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The Secretariat
Wassenaar Arrangement On Export Controls for
Conventional Arms and Dual-Use Goods and Technologies
Mahlerstrasse 14
1010 Vienna, Austria

Please pass this statement to
The Honourable Representatives of the 33 Participating States of The Wassenaar Arrangement

CRYPTOGRAPHY IS A DEFENSIVE TOOL, NOT A WEAPON

WHEREAS the stated purposes of the Wassenar Arrangement On Export Controls for Conventional Arms and Dual-Use Goods and Technologies are:

  1. The Wassenaar Arrangement has been established in order to contribute to regional and international security and stability, by promoting transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilising accumulations. Participating States will seek, through their national policies, to ensure that transfers of these items do not contribute to the development or enhancement of military capabilities which undermine these goals, and are not diverted to support such capabilities.
  2. It will complement and reinforce, without duplication, the existing control regimes for weapons of mass destruction and their delivery systems, as well as other internationally recognised measures designed to promote transparency and greater responsibility, by focusing on the threats to international and regional peace and security which may arise from transfers of armaments and sensitive dual-use goods and technologies where the risks are judged greatest.
  3. This arrangement is also intended to enhance co-operation to prevent the acquisition of armaments and sensitive dual-use items for military end-uses, if the situation in a region or the behaviour of a state is, or becomes, a cause for serious concern to the Participating States.
  4. This arrangement will not be directed against any state or group of states and will not impede bona fide civil transactions. Nor will it interfere with the rights of states to acquire legitimate means with which to defend themselves pursuant to Article 51 of the Charter of the United Nations.

WHEREAS offensive arms and technologies threaten regional and international security and stability;

WHEREAS purely defensive arms and technologies, by reducing the tendency of neighbours to be beligerent, contribute to regional and international security and stability;

WHEREAS cryptography is a purely defensive technology, the only purpose of which is to defend and protect information assets;

WHEREAS cryptography can be used in missile command and control systems, products designed for such applications have almost nothing in common with their commercial counterparts since they have to be designed to meet stringent military performance requirements;

WHEREAS cryptography products designed for commercial use can be easily distinguished from their military counterparts;

WHEREAS export controls on cryptography hurt law-abiding companies and citizens without having any significant impact on the ability of criminals, terrorists or belligerent nations to obtain any cryptographic products they wish;

WHEREAS export restrictions imposed by the major cryptography exporting states limit the ability of other nations to defend themselves against electronic warfare attacks on vital infrastructure;

WHEREAS failure to protect the free use and distribution of cryptographic software will jeopardise the life and freedom of human rights activists, journalists and political activists all over the world;

WHEREAS any restriction on the use of cryptographic programs will be unenforceable in practice, since the basic mathematical and algorithmic methods for strong encryption are widely published and can easily be implemented in software by any person skilled in the art;

WHEREAS the increasingly common use of public networks to electronically distribute such products in intangible form reinforces the unenforceability of export controls;

WHEREAS any requirement for key-escrow or key-recovery systems will create an inherent and unnecessary risk of unlawful interception of personal communications, or unlawful access to sensitive financial transaction data by criminals, as has been repeatedly documented by the leading experts in cryptography and computer communications;

RECOGNISING that the great majority of national governments participating in the Wassenaar Arrangement appreciate the importance of the civil and commercial market for cryptographic products and do not impose excessive restrictions;

FURTHER RECOGNISING that the guidelines adopted by the OECD state that the "fundamental rights of individuals to privacy, including secrecy of communications and protection of personal data, should be respected in national cryptography policies and in the implementation and use of cryptographic methods";

The following members of the Global Internet Liberty Campaign (GILC)

BELIEVE that controls on the export of cryptography, being a defensive technology, are not justified by the Wassenaar Arrangement, and are in fact contrary to the principles on which it is based;

URGE that controls on the export of cryptography be removed;

FURTHER URGE that there be no interpretation of the Wassenaar Arrangement that would further limit or prohibit the global distribution, development, or use of strong encryption hardware or software;

APPEAL to all member states to comply with the intent of the Wassenaar Arrangement (1996) that expressly excludes controls over mass market and public domain software (General Software Note); and

CALL UPON the assembled delegates of the national signatories to the Wassenaar Arrangement to recognise the negative impact of existing controls over cryptography products and to remove such restrictions from future revisions to the Arrangement.

