Efforts to Ban Encryption


Excerpts from Congressional Testimony of FBI Director Louis Freeh
Before the House Committee on the Judiciary  
Subcommittee on Crime 
March 30, 1995
Another issue looms on the horizon that ultimately could be as 
devastating to the fight against drugs by law enforcement as any 
other factor. If lost, the effect will be so profound that I 
believe law enforcement will be unable to recover.
In 1968, Congress passed legislation giving law enforcement the 
court-authorized  wiretap.   It has become a technique crucial to 
the fight against drugs, terrorism, kidnapping and sophisticated 
white-collar crime.  The ability to conduct court- authorized 
electronic surveillance is fundamental to our ability to protect 
both public safety and national security.
Last year, after careful deliberation, Congress passed legislation 
to ensure continuing access to criminal conversations in the face 
of the incredible advance of telecommunications technology.  Had 
Congress not done so, we would have lost the ability to access, 
pursuant to court order, criminal conversations. All that remains 
on the access issue is funding consistent with the authorization 
to ensure carrier compliance. I have been advised that the 
Administration will soon be sending legislation to address this 
funding issue.
Even though access is all but assured, an even more difficult 
problem with court-authorized  wiretaps  looms. Powerful 
encryption is becoming commonplace. The drug cartels are buying 
sophisticated communications equipment.  Unless the issue of 
encryption is resolved soon, criminal conversations over the 
telephone and other communications devices will become 
indecipherable by law enforcement. This, as much as any issue, 
jeopardizes the public safety and national security of this 
country. Drug cartels, terrorists, and kidnappers will use 
telephones and other communications media with impunity knowing 
that their conversations are immune from our most valued 
investigative technique.
This is an extremely difficult issue. We are working hard to 
address adequately the important law enforcement, national 
security, commercial, and privacy concerns associated with this 
matter. I anticipate that as we proceed with solving this issue, 
we will be consulting with Congress.
Before the House Judiciary Committee  
Subcommittee on International Terrorism 
April 6, 1995
... An even more difficult problem with respect to 
counterterrorism fighting has to do with encryption.  Powerful 
drug cartels as well as terrorist organizations are aware of the 
hiding and concealing power of strong encryption and are making 
headway to develop that technology to defeat counterterrorism 
investigations. This will be an increasing technology problem, 
which we know the Congress is eager to take up.
Before the Senate Judiciary Committee  
Subcommittee on Terrorism 
April 27, 1995
...  Just as important and perhaps more frightening and more 
destructive is terrorists communicating over the Internet in 
encrypted conversations, for which we will have no available means 
to read and understand unless that encryption problem is dealt 
with immediately.
Before House Committee on Judiciary 
Subcommittee on Crime 
May 3, 1995
With respect to the authorities that we have, as we testified in 
the Senate last week, the FBI is very comfortable with the 
attorney general guidelines.  I feel very confident that, 
interpreted broadly, and certainly within the Constitution, those 
guidelines give me and my agents the authority we need to 
investigate and prevent, in many cases, what would be clear 
violations of criminal law and clear terrorist activity within the 
United States ...
We need the authority to trace money, explosives, nuclear 
materials and terrorists.  Pen registers and trap-and-trace 
devices are necessary in counterterrorism as well as 
counterintelligence cases. The threshold ought to be the same in a 
criminal case as in a terrorism case. It's critical that 
investigators have increased access, short of a full-blown grand 
jury investigation, to hotel, motel and common-carrier records. 
Encryption capabilities available to criminals and terrorists, 
both now and in days to come, must be dealt with promptly.  We 
will not have an effective counterterrorism strategy if we do not 
solve the problem of  encryption.  It's not a problem unique, by 
the way, to terrorists.  It's  one which addresses itself to drug 
dealers and cartels and criminals at  large. There are now no 
legally available means in some dangerously few cases to exclude 
and remove alien terrorists from the United States.  Again, that's  
an issue that this committee has already taken up.   These are 
tools.  These are not new authorities.  These are tools with which 
to use our current statutory authority, all, in my view, well 
within the Constitution.  And the addition of those resources, 
which are people and technologies, will give us the ability to 
deal with these cases as well as prepare for and prevent other 
incidents such as the one we've seen recently.

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