Bowing to political pressures and what legal experts said would be inevitable constitutional attacks, the Clinton administration's top official on encryption policy has backed away from a controversial proposal to regulate domestic use of encryption.
It came one day after FBI director Louis Freeh sparked fierce criticism from civil libertarians and the high-tech industry when he told a Senate subcommittee that a law should be passed requiring all encryption software used in the United States to have a back door that would allow police to intercept and read coded communications. (See related story)
While laws regulate the export of encryption technology and propose a back-door scheme known as key escrow or key recovery, the government hasn't pushed for such requirements on the use of cryptography inside U.S. borders.
"What [Freeh] proposed was not the administration's policy," Commerce Department Undersecretary William Reinsch told Reuters yesterday.
Legal experts said the reversal is prudent because a law requiring key escrow would be subject to numerous legal challenges. However, these challenges would by no means be a slam dunk, they noted.
"In the unlikely event that both houses of Congress were to pass mandatory key escrow, it would be immediately challenged [in court]," said Michael Froomkin, an associate professor at the University of Miami law school who has written about mandatory escrow. However, "there would be very strong grounds for the challenge but unfortunately not so strong that the result [of the case] would be absolutely certain."
Added Curt Karnow, a partner at Sonnenschein Nath & Rosenthal and a former federal prosecutor. "This sort of proposal has on the other side of it not only people who are interested in civil rights on the Internet but high-technology people too. People who buy these products are not going to sign up to a program where their keys get escrowed with the government."
Karnow and Froomkin said Freeh's proposal would be vulnerable to attacks based on the First, Fourth, and Fifth Amendments as well as constitutional guarantees to privacy.
Probably the strongest challenges stem from free-speech rights grounded in the First Amendment. Rights advocates argue that key escrow could have a chilling effect on speech and could be considered compelled speech. Both are generally in violation of the Constitution.
The Fourth Amendment guarantee against illegal searches and seizures and Fifth Amendment rights against self-incrimination would also provide fodder for opponents, as would precedent-setting court decisions establishing there is a constitutional right to privacy.
Key escrow is so named because users would be required to deposit the key needed to decode encrypted messages with an entity that would turn it over to the government when presented with a court order.
Lori Fena, executive director of the Electronic Frontier Foundation, said her group wouldn't hesitate to challenge any law proposing mandatory key escrow. EFF has already played a central role in a University of Illinois professor's court challenge of export restrictions on encryption. (See related story)
Following Freeh's speech Wednesday, Sen. Dianne Feinstein (D-California) announced she backed the FBI director's proposal. While the Clinton administration remains opposed to the scheme, it does support a bill making the rounds in the Senate.
The so-called Secure Public Networks Act, sponsored by Sens. John McCain (R-Arizona) and Bob Kerrey (D-Nebraska) would require all computer systems supported by government funds to deploy key escrow. The bill clearly would apply to universities and government computer systems and could possibly apply to the Internet, since government money helps fund it, key recovery opponents say.
One of a handful of bills involving encryption now before Congress, it would also pressure those involved in electronic commerce to use key escrow.
While removed from the sweeping proposal Freeh floated as a trial balloon Wednesday, there is no assurance the McCain-Kerrey bill won't face its own constitutional challenges.
Edward Radlo, an encryption attorney at Fenwick & West, said "I think there would be big litigation over it, but not as much as [over] the Louis Freeh proposal."
Reuters contributed to this report.