Law

Cryptography law

Cryptography law

 

Cryptography law

 

Issues regarding cryptography law fall into four categories :

  • Export control, which is the restriction on export of cryptography methods within a country to other countries or commercial entities. There are international export control agreements, the main one being the Wassenaar Arrangement. The Wassenaar Arrangement was created after the dissolution of COCOM (Coordinating committee for Multilateral Export Controls), which in 1989 „decontrolled password and authentication-only cryptography.”
  • Import controls, which is the restriction on using certain types of cryptography within a country.
  • Patent issues, which deal with the use of cryptography tools that are patented.
  • Search and seizure issues, on whether and under what circumstances, a person can be compelled to decrypt data files or reveal an encryption key.

 

Cryptography law in different countries

 

France. As of 2011 and since 2004, the law for trust in the digital economy (LCEN) mostly liberalized the use of cryptography. As long as cryptography is only used for authentication and integrity purposes, it can be freely used. The cryptographic key or the nationality of the entities involved in the transaction do not matter. Typical e-business websites fall under this liberalized regime. Exportation and importation of cryptographic tools to or from foreign countries must be either declared (when the other country is a member of the European Union) or requires an explicit authorization (for countries outside the EU).

 

United States. In the United States, the International Traffic in Arms Regulation restricts the export of cryptography. The export of cryptography from the United States is the transfer from the United States to another country of devices and technology related to cryptography. Export of cryptographic technology was severely restricted by U.S. law until 1992, but was gradually eased until 2000; some restrictions still remain. Since World War II, many governments, including the U.S. and its NATO allies, have regulated the export of cryptography for national security considerations, and, as late as 1992, cryptography was on the U.S. Munitions List as an Auxiliary Military Equipment. In light of the enormous impact of cryptanalysis in World War II, it was abundantly clear to these governments that denying current and potential enemies access to cryptographic systems looked to be militarily valuable. They also wished to monitor the diplomatic communications of other nations, including the many new nations that were emerging in the post-colonial period and whose position on Cold War issues was regarded as vital. Since the U.S. and U.K. had, they believed, developed more advanced cryptographic capabilities than others, the intelligence agencies in these countries had a notion that controlling all dissemination of the more effective crypto techniques might be beneficial.

The First Amendment made controlling all use of cryptography inside the U.S. difficult, but controlling access to U.S. developments by others was thought to be more practical — there were at least no constitutional impediments. Accordingly, regulations were introduced as part of munitions controls which required licenses to export cryptographic methods (and even their description); the regulations established that cryptography beyond a certain strength (defined by algorithm and length of key) would not be licensed for export except on a case-by-case basis. The expectation seems to have been that this would further national interests in reading ‚their’ communications and prevent others from reading ‚ours’. This policy was also adopted elsewhere for various reasons.

The development, and public release, of Data Encryption Standard (DES) and asymmetric key techniques in the 1970s, the rise of the Internet, and the willingness of some to risk and resist prosecution, eventually made this policy impossible to enforce, and by the late 1990s it was being relaxed in the U.S., and to some extent (e.g., France) elsewhere. As late as 1997, NSA officials in the US were concerned that the widespread use of strong encryption will frustrate their ability to provide SIGINT regarding foreign entities, including terrorist groups operating internationally. NSA officials anticipated that the American encryption software backed by an extensive infrastructure, when marketed, was likely to become a standard for international communications. In 1997, Louis Freeh, then the Director of the FBI, said For law enforcement, framing the issue is simple. In this time of dazzling telecommunications and computer technology where information can have extraordinary value, the ready availability of robust encryption is essential. No one in law enforcement disputes that. Clearly, in today’s world and more so in the future, the ability to encrypt both contemporaneous communications and stored data is a vital component of information security.

