THE METAPHOR IS THE KEY: CRYPTOGRAPHY,
THE CLIPPER CHIP, AND THE CONSTITUTION

A. Michael Froomkin

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The Fourth Amendment also has implicit assumptions about the limits of technology that will soon break down, if they have not already done so.{584} The Fourth Amendment was written, debated, ratified, administered, and interpreted for its first two hundred years on the basis of the assumption that there are physical limits to the government's ability to make "reasonable" searches. Although this presumption has begun to fray in the face of technical augmentation of the public servant's ability to peer into private property,{585} the basic assumption that the police cannot be everywhere at once remains unshaken.{586} This assumption may have to change, and soon. If it does, our thinking about the Fourth Amendment will need to change with it.{587}

[Page 845]When the Bill of Rights was adopted in 1791, speech took place between persons who saw each other eye-to-eye, or who wrote letters by hand, or printed pamphlets, books, and newspapers using hand-set type. Today those forms of communication have been supplemented, and often supplanted, by electronic communications including telephones, desktop publishing, and e-mail; additionally, letters are often typed on computers before being mailed. These new media--particularly the telephone, but increasingly e-mail--are the bases of modern social and commercial relations. They play significant roles in political and cultural organizations as well.{588} Broadcasting via radio and television (including cable television) is now the dominant mode of mass communication, having long supplanted the written word. But new forms of electronic communication such as the electronic bulletin board, the Internet USENET newsgroup, and the Internet mailing list promise to revive the importance of the written word.

Under current law, a person communicating via new media is less able to ensure her privacy than were speakers in the late eighteenth century. If Thomas Jefferson wanted to speak privately to John Adams, they could go for a walk in an open field where they could see any potential eavesdroppers from a mile away.{589} Letters could be encoded with the then-unbreakable VigenŠre cipher, although this would have been a slow process and was thus rarely used.{590} In contrast, modern eavesdroppers, particularly[Page 846]wiretappers, are invisible. Strong cryptography offers the prospect of restoring the privacy enjoyed by Jefferson and Adams to anyone with a computer or a scrambler telephone, thereby making it again possible to enjoy this privacy, albeit with a larger number of correspondents spread out over greater distances.

As the preceding sections have shown, however, it is far from obvious from the Court's recent decisions that the Constitution will be read to block a future government's attempt to dampen the privacy-enhancing effects of the cryptographic revolution. Part III argued that the constitutionality of hypothetical mandatory key escrow legislation would most often turn on a balancing test in which the Supreme Court would seek to weigh security claims against privacy interests.{591} Regardless of how the Court decides to strike the balance, it will involve a process requiring decisions not compelled by any precedent. As is often the case when the law encounters new technology, the decisional law is indeterminate or at the very least distinguishable. In order to predict where the law relating to cryptography may be going and to suggest feasible alternatives, one needs to understand the concerns that are likely to influence the balance between claims asserting security and privacy interests. The remainder of this final Part looks at how this balancing of incommensurables might work.

A. Caught Between Archetypes

Despite these developments, no sophisticated constitutional analysis is necessary to recognize that the government still lacks the authority to require that every television set sold in the United States carry with it a microphone for police to eavesdrop on[Page 848]conversations in the home.{597} The deficiencies in this proposal would not be cured by hedging the microphone's remote controls with the most elaborate safeguards and requiring careful judicial review before activating any of the devices. The very idea is, fortunately, laughable, so much so that it is hard even to imagine any government official proposing it.{598}

Similarly, it is hard to imagine that a statute designed to ease surreptitious entry by the police, requiring every citizen to give the government a set of keys to her house, would survive even cursory judicial review.{599} These hypothetical statutes require so little analysis because they immediately evoke George Orwell's 1984.{600} Big Brother and his thought police provide a vivid archetype of state overintrusion into private life.{601}

Vivid as the Orwellian archetype may be, it is far from all-powerful, as demonstrated by the large number of dissenting opinions vainly invoking it.{602} It may be that mandatory key[Page 849]escrow will produce the same public outcry as the wiretap-ready TV set{603} or a telephone that can be turned into a bugging device even when on the hook.{604} It should. And if it does, half of this Article is an exercise in pedantic overcaution, and the fact that the state of the law produces a need for such caution is a deeply damning indictment of the Burger/ Rehnquist Court's privacy jurisprudence. For if it is obvious from the Zeitgeist that mandatory key escrow is impossible, yet far from obvious from the relevant cases, then the cases are revealed as being significantly more state-oriented and illiberal than what "society is prepared to recognize as `reasonable.'"{605}

Even overcaution has its place. The spirit of the times is always subject to change. As a result, we have a human court to interpret the Constitution in light of changing conditions.{606} Interpreters of the Constitution are unable to be completely insensitive to the felt necessities of the times, whether consciously or not. The decision about the constitutionality of mandatory key escrow would be no exception to this rule. The same dynamic that produced the facts of Korematsu v. United States and the decision itself might arise again,{607} especially if those necessities are felt strongly by officials gripped by a sense of insecurity or danger.{608} "Collectively we[Page 850]face no greater challenge than maintaining sensible perspectives on national security issues," but we sometimes fail the test.{609} One need not believe that the executive is inevitably repressive or that the judiciary is inevitably supine to recognize that both of these tendencies can be found in our nation's history, and that we therefore cannot rule out their recurrence with total confidence.

