and enterprises. Part IV, the conclusion, returns to the subject of trust and discusses Congress's role in the formation of a national cryptography policy. A postscript added shortly before this Article went to press offers a preliminary analysis of some features of the Clinton Administration's October 1996 encryption proposal.

Overall, this Article aims to describe the issues in a rapidly changing and complex legal and technical debate. It also identifies significant legal and technical issues that current government proposals do not resolve. Rather than attempt to prescribe the content of a solution, however, the prescriptive portion concentrates on policy-formation procedures likely to be conducive to a resolution of the debate.

Keywords: cryptography, clipper chip, cyberlaw, cryptographic key escrow