As is so often the case, however, there is another aspect to the encryption issue that if left unaddressed will have severe public safety and national security ramifications. Law enforcement is in unanimous agreement that the widespread use of robust non-key recovery encryption ultimately will devastate our ability to fight crime and prevent terrorism. Uncrackable encryption will allow drug lords, spies, terrorists and even violent gangs to communicate about their crimes and their conspiracies with impunity. We will lose one of the few remaining vulnerabilities of the worst criminals and terrorists upon which law enforcement depends to successfully investigate and often prevent the worst crimes. For this reason, the law enforcement community is unanimous in calling for a balanced solution to this problem.

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Wassenaar

Wassenaar Arrangement / COCOM

1. Export/ import controls

COCOM

COCOM (Coordinating Committee for Multilateral Export Controls) was an international organization for the mutual control of the export of strategic products and technical data from country members to proscribed destinations. It maintained, among others, the International Industrial List and the International Munitions List. In 1991, COCOM decided to allow export of mass-market cryptographic software (including public domain software). Most member countries of COCOM followed its regulations, but the United States maintained separate regulations.

Its 17 members were Australia, Belgium, Canada, Denmark, France, Germany, Greece, Italy, Japan, Luxemburg, The Netherlands, Norway, Portugal, Spain, Turkey, United Kingdom, and the United States. Cooperating members included Austria, Finland, Hungary, Ireland, New Zealand, Poland, Singapore, Slovakia, South Korea, Sweden, Switzerland, and Taiwan.

The main goal of the COCOM regulations was to prevent cryptography from being exported to „dangerous” countries – usually, the countries thought to maintain friendly ties with terrorist organizations, such as Libya, Iraq, Iran, and North Korea. Exporting to other countries is usually allowed, although states often require a license to be granted.

COCOM was dissolved in March 1994. Pending the signing of a new treaty, most members of COCOM agreed in principle to maintain the status quo, and cryptography remained on export control lists.
Wassenaar Arrangement

The Wassenaar Arrangement controls the export of weapons and of dual-use goods, that is, goods that can be used both for a military and for a civil purpose; cryptography is such a dual-use good.

In 1995, 28 countries decided to establish a follow-up to COCOM, the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies. The negotiations on the Arrangement were finished in July 1996, and the agreement was signed by 31 countries (Argentina, Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Poland, Portugal, the Republic of Korea, Romania, the Russian Federation, the Slovak Republic, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States). Later, Bulgaria and Ukraine also became a participating state to the Arrangement.

The initial provisions were largely the same as old COCOM regulations. The General Software Note (applicable until the December 1998 revision) excepted mass-market and public-domain crypto software from the controls. Australia, France, New Zealand, Russia, and the US deviated from the GSN and controlled the export of mass-market and public-domain crypto software. Export via the Internet did not seem to be covered by the regulations.

There is a personal-use exemption, allowing export of products „accompanying their user for the user’s personal use” (e.g., on a laptop).

In September 1998, Wassenaar negotiations in Vienna did not lead to changes in the crypto controls, although it was apparently considered to restrict the GSN (see an article in German) and possibly also to ease controls for key-recovery crypto. (Compare an article in Swedish of March 1998.)

The Wassenaar Arrangement was revised in December 1998. Negotiations were held on 2 and 3 December 1998 in Vienna, which resulted in restrictions on the General Software Note and in some relexations:

free for export are: all symmetric crypto products of up to 56 bits, all asymmetric crypto products of up to 512 bits, and all subgroup-based crypto products (including elliptic curve) of up to 112 bits;
mass-market symmetric crypto software and hardware of up to 64 bits are free for export (the 64-bit limit was deleted on 1 December 2000, see below);
the export of products that use encryption to protect intellectual property (such as DVDs) is relaxed;
export of all other crypto still requires a license.
There was no change in the provisions on public-domain crypto, so that all public-domain crypto software is still free for export. Nothing was said about electronic exports (e.g., via the Internet), which consequently remain unclear.

