DOJ Seeks Search Powers For Encryption Keys

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August 20, 1999 (11:09 AM EDT)

By Mary Mosquera,

A Clinton administration plan to allow law enforcement to break into homes or offices to obtain computer passwords to access encrypted data eliminates some core U.S. civil liberties, privacy groups said Friday.

The Justice Department is planning to ask Congress for new authority allowing federal agents with search warrants to secretly break into homes and offices to obtain passwords, decryption keys to unscramble data, and implant recovery devices to gather evidence, said the Center for Democracy and Technology, a Washington privacy group that obtained a copy of the Aug. 5 legislative memo.

"This strikes at the heart of the Bill of Rights," said David Sobel, general counsel for the Electronic Privacy Information Center, another advocacy group in Washington. "It would be truly ironic if the use of encryption, which is designed to protect privacy, gave the police a green light to secretly break into homes."

Law enforcement said it is hampered in drug trafficking, terrorism, and child pornography investigations by unrecoverable encryption, which allows only the intended receiver to read the data. Justice officials have told lawmakers in hearings considering encryption legislation that relaxing export controls on strong encryption products will spur the pervasive use of the secure technology. Several committees have approved the Security and Freedom Through Encryption, or SAFE Act.

Rep. Bob Goodlatte, (R-Va.), the SAFE Act's principal advocate, called the Justice proposal unprecedented.

"This is basically the fulfillment of what FBI Director Louis Freeh said during hearings; that America needs a new Fourth Amendment on search and seizure for the information age," Goodlatte said.

Historically, the United States has sought a balance between protecting the rights of individuals and the need for law enforcement, the DOJ said in its proposed Cyberspace Electronic Security Act. Law enforcement must have the ability to collect evidence of criminal activity even when encryption software is used.

"Failure to adequately address this need provides criminals with a safe haven not available before," the DOJ said in its legislative memo.

The legislation would provide for individual protections and limits the ability of government to obtain plain text to specific circumstances, the DOJ said.

The Cyberspace Electronic Security Act lays down procedures under which law enforcement can obtain a search warrant with delayed notice to access evidence. Investigators already must show probable cause to gain a search warrant.

"To delay notice, the government must prove that it has good cause to do so," the DOJ said.

The search warrant may authorize search and seizure of decryption keys or the installation of a recovery device that allows plain text to be obtained even if attempts were made to protect it through encryption, the DOJ said.

"This boils down to breaking and entering and hacking," Goodlatte said.

The Justice proposal is a huge expansion of search procedures and narrowly defined exceptions, said Jim Dempsey, senior staff counsel at the Center for Democracy and Technology (CDT). The courts have historically required that government notify and show a warrant to the subject of the search.

"The proposal takes extraordinary cases at the fringes of the law and makes them routine, given the increasingly ubiquitous nature of computers," Dempsey said.

The proposal also details how government can access keys and other forms of decryption assistance stored with third parties, CDT said.

The latest administration surveillance plan follows the revelation last month of the FBI's Federal Intrusion Detection Network, or FidNet, that will monitor non-military government computers and the communications networks of industries such as banking, telecommunications, and transportation.