From: Zhahai.Stewart@f93.n104.z1.fidonet.org (Zhahai Stewart)
Newsgroups: comp.org.eff.talk
Subject: Best Case Scenario
Date: 10 Nov 92 19:56:36 GMT
Article-I.D.: puddle.18685.2B02FE99
Organization: FidoNet node 1:104/93 - Adelante, Boulder CO


 I know how frustrating it can be when one is making a proposal, and
 some group is more intent on shooting it down based on rough edges,
 than on cooperating to smooth those edges.  "Darn it, instead of opening
 holes in it, help me fix the fixable holes, so we can see if the 
 proposal is inherently unseaworthy or just unfinished."  I could imagine 
 that those proposing registration of keys used on public networks 
 might feel this way now.  In a spirit of fair discussion, I will 
 describe the best scenario I can forsee for such a proposal; I still 
 disagree with this approach, as will be described after.

 This is basically the opposite of a strawman argument, in case anyone
 notices: try to help the opponents make their best possible case, and
 then show that even so it is fundamentally flawed.  Here is my try at
 designing the most abuse-proof compromise for registering keys:

 ** start of scheme **

 1. Anyone is allowed to make and use any encryption keys or schemes
 they desire, so long as they are not used for encryption on a clearly 
 defined set of "regulated public networks"; however, they can be used 
 there for authentication.  Encryption on your own media, or over 
 private networks (including your ethernet), or on a floppy disk 
 handed to someone else, etc would not be regulated.  AFTER indictment, 
 a court could still use fifth amendment immunity to attempt to get a 
 key from somebody, just as it can today with the combination to a safe,
 or the location of evidence.

 2. On the "regulated public networks", encryption would be allowed only
 with temporary, disposable keys or keypairs whose secret keys were 
 registered as described below.  Disposable keys would be self-certified
 using non-registered keys (those used in #1 above).  Authentication
 would not be regulated.  The only penalty for violation would be denial 
 of service, after due process.

 3. Registration of keys: a new class of private organization, modeled
 somewhat after banks, and especially Swiss banks, would be created to
 handle registration of temporary, disposable keys.  A large number of
 these could be chartered; let's suppose a minimum of a dozen.  Any
 disposable key to be used on a regulated public network would be
 divided into 4 sections via secret-sharing schemes, such that any 3
 sections (but no fewer) could be re-combined to produce the key.  The
 user would be allowed to freely choose which 4 certified key-banks 
 they wished to use, based on cost or history of trustworthyness.  
 Records of these disposable keys would be kept for some specified
 maximum time, then destroyed.  Users could change disposable 
 registered keys as often as desired, subject to pragmatic 
 considerations.  (Remember that the authentication needed for 
 commercial transactions can be done with a non-registered and more 
 persistent key).

 4. Law enforcement agencies could present court orders to any given
 user's designated key-banks, for the disposable keys covering a 
 given date range.  Separate court order would be needed to delay
 notification of this disclosure to the key owner, for at most some
 maximum period (eg: for an ongoing investigation).

 5. The legislation chartering key-banks would also provide substantial
 financial (civil suit) and criminal penalties for the organization
 and/or its human agents, in the case that it violated its position
 of trust via unauthorized disclosure of key material to private OR
 governmental agencies.  Both the organization, and individual 
 employees, would have serious incentives to check warrants closely,
 and not to get accidentally or deliberately "sloppy" about procedures.
 Likewise, civil and criminal penalties would be provided for those
 outside the organizations who attempt (with or without success) to
 subvert the key-bank, whether private individuals and governmental 
 employees.  An ongoing program of financial rewards for information 
 leading to convictions under this law would be established.  Special 
 prosecutors would be authorized in cases involving delinquency by the 
 authorities.

 ** end of scheme **

 OK, that's about the best case I can come up with on the spur of the
 moment.  Maybe someone else can do better (ie: a better scheme which
 would allow court-authorized decryption with fewer vulnerabilities).

 Personally, I still prefer having no regulation about the use of
 encryption; the court's only authority would be to attempt to compel
 disclosure after indictment and after immunity from self-incrimination.

 I see registration of keys as a greater intrusion than wiretapping,
 in that it is not a "passive" system, but directly interferes with the
 freedom of choice for the vast majority of non-criminal users.  That
 is, currently telephone lines can be tapped, legally or illegally, but
 there is no requirement that one must speak only in "registered 
 languages" on the phone, or cannot make oblique references to friends 
 ("code words"), or must send mail only in envelopes which can be 
 easily opened in transit without detection, or must provide in advance
 the combination of any locked briefcase transported over state lines.
 The tapping or monitoring is passive, and imposes no restrictions on
 freedom of choice for honest citizens.  The "registered keys" proposal,
 even in the "most benign" form described above, is NOT passive, and
 imposes considerable restrictions on communications freedom on 
 everybody, in order to aid law enforcement in prosecuting a tiny 
 minority (one to ten thousand people in a nation of 1/4 billion).
 This is a new and ominous imposition, which is not justified by any
 analogy to wiretapping; it is not "just preserving the status quo".
 It is also the first step towards regulating data formats and human
 languages used - if the principle is established that all citizens
 have a duty to minimize the cost and difficulty of monitoring their
 communications in aid of their own potential future prosecutions, then
 why should they be allowed to "hide" by speaking Lithuanian?  Or by
 using a data compression format their local Sheriff's Department does
 not know how to decompress (gasp - even a proprietary one!).  Some may
 scoff, but I believe that we have to hold the line here, at an important
 conceptual demarcation between passive monitoring of the few and active 
 restriction of freedom for all.  Whenever a major boundary is crossed,
 the little ones follow.  At one stage, allowing wiretapping was a new
 extension of government power, not popular with all; now that is taken
 as a "normal and natural" privilege of law enforcement, and used as a
 justification for yet further extensions "in a similar vein".  I am
 completely convinced that if key registration were approved, within a
 few years we would see other intrusions justified as "analogous to
 the now well established principles of regulation of encryption".
 As in "Does it make sense to create a multibillion dollar high tech
 monitoring and decryption system for the nation, only to let it be
 hampered by the use of unregistered compression algorithms!".  Once
 we concede the principle, we will be on weaker ground fighting each
 additional "detail" in the surrendering of our rights to privacy, each
 of which is "not much worse that what we've already accepted".

 So my opposition to the registration of keys is profound and considered,
 and not based merely on the "rough edges" of early proposals.  I do not
 believe that my concerns can be addressed merely by refining such
 proposals, as I have done above, because the fundamental premises of
 such extensions of government power are in question, not just the 
 details of implementation.

 Respectfully, Zhahai Stewart

 Copy and reprint as desired, with attribution.


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