In its meeting of 30 November-1 December 2000, the Wassenaar states lifted the 64-bit limit for export controls on mass-market crypto software and hardware (in the Cryptography Note, clause d. (the 64-bit limit) was deleted in its reference to category 5A2, as well as the related Validity Note, see the summary). The public statement of the meeting mentioned that „Participating States recognised that it is important to continue deepening Wassenaar Arrangement understanding of how and how much to control” intangible transfers.

The Wassenaar provisions are not directly applicable: each member state has to implement them in national legislation for them to have effect. (In the entries below, I have included mention of the pre-December 1998 regulations, which will stay into effect until the government enacts new legislation to implement the Wassenaar changes.)

See the Wassenaar List (crypto is in category 5 part 2). See further the Wassenaar Arrangement page (includes contact information for various national export control authorities), a Wassenaar FAQ (by US BIS), Greg Broiles’ page on the Wassenaar Arrangement, which includes links to John Young’s pages on the Wassenaar Arrangement and comments on the December 1998 changes, and the GILC Wassenaar page. See also Chapter 3 of Simo-Pekka Parviainen’s thesis on Cryptographic Software Export Controls in the EU. Cf. an April 1996 article on the Wassenaar Arrangement.

EOF

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OECD

OECD (Organisation for Economic Co-operation and Development)

The OECD released its Recommendation of the Council concerning Guidelines for Cryptography Policy on 27 March 1997. The guidelines are non-binding recommendations to Member governments, meaning that they will not be part of international law. The Guidelines provide principles which states should take into account and balance in developing a national crypto policy.

The principles are:

1) Trust in cryptographic methods
2) Choice of cryptographic methods
3) Market driven development of cryptographic methods
4) Standards for cryptographic methods
5) Protection of privacy and personal data
6) Lawful access
7) Liability
8) International co-operation

The principles should be seen as „interdependent and should be implemented as a whole so as to balance the various interests at stake. No principle should be implemented in isolation from the rest.”

Some have welcomed the OECD principles as a victory for privacy over US-pushed key recovery, while others object to certain points as being too inflexible or too vague. Although the guidelines do not endorse key recovery, they do not prohibit it either. In fact, the guidelines are vague enough to allow a broad range of interpretation, and states will be able to choose a privacy-oriented or a law-enforcement-driven policy line as they see fit. While the guidelines recommend states to cooperate to coordinate their crypto policies, one may be skeptical about the chances of governments coming to an agreement; after all, within the OECD, states have not been able to agree, and they have left the task of finding a balance between, roughly speaking, information security/ privacy and law-enforcement/ national security to individual states.

The process of discussing and drafting policy guidelines started with an Ad-hoc Meeting of Experts on Cryptography Policy on 18-19 December 1995, organized by the OECD Committee for Information, Computer and Communications Policy (ICCP). They proposed to make a study upon current Member Countries encryption policies, market for encryption, key escrow encryption, and to develop a cryptography policy guideline based on the following principles, among others: provides security with confidence, voluntary use, international perspective, recognise national responsibilities, legally effective. The Group of Experts on Security, Privacy and Intellectual Property Protection in the Global Information Infrastructure held subsequent meetings on 7-8 February 1996 in Canberra, on 8 May 1996 in Washington, DC, on 26-28 June in Paris, and on 26-27 September 1996, again in Paris. At the June 1996 meeting, according to one report, no agreement was established; the OECD was said to be split into two parties, one with countries favouring mandatory key escrow (notably the US, UK, and France), and one with countries opposing this approach (mainly Japan and the Scandinavian countries). See a 1 October 1996 press release.

One can compare the final version to an earlier draft of the Guidelines that was discussed at the December 1996 meeting (with rather optimistic personal comments by Robin Whittle). (Text between [square brackets] remained to be decided upon.) In January 1997, the OECD Group of Experts on Security. Privacy, and Intellectual Property Protection in the GII concluded the guidelines. The Guidelines were finally turned into a Council of the OECD resolution in March 1997.

EOF

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