2. The Conspirator

Given the public opposition to Clipper,{611} the government is unlikely to propose mandatory key escrow without some triggering event. In the wake of a great crime, perhaps by terrorists or drug cartels--the detection of which could plausibly have been frustrated by encryption--that which today looks clearly unconstitutional might unfortunately appear more palatable.{612} Suppose, for example,[Page 851]that Senator McCarthy had been able to demonstrate in 1952 that Communists were using strong encryption to protect their secrets. It is not hard to believe that some form of key escrow or an outright ban on cryptography would have been proposed, if not adopted. Big Brother may yet look more comforting than the reigning criminal archetypes.

a. Panics Over Plotters

The seventeenth-century Puritan colonists of New England worried about conspiracies among Indians, Quakers, witches, and the (Catholic) French, all of whom threatened the new Israel, and in so doing also threatened to prevent the fulfillment of the millennial vision that informed those communities' founding religious vision.{618} When their relations with England soured, the colonists blamed imperialistic conspiracies they believed were aiming to destroy their liberties.{619}

In the eyes of the victors, independence only made the new nation a more attractive target to its enemies. George Washington's instantly canonical Farewell Address sounded the theme, warning of the danger posed to the American nation by secret enemies. To President Washington, it was "easy to foresee that from different causes and from different quarters much pains [would] be taken, many artifices employed, to weaken" the American commitment to its new nation. Commitment to the American experiment was precarious, vulnerable, and thus would be "the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively" directing their energies, "though often covertly and insidiously."{620} The diversity of the American people, with widely varying ancestries, differing [Page 853]sects and creeds, and different experiences depending on class and region, served to make the nation even more vulnerable to "faction" and conspiracy.{621}

Indeed, New England was soon gripped by a panic that the (mythical) Bavarian Illuminati, a secret, French-controlled, atheistic, antidemocratic cabal, was conspiring to undermine American liberty and religion. Despite the absence of any extant Bavarian Illuminati, many believed that the United States was in grave danger and "the vast majority of New England Federalists accepted the conspiracy charges as entirely plausible, if not completely proven."{622} The evils of the Terror in post-Revolutionary France only served to confirm the awesome power of conspirators, for only a vast conspiracy could explain the otherwise bewildering series of events.{623} The image of the Terror, and the Masonic or Jacobean conspirators behind it, was one of the themes sounded to justify the Alien and Sedition Acts.{624}

A related, if less sanguinary, imagery dominated the attack on the Second Bank of the United States, an institution that Jacksonian Democrats viewed as a secretive "hydra of corruption" designed to favor the rich against the majority of the country.{625} Here, perhaps for the first time, the conspiracy was understood to be home-grown, if dominated by "aristocratic" elements fundamentally alien in spirit to the American popular democracy desired by the Jacksonians.

In the decades before the Civil War, as the threat of foreign military invasion receded, Americans were gripped by the threat of vast shadowy conspiracies in which various groups, including [Page 854]Freemasons, Mormons, or Catholics, plotted secretly to subvert the American (Protestant) way of life.{626} The American commitment to openness meant that any organization that was not itself open, that held secret meetings or, worse, had secret rituals, was not just suspect, but threatening.{627} The Civil War itself came to be portrayed as an apocalyptic battle between the forces of freedom and a conspiratorial "Slave Power."{628}

Post-Civil War industrialization provided the environment for a redefinition and bifurcation of the nature of the conspiracy, one which persisted until the First World War. On the one hand, there was the conspiracy of labor organizations, be it the International Workers of the World, the Socialist International, or the beginning of the American union movement. An illustrative example was the reaction to the Haymarket Riot of 1886, in which Chicago workers battled police, and which culminated in the explosion of a dynamite bomb that was widely ascribed to anarchists. Convictions were returned by a jury made up of persons who admitted prejudice against the defendants, and whom the judge charged to convict if "there was a conspiracy to overthrow the existing order of society" and that the defendants and the bomb-thrower, whoever he might be, were parties to it.{629} Others, notably the Progressives, focused on what they perceived was the conspiracy among corporations, trusts and a small cabal built on wealth and privilege{630} designed, they thought, to wrest control of the economy and thus undermine the democratic process.{631} The entry of the United States into the[Page 855]First World War shortly after President Wilson's promise to stay out of it, combined with Communism's triumph in Russia, unleashed an orgy of antisubversive activity, although the distinction from simple nativism was not always clear.{632}

