CyberWire Dispatch // Copyright (c) 1994 // July 11 //

Jacking in from the "Blank Check" Port:

Washington, DC -- The Administration will today announce it has sidestepped the threat of patent infringement lawsuit involving its Escrow Encryption System, commonly known as Clipper. The solution: Toss the original patent holder a blank check and buy him off.

The National Institute of Standards and Technology (NIST), the agency walking point for the White House on its proposed encryption Clipper encryption standard, has agreed in principle to license two key patents relating to the technical workings of the key escrow system from patent holder Silvio Micali, an MIT professor.

The government's key escrow system depends on the capturing of digital "keys" that allow authorized law enforcement officials to unscramble Clipper encoded speech or Capstone encoded data, including electronic mail. Micali, as it now turns out, thought up the idea and had the moxie to patent his scheme. Micali's inventions detail the process whereby a digital key is divided into pieces. Those pieces are then held by separate "key escrow agents" which now turn out to be hand picked government agencies; one is NIST the other a division of the Treasury Department. Those keys must be combined to successfully unlock the code that allows law enforcement officials to listen in.

The license agreement effectively eliminates "concerns Micali raised about possible infringement of his patents," said NIST spokeswoman, Anne Enright Shepherd. It also sidesteps a potentially ugly lawsuit in which Micali lawyers could have uncovered all sorts of currently unknown information about the Clipper program.

According to sources familiar with the negotiations, the government's agreement with Micali grants the Administration a nonexclusive license to the patents for use in current implementations of Clipper and Capstone and for future implementations, Shepherd said.

It's not known whether the government will make a single payment to Micali or pay royalties. "The procurement phase of the agreement is still continuing," Shepherd said. Disclosure of the amount paid to Micali and details of the license agreement are expected to be made public sometime early next month, she said. That agreement, however, wont result in any user fees, Shepherd said.

Questions Raised

Although the government's action today nullifies a pesky problem, it also continues to raise serious questions about the Administration's -- and more pointedly -- about the National Security Agency's ability to ramrod an encryption policy that has been elevated to the status of a national security issue.

Surely the NSA or NIST can dial up the U.S. Patent Office and query its database, looking for patent conflicts. Apparently the clock and dagger crowd was too busy with other matters. Arrogance or oversight?

"Micali made the existence of his patents known during the public comment period," Shepherd said. "He let the government know he had some patents that he felt were similar to some technology used by the key escrow system. So the discussions kind of began at that point," she said.

Unfortunately, the "public comment" period was launched only after the White House trotted out its Clipper policy as set in stone. Nobody expected Micali to piss the parade.

Privacy and civil liberties groups have roundly criticized the government for developing Clipper in secrecy, not allowing public debate on the issue. If that debate had taken place, Micali would have come forward years ago.

Despite the Administration's continued efforts to push Clipper into the deep waters of the mass market, there are rumblings that it may not be christened after all. At very least, it may not be the only encryption standard blessed by the government.

Several groups are now floating their own alternatives to the Clipper program. And although the National Security Agency is working behind the scenes to sink such efforts, NIST, at least, is making the appearance of listening.

Earlier this year, NIST put out a call for the Cooperative Research and Development Agreement (CREDA), which was an effort to draw publicly interested parties into a cooperative venture to develop a key escrow alternative.

Those that came forward have now thrown off working formally with CREDA, but have instead formed their own working group, government sources said. Those efforts are being heard and taken seriously, according to several government sources familiar with the discussions. "Encryption isn't a front page issue, but those [inside the Administration] working on this issue are tired of being beat up over it," said a White House official.

Discussions on Clipper alternatives "are continuing," Shepherd said. "And we're still open to other alternative ideas and we're working with the people who have presented their own ideas at this point."

Meeks out...