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Justice Dept. Pushes For Power to Unlock PC Security Systems

Covert Acts Could Target Homes, Offices

by Robert O'Harrow Jr.
Washington Post Staff Writer


The Justice Department wants to make it easier for law enforcement
authorities to obtain search warrants to secretly enter suspects'
homes or offices and disable security on personal computers as a
prelude to a wiretap or further search, according to documents and
interviews with Clinton administration officials.

In a request set to go to Capitol Hill, Justice officials will ask
lawmakers to authorize covert action in response to the growing use
of software programs that encrypt, or scramble, computer files, making
them inaccessible to anyone who does not have a special code or
"key," according to an Aug. 4 memo by the department that describes
the plan.

Justice officials worry that such software "is increasingly used as a
means to facilitate criminal activity, such as drug trafficking,
terrorism, white-collar crime, and the distribution of child
pornography," according to the memo, which has been reviewed by the
Office of Management and Budget and other agencies. 

Legislation drafted by the department, called the Cyberspace
Electronic Security Act, would enable investigators to get a sealed
warrant signed by a judge permitting them to enter private property,
search through computers for passwords and install devices that
override encryption programs, the Justice memo shows.

The law would expand existing search warrant powers to allow agents
to penetrate personal computers for the purpose of disabling
encryption. To extract information from the computer, agents would
still be required to get additional authorization from a court.

The proposal is the latest twist in an intense, years-long debate
between the government and computer users who want to protect their
privacy by encrypting documents.

Although Justice officials say their proposal is "consistent with
constitutional principles," the idea has alarmed civil libertarians
and members of Congress.

"They have taken the cyberspace issue and are using it as
justification for invading the home," said James Dempsey, senior
staff counsel at the Center for Democracy and Technology, an advocacy
group in the District that tracks privacy issues.

Police rarely use covert entry to pave the way for electronic
surveillance. For example, federal law enforcement agencies obtained
court approval just 34 times last year under eavesdropping statutes
to install microphones, according to the 1998 wiretap report issued by
the Administrative Office of the Unites States Courts.

David L. Sobel, general counsel at the Electronic Privacy Information
Center, predicted the number of secret break-ins by police would soar
if the proposal is adopted because personal computers offer such a
tantalizing source of evidence for investigators -- including memos,
diaries, e-mail, bank records and a wealth of other data.

"Traditionally, the concept of 'black bag' jobs, or surreptitious
entries, have been reserved for foreign intelligence," Sobel said.
"Do we really want to alter the standard for physical entry?"

The proposal follows unsuccessful efforts by FBI Director Louis J.
Freeh and other Justice officials to secure laws requiring computers
or software to include "back doors" that would enable investigators to
sidestep encryption.

Those proposals, most notably one called Clipper Chip, have been
criticized by civil libertarians and have received little support in
Congress.

In a snub of the administration, more than 250 members of Congress
have co-sponsored legislation that would prohibit the government from
mandating "back doors" into computer systems.

"We want to help law enforcement deal with the new technologies. But
we want to do it in ways that protect the privacy rights of
law-abiding citizens," said Rep. Robert W. Goodlatte (R-Va.), who
originally sponsored the legislation, known as the Security and
Freedom Through Encryption Act. Goodlatte said the Justice
Department's proposal might upset the "very finely tuned balance"
between law enforcement power and civil liberties.

But Justice Department officials say there is an increasingly urgent
need for FBI agents and other federal investigators to get around
encryption and other security programs.

"We've already begun to encounter [encryption's] harmful effects,"
said Justice spokeswoman Gretchen Michael. "What we've seen to date
is just the tip of the iceberg."

The proposed law also would clarify how state and federal authorities
can seek court orders to obtain software encryption "keys" that
suspects might give to others for safekeeping. Although few people
share such keys now, officials anticipate that they will do so more
often in the future.

Administration officials played down the potential impact on civil
liberties. In interviews, two officials said the law would actually
bolster privacy protections by spelling out the requirements for court
oversight of cyber-surveillance and the limits on how information
obtained in a search could be used.

"The administration is supportive of encryption. Encryption is a way
to provide privacy, but it has to be implemented in a way that's
consistent with other values, such as law enforcement," said Peter P.
Swire, the chief White House counselor for privacy. "In this whole
debate, we have to strike the right balance."

Computer specialists predict that people under investigation will
take countermeasures.

"It's 'Spy vs. Spy,' " said Lance Hoffman, director of the Cyberspace
Policy Institute at George Washington University, who praised the
administration for raising the issue but expressed skepticism about
the proposal as it was described to him.

"I'd be leery if I were the government. . . . They have to be real
careful," he said. 

Copyright 1999 The Washington Post Company 





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