Late-twentieth-century anti-Communist antisubversion is a topic all of its own, spanning McCarthyism,{633} loyalty oaths,{634} and a large number of important civil liberties decisions, notably those alternately expanding and contracting the protections of the First Amendment.{635} The low water mark, achieved in Dennis v. United States,{636} amounted to the criminalization of "any radical political doctrine."{637} Recently, in a climate of lessened insecurity, the courts have been considerably more willing to allow a wide range of radical speech.{638} The important points for present purposes are[Page 856]that, although one could debate what constitutes the norm, decisions significantly curtailing civil liberties are far from unique and that these decisions are often driven by a fear of criminal or subversive plotters, a fear with deep roots in our culture. Given an appropriate trigger, it is entirely possible that a similar dynamic could apply to the regulation of cryptography.

b. Modern Incarnations: The Drug Kingpin and the Terrorist

What criminal archetypes lack in longevity, they make up in menace. At least until his capture, the terrorist archetype for many years was Carlos the Jackal.{639} Carlos's capture, coming as it does on the heels of the collapse of any credible international communist movement, may create a small window of opportunity for privacy activists to seek legislative or judicial ratification for their argument that Big Brother is a greater menace. This window may not be open for long.{640}

[Page 857]The "War on Drugs" proclaimed by President Ronald Reagan in 1982 and enthusiastically endorsed by Presidents Bush and Clinton may be our "longest war."{641} "Refusing to shoulder" the "unbearable burden" of communities "devastated" by drugs, "Americans have given the government a mandate to eliminate the scourge before its effects become irrevocable."{642} Champions of the War on Drugs claim "almost universal acceptance [of the notion] that the drug problem is `the worst disease that plagues our nation today.'"{643} Notably, "[b]y the mid 1980s . . . anti-drug sentiment encompassing even casual use became a national cause."{644}

Likewise, fear of the drug kingpin quickly reached Congress, which reacted first by passing the continuing criminal enterprise statute, better known as the drug kingpin statute, imposing long mandatory minimum sentences.{645} When that was not enough, Congress passed a statute permitting the death penalty in drug cases connected to a killing.{646} Along the way, Congress made attempting to be a drug kingpin and conspiring with a drug kingpin punishable by the same penalty as the offense itself.{647}

With Congress and the Executive in such agreement, it is no surprise that the War on Drugs is a major social phenomenon, having criminalized behavior engaged in by somewhere between fourteen and twenty-three million Americans per year.{648} Experts[Page 858]recently began to study the war's longer-term effects, including the incarceration of hundreds of thousands of persons, clogged courts, corrupt police officers and corrupt judges, and a disproportionate impact on African-American males (and, through them, on their families).{649} The War on Drugs has achieved these and other dubious results through the expedient of demonizing the drug user, the drug "pusher," and especially the drug "kingpin."{650}

The fear of drug trafficking puts great pressure on the police. The mutually consensual nature of the drug crime requires a special type of police work because "law enforcement lacks its staunchest ally, the victim,"{651} who might report the crime and testify against the perpetrator. As a result, the police are driven to use surveillance, wiretapping, and informants because they have little else upon which to rely.{652} In 1993, about two-thirds of the court-ordered wiretaps were for drug-related offenses.{653} A similar dynamic has stimulated the expansion of surveillance into the workplace.{654}

The attempt to control drug trafficking also puts pressures on the courts that go beyond increasing caseloads. The War on Drugs creates pressure to support efforts to eradicate the drug "plague." The results of such pressure include Supreme Court descriptions of drug traffickers as "sophisticated criminal syndicates" that create[Page 859]an unprecedented obstacle for law enforcement.{655} In addition, the antidrug crusade has had a major impact on the Fourth Amendment: since President Reagan declared the War on Drugs, the government has prevailed in nearly every search and seizure case before the Supreme Court.{656}

As James Boyd White points out in his analysis of Chief Justice Taft's majority opinion in Olmstead v. United States,{657} the "organization, scale, enterprise, and success" of a criminal enterprise can become the occasion for a morality tale in which the government represents good struggling against the forces of evil.{658} In the context of actions that can be painted as enormous threats, constitutional texts like the Fourth Amendment can be made to seem irrelevant.{659} The implication for mandatory key escrow is obvious: the more closely the purposes of a statute are aligned with control of drugs or terrorism, and especially the more closely the facts of a test case conform to the apprehension of an archetypical evildoer, the less chance it will be declared unconstitutional.{660}