Obama Picks Encryption Opponent for ODNI General Counsel
April 17, 2009. President Obama announced his intent to nominate Robert Litt to be General Counsel of the Office of the Director of National Intelligence (ODNI). See, White House news office release.
He has long been at partner at a large Washington DC law firm. However, over a decade ago, in the late 1990s, he was active in the encryption policy debates. He was one of the leaders of the government's efforts to suppress the use of encryption, and to mandate government back doors.
The ODNI oversees the intelligence community, including the National Security Agency (NSA), which intercepts communications and engages in cryptanalysis.
This is the Robert Litt who testified to the House Commerce Committee's (HCC) Subcommittee on Telecommunications in 1997 that "key recovery holds great promise for providing the security and confidentiality that businesses and individuals want and need".
This is the Robert Litt who expressed horror at the thought of public use of "64-bit key" encryption.
This is the Robert Litt who testified that while "unbreakable encryption products can be found overseas", and the administration wants to prevent the manufacture or export by U.S. companies of encryption products that do not allow back door access by the government, "U.S. businesses will be able to compete abroad effectively".
This is the Robert Litt who testified to the Senate Judiciary Committee's (SJC) Subcommittee on the Constitution in 1998 that there would be no violation the Constitution "If a manufacturer of an encryption product were required to maintain information sufficient to allow law enforcement access to plaintext".
The is the Robert Litt who testified that a government mandated plaintext recovery system would not violate 4th Amendment rights.
This is the Robert Litt who testified in opposition to HR 695 (105th Congress), the SAFE Act, and instead advocated "legislation prohibiting the manufacture, distribution and import of encryption products that do not contain plaintext recovery technologies".
This is the Robert Litt who litigated against people who asserted that the First Amendment protects their right to publish encryption programs in the U.S.
See, Litt's March 17, 1998 prepared testimony [TLJ | DOJ] for the SJC, and September 4, 1997 prepared testimony [TLJ | DOJ] for the HCC.
See also related story in this issue titled "What Robert Litt Had to Say About Encryption".
TLJ spoke with Marc Rotenberg, head of the Electronic Privacy Information Center (EPIC), which was active in encryption policy debates in the 1990s. See, EPIC's web section on cryptography.
"This nomination raises concerns", said Rotenberg. "Mr. Litt was on the wrong side of the crypto debate in the 1990s."
Rotenberg added that widespread availability of encryption has turned out to be a good thing, and that "it would have been a mistake" to mandate key recovery.
Litt is now a partner at the law firm of Arnold & Porter (AP). His AP biography states that "he has represented corporate and individual clients in a wide range of criminal and enforcement matters, including foreign payments, securities regulation, extradition, pharmaceutical marketing and pricing, violation of export control and sanctions laws, government contracting, computer and internet law, and national security matters."
During the administration of former President Clinton he worked at the Department of Justice (DOJ) as Principal Associate Deputy Attorney General and as a Deputy Assistant Attorney General in the Criminal Division, which includes the Computer Crimes and Intellectual Property Section (CCIPS).
Federal Election Commission (FEC) records show that Litt has been a frequent contributor to Democratic candidates and committees, including President Obama. See, FEC search page for individual contributors.
The Clinton administration substantially backed away from its attempts to suppress the use of encryption, and to mandate government back doors, in late 1999. Some officials, after leaving office, sought to distance themselves from their anti-encryption actions and statements.
TLJ phoned and e-mailed Litt requesting to speak with him, and in particular, "to ask if your views on encryption have changed". He wrote back, "I'm not responding to press queries at this point."
The ODNI web site states that the the Director of National Intelligence "serves as the head of the Intelligence Community (IC), overseeing and directing the implementation of the National Intelligence Program and acting as the principal advisor to the President, the National Security Council, and the Homeland Security Council for intelligence matters related to the national security." (Parentheses in original.)
The IC includes, among other entities, the NSA and the Central Intelligence Agency (CIA). The NSA engages in signals intelligence, including communications intercepts and cryptanalysis.
The ODNI web site states that the General Counsel provides "legal support to the Director of National Intelligence to fulfill his statutory duties".
The acting General Counsel is