CFP96 Plenary Session

Before the Court: Can the US Government Criminalize Unauthorized Encryption?

Majority opinion

MITCHELL, Circuit Judge:

Woodbury was convicted of unauthorized use of restricted encryption, in violation of sec. 10 of the Cryptography Control Act of 1995 (CCA),[1] after a jury trial in the District Court. He now appeals, arguing that the CCA violates the First, Second, Fourth and Fifth Amendments to the Constitution, and his constitutional right to privacy. Because we hold that the CCA is constitutional, we affirm the conviction.

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Cryptography is a means of hiding information so that it can only be read by the intended recipient(s). There are many different kinds of ciphers, of varying strengths. The strength of a cipher is conventionally expressed in the number of bits in its key.[2] All other things being equal, the longer the key, the more difficult it is for someone who is not privy to the key to decrypt the message. It takes a laptop computer only seconds to encode a message with a cipher that has a 128-bit key. Yet, a computer processing a million keys per second could not be certain of "breaking" this same in less than about 1025 years, which is out 1015 times greater than the estimated age of the universe. Bruce Schneier, Applied Cryptography 7, 129 (1994). Modern encryption techniques thus make it possible to send a message that no one other than the intended recipient can read. Where once it was possible, at least theoretically, for those charged with protecting national security and public order to decode a coded message circulating among enemy agents, spies, terrorists and drug dealers, this is no longer the case.

The CCA is the product of a Congressional determination that these "advances in encryption technology pose a serious threat to the continued ability of law enforcement and national security agencies to make effective use of such tools." CCA A7 1(b). Congress found, and we agree, that "the acquisition and interpretation of oral, written, and data communications over telecommunications networks, and information stored in written and digital media, are tools which have been historically used for domestic law enforcement and national security purposes." Id. at 1(a). Congress also found and declared, as it is entitled to do, that the loss of these "tools in the future would pose an unacceptable risk to the domestic tranquility and to the national security of the United States." Id. at 1(c).

The CCA's solution to this problem is measured and modest. It requires users of ultra-strong, effectively unbreakable, cryptographic ciphers - those with keys over 64 bits long - to provide the federal government with the means to decrypt their messages in the event that the government has the legal authority to do so. These "keys" are "escrowed" in a secure facility and may only be released to the FBI, DEA, or other police and intelligence services upon presentation of a warrant or other lawful order.[3] In this way, citizens remain free to encrypt their messages with any level of security they desire, but are not able to frustrate a lawful wiretap or lawful search warrant by the use of encryption.

Users of highly secure encryption techniques such as those regularly used by banks for financial transactions are unaffected by the CCA. For example, users of DES, a cipher with a 56-bit key certified by the government as secure for the transmission of sensitive information, see Revision of Federal Information Processing Standard (FIPS) 46-1 Data Encryption Standard (DES), 58 Fed. Reg. 69,347, 69,348 (1993), are not required to escrow their keys. Because the CCA does not ban any form of cryptography, and because the keys deposited with the government can only be used if the government has a lawful order such as those provided in Title III, 18 U.S.C. 3121-3123 (1988), the only interest harmed by the CCA is that of people who wish to protect their records and communications from a lawful government wiretap or a lawful government search.

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In March 1995, a reliable police informant reported that Woodbury was involved in the distribution of crack cocaine, heroin, and other narcotics via the Internet. Acting with the assistance of the Drug Enforcement Administration, state police obtained a federal wiretap authorization. The trial judge held that this order was validly made, and Woodbury has not chosen to repeat his claim to the contrary in this appeal.

The DEA installed wiretaps on two lines at Woodbury's home. One of these telephone lines ("Line One") was used primarily for voice telephone calls, the other ("Line Two") primarily for electronic communications including faxes and computerized connections to the Internet. The wiretap on Line One proceeded in a standard manner. The wiretap on Line Two quickly encountered difficulties, as a significant portion of the messages Woodbury sent and received by electronic mail were encrypted with "Cypherpunks Labs Automated Messenger" 3.01 (CLAM), a computerized encryption program widely available throughout the world on