6/12:EDITORIAL: A CLOSER LOOK ON WIRETAPPING

c.1994 N.Y. Times News Service

The government's ability to tap private phone calls is under
siege. Newly developed encryption systems allow callers to
mathematically scramble their messages so that no one, including
the government, can eavesdrop. And digital technology - from
cellular phones to call-forwarding - makes wiretapping
increasingly difficult.

The Clinton administration is running scared and proposes two
fixes, neither satisfactory. Government needs to wiretap under
legally restricted circumstances. Though used sparingly during the
1980s (1,000 a year), taps helped convict more than 20,000 felons.
But before tampering with existing arrangements, the
administration must show that its proposals are workable and will
not trample on existing rights to conduct private phone
conversations. So far it has cleared neither hurdle.

To overcome private encryption, the administration will encourage
people who plan to encode calls to buy phones with a
government-designed encryption system, known as Clipper, built
into the hardware; the government, with judicial approval, would
be able to unscramble the messages. But the policy is unlikely to
work because Clipper phones are unlikely to dominate the market -
leaving Washington the choice of admitting defeat or turning Big
Brotherish and outlawing non-Clipper encryption systems.

To overcome technological barriers, the Federal Bureau of
Investigation proposes a second fix: legislation that would
require phone companies to adopt only those technologies that
preserve the government's ability to wiretap. The problem with
this plan is that its sweeping prohibitions threaten to stop
telecommunication innovations before anyone calculates the
consequences.

The administration would like to begin by encouraging the IRS and
other agencies to buy Clipper phones; it might then require
private parties that wish to send the government encoded messages
to do so only with Clipper phones. The government hopes that in
time Clipper phones would become standard equipment everywhere.
Callers using other encryption systems would have to plan ahead
and acquire compatible software, a big task for run-of-the-mill
criminals.

But many experts predict that Clipper phones will not become
standard. There are easy-to-use encryption systems that require no
special phones, no shared secret passwords. And, unlike Clipper,
they cannot be intercepted by the government. Because un-tappable
systems will prove attractive the private market is likely to make
them as readily available as Clipper.

Clipper uses a secret mathematical formula for scrambling calls.
But there are flaws in the formula, as The New York Times recently
revealed. The danger with secret formulas is that someone in or
outside government could discover a new flaw and exploit it to tap
encoded calls without a court order.

Another bad feature concerns the passwords (actually, numbers) the
government needs to unscramble calls from Clipper phones. The
passwords would be held in escrow by two federal agencies (and
released to the FBI upon presentation of a court order). A better
way to protect against government abuse would be to entrust
passwords to the courts or designated non-government
organizations.

The FBI's fix - requiring phone companies to build easily tappable
systems - raises the unsettling image of forcing a phone company
to design its "home" so that the police can easily enter. And the
fix is unnecessarily blunt. The government could compel phone
companies to solve specific problems, like making call-forwarding
tappable.

The administration is right to worry about its ability to tap
phones for legitimate law enforcement. So far, its suggestions for
safeguarding that ability seem unworkable and potentially
intrusive.