The Clipper Chip Controversy

The computer linked to the telephone line created not only de facto national database but also the popular Internet. As the newest communication method, the Internet attracts more and more users every year. One of the privacy concerns involved in the use of the Internet lies in the application of encryption codes to gain as much privacy in using e-mail as using regular mail. To guard against computer hackers who may intercept and read private e-mail, people increasingly use encryption. The government intelligent agencies feared that the widespread use of the almost unbreakable encryption would breed criminal activities. The problem rises not from the growth of criminal activities but from the inability of the government intelligent agencies to break the encryption to detect and catch the culprits. To make the inaccessible accessible, the agencies proposed the Clipper Chip as the encryption method for people to use. Because the Clipper Chip allows the government to hold the key to decrypt, the controversy ensued between the proponents and the opponents of the implementation of the Clipper Chip. The examination surrounding the Clipper Chip proposal as the last topic in the types of the violations of privacy evinces the exigency for progressive clearer legislations in consideration of the advancing telecommunication technology.

The National Security Agency and the National Institute for Standards and Technology designed the Clipper Chip to be used in lieu of RSA and DES, currently the two most popular encryption method. Both systems rely on a "key" to encode and decode. The "key" consists of bits or series of number and an algorithm. (Denning, American Scientist, p. 319) In the case of RSA, a pair of keys are used in which the message is encoded by either the public key or by the sender's secret key and decoded by the receiver's secret key or the public key respectively. The RSA algorithm achieves security because of the difficulty of factoring a large number into two primary numbers. (Denning, IEEE Spectrum p. 31) The DES uses only one secret key to encode and decode using the same principles. (Denning, American Scientist, p. 320) Both systems are difficult to break because of the use of large primary numbers. The Clipper Chip runs on 80-bit keys and a secret encryption algorithm called "Skipjack." The security for this encryption comes from requiring both two 40-bit decoder keys which are to be placed in escrow with two government agencies. The agencies would be authorized to hand the keys to the law-enforcement agencies only with probable cause of crime being committed. (Levin, p. 29) Hence, government agencies would be able to decode if necessary. The controversy stems from this escrow security system of the Clipper Chip and the possibility of the government to abuse the "back door".

The proponents of the Clipper Chip argue that the proposal enables "law-abiding citizens with access to the encryption they need and [prevents] criminals from using it to hide criminal activity." (Levin, p. 29) A Clipper Chip proponent, Dorothy E. Denning makes several points in favor of the Clipper Chip proposal. Three pertains to the discussion of the privacy rights. Denning first argues that although present law states does not explicitly state that communication service providers must incorporate systems which will insure that the law enforcement agents have the capability to intercept data, the law does state that the communication providers must assist those law-enforcement agents with warrants. The law naturally lacks the provision because at the time of the enactment of the law, legislators did not anticipate technological advances. Hence, in today's society, we must interpret the meaning of the word "assist" more flexibly. (Denning, Communications of the ACM, p. 27)

Denning's line of argument assumes that the if the legislators at the time of the enactment of the wiretapping law anticipated technological advancement today, they probably would have explicitly required the system providers to use the systems which the law-enforcers can intercept. In light of the public concern over intrusiveness of the wiretapping, "Congress intended that wire surveillance be difficult." (Branscomb, p. 36) Because of public reaction against the court's inaction, the legislation took the action to curb wire surveillance. Although Congress could not have known how far technology would progress, the enactment of the wiretapping law did not intend or imply the facilitation of the wire surveillance for the government agencies. Denning misconstrues this intention by taking the word "assist" out of context. The basic purpose of enacting the wiretapping law is to allow as few wiretapping as possible, not to aid the intelligent agencies in wire surveillance.

A second major point made by Denning relates to the right of privacy and directly addresses the concern about a decrease in the level of privacy due to the use of the Clipper Chip. She argues that because the service providers must route the tapped line to the law-enforcement agents and "the connection to a remote government monitoring facility would support an outgoing data stream only...[it] does not impose any new or additional danger to the security of the systems and the privacy of the people who rely on them for their communications." (Denning, Communications of the ACM, p. 28) She maintains that the privacy level will not decrease because the "employees of the service providers who have been strict about requiring court orders" must initiate the tap not the law-enforcers. (Denning, Communications of the ACM, p. 28)

In reality the threat to privacy will not diminish and may well increase. Despite Denning's claim that the employees have been "strict about requiring a court order," I have pointed out earlier that the employees of the telephone company have been known to cooperate and to monitor unofficially for law-enforcers so that the warrants could be obtained to legitimize the wiretapping. The Clipper Chip proposal does not attempt to reduce such risk. Denning also assumes, with more faith than most people, that the government will not abuse its power. In fact, with the government agents holding the capability to decode, the governmental abuse of the power becomes more likely. Given the history of governmental abuse of power, such as Nixon's "enemy lists" to the Iran-Contra affair to name a few, (Branscomb, p. 36) more than a huge leap of faith must be made to entrust government agencies with the keys to the encryption.

At the same time, Marc Rotenberg points out that the reasoning that the intelligence agencies only want access not the remote monitoring capability simply does not obviate the fact that the proposal intends to set up a "government monitoring facility." (Rotenberg, p. 38) By endorsing the monitoring capability, people cannot expect privacy even though the quintessential reason for using the encryption is for privacy. Hence even if by practice those who use the system will not lose privacy, people will not expect privacy to be preserved because people will perceive the omnipresent monitoring capability of the government in using the Clipper Chip. This apprehension violates the privacy of the Clipper Chip users by changing the perception of the degree of privacy maintained or not maintained. The users lose a sense of freedom and personal space. By losing certain personal space, the users will also lose some privacy.

A final argument by Denning that pertains to the discussion of privacy involves the social contract theory. Denning argues that a contract "strikes a balance between our rights to privacy and to an orderly society." (Denning, Communications of the ACM , p. 32) Hence, people do not have "absolute" privacy. In using cryptography, users can have absolute protection or privacy but Denning states that neither is necessary. (Denning, Communications of the ACM, p. 32)

On the surface, Denning's argument seems persuasive enough. Compromises must be made for a harmonious society. As she points out, regulations already exist in our speech such as slander, obscenity, and libel; striking a balance between privacy and protection equals the same type of regulation for the society. (Denning, Communications of the ACM, p. 32) The balancing act, however, runs deeper than simply for "an orderly society." The law balances rights when the one right clashes or conflicts with another right. The individual rights remain absolute as long as it does not encroach on other person's rights. Denning's example of the regulation of speech reflects the balance of a person's right to speak freely so long as the speaker does not injure another person or another person's rights. Is the protection or security of the nation one of the rights to be balanced with privacy rights? Indeed, does the Constitution balance "individual rights such as privacy with the government's responsibility to protect our liberties by enforcing the laws?" (Denning, Communications of the ACM, p. 43)

The government certainly has the "responsibility to protect," but the cost of protection must not come at the expense of the rights unconsented by the individuals. The belief that the people have an "inalienable and natural rights" which cannot be suppressed by the power of the government built the foundation of the United States of America. To balance the privacy right with the government's power to protect "shifts the balance of power and control to...[the] government," (Godwin, p. 35) colliding against the principles of the social contract drawn by the founding fathers in the Constitution. The social contract reflects the agreement between the people and the government on how much power the people consent for the government to have and exert. The social contract between the people and the government exists so long as the government use its powers within the due process of law and the people agree to the outcome of the due process of law. With the due process of law as a vehicle for maintaining the social contract, the government uses its power without compromising certain "natural and inalienable" rights of the individuals in a way unspecified by the Constitution, our social contract. Hence, by allowing the government to expand its power at the expense of the right to privacy breaches the contract between the people and the government because such action compromises the individual rights without the consent from the people.

The major justification for the implementation of the Clipper Chip is simply that "the government needs the ability to catch criminals and thwart terrorists." (Canon, p. 23) The opponents of the Clipper Chip solution, however, point out that if the Clipper Chip is implemented, "anyone who uses Clipper for the conduct of organized crime is dumb." (Barlow, p. 22) Why would anybody commit a crime using an encryption system of which the government holds the decoding key? Most of the criminals will simply use other encryption. (Canon, p.23) Unless the government mandates the use of the Clipper Chip, concludes John Perry Barlow. (Barlow, p. 23)

If the government does not mandate the use of the Clipper Chip, one can only reasonably conclude that government intelligence agencies may want the implementation of the Clipper Chip to monitor "businesses and private citizens" (Canon, p. 23) since most criminals will use a different encryption. As explained earlier, surveillance cannot occur without violating the privacy of the users of the encryption. No one would question the privacy of a regular mail. By being able to decode without the user's knowledge, the government would be violating privacy in an analogous manner as opening a sealed letter.

How about mandating the key escrow system? With the mandate of Clipper Chip, "any transmission encoded by some other algorithm would stick out like a licorice dot." (, p. 23) Hence, using a different encryption will seem conspicuous and suspicious. By being forced to use one kind of encryption for fear of being suspected, the users have no choice left other than to accept that by using the encryption they will be susceptible to government surveillance. The only other alternative would be to not use any encryption and risk the interception and the exposition of private, sometimes vital, information to any malicious hackers and the government. Forced to the scrutiny of the government, the individuals using the encryption would lose privacy more than if the law-enforcements simply wiretapped to listen in on the phone conversation.

Prohibited by the Fourth Amendment from making secret searches, law-enforcement must announce themselves before entering and only seize property after serving the owner with a warrant. Although the law does permit eavesdropping for wiretapping purposes, the law does not permit secret seizure of a record of that conversation. (Barlow, p. 24) Unfortunately, in electronic communication, the key to the encryption would open up "not only the phone line but the filing cabinet." (Barlow, p. 24) Consequently, the loss of privacy through monitoring the electronic communication becomes even greater by the amount of information that could be seized.

This grim picture is the worst scenario; at the moment, the government asserts that it has no intention of mandating the Clipper Chip. (Barlow, p. 24) However, painting the extreme worst scenario of case elucidates how much privacy rights can be violated. Although the argument for not accepting the Clipper Chip cannot depend on the potential of the worst case, the picture focuses on the method and the extent of the privacy violations that can occur. Even if the government chooses not to monitor to the extreme, the frightening fact still remains that the use of the Clipper Chip will result in privacy loss.