Respectfully endorsed,

BACKGROUND

The Global Internet Liberty Campaign

GILC is a coalition of international organisations founded in 1996 to defend civil liberties and human rights on the Internet. GILC has identified cryptographic hardware and software as being a critical component for protecting and promoting fundamental human rights including the freedom of expression, freedom of association, and the right to privacy. These freedoms are explicitly protected by national and international law, including the Charter of Rights and Freedoms, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights, and must be used as a baseline for any decision on the Wassenaar Arrangement.

In 1996, GILC issued the "Resolution in Support of the Freedom to Use Cryptography," to the Organization for Economic Cooperation and Development (OECD), which stated that any new Cryptography policies must be based on the fundamental rights to engage in private communications as embodied by Article 12 of the Universal Declaration of Human Rights, Article 17 of the International Covenant on Civil and Political Rights, and national law.

GILC continues to monitor activities concerning the freedom to use cryptography. GILC maintains an extensive collection of resources about international encryption policy our web site. Moreover, we provide training in the use of cryptographic methods to human rights organizers, journalists and political activists in order to shield them from government surveillance.

In many countries these individuals are the most common targets of surveillance by government intelligence and law enforcement agencies and other non-governmental groups. In the 1996 Country Reports on Human Rights Practices, the U.S. Department of State, reported widespread illegal or uncontrolled use of wiretaps by both government and private groups in over 90 countries, developing and non-developing.

Additional information on the use of encryption technology by international human rights organizations is contained in the briefing paper "Encryption in the Service of Human Rights," produced by Human Rights Watch.

The aim of the Wassenaar Arrangement is to prevent the build up of military capabilities that threaten regional and international security and stability. The Wassenaar Arrangement controls the export of cryptography as a dual-use good, i.e., one that has both military and civilian applications. However, the Waassenaar Arrangement also provides an exemption from export controls for mass-market software and software in the "public domain".

It is also clear that the Arrangement cannot legitimately be used to obstruct genuine civil transactions. The Arrangement states that it will not be directed against any state or group of states and will not impede bona fide civil transactions. Nor will it interfere with the rights of states to acquire legitimate means with which to defend themselves pursuant to Article 51 of the Charter of the United Nations. Furthermore, the intent of the Arrangement is to restrict the proliferation of offensive strategic weapons. Cryptography is a defensive mechanism, particularly against electronic warfare attacks.

This means that products clearly designed and sold for civil or commercial purposes cannot be restricted under the terms of the Wassenaar Arrangement. It is undeniable that cryptographic products are vital for the continued growth of digital economies, for the development of secure electronic commerce and the protection of the privacy of citizens. Far from threatening regional stability and international security, a free and competitive market will quickly provide the cryptographic products which are needed to protect the information based economies of the developed nations and safeguard their citizens in the face of 'information terrorism' and the activities of 'cyber-criminals'.

Hence, we conclude that there is no sound basis within the Wassenaar Arrangement for the continuation of any export controls on commercial cryptographic products. Such controls only serve to undermine the protection available with the civil information infrastructures on which society is increasingly dependent. Far from hampering crime and terrorism, expansive restrictions on cryptography will serve only to create an environment in which crime and terrorism can flourish with impunity.

For further information see:

Global Internet Liberty Campaign
http://www.gilc.org/
 
The Risks of Key Recovery, Key Escrow, and Trusted Third Party Encryption. A Report by an Ad Hoc Group of Cryptographers and Computer Scientists, 1998.
http://www.crypto.com/key_study
 
Cryptography and Liberty. An International Survey of Encryption Policy. Global Internet Liberty Campaign, 1998.
http://www.gilc.org/crypto/crypto-survey.html
 
Review of policy relating to encryption technologies (Walsh Review). Australian Commonwealth Attorney-General's Department 1996.
http://www.efa.org.au/Issues/Crypto/Walsh/
 
Cryptography's Role in Securing the Information Society. National Research Council, USA, 1996.
http://www.replay.com/mirror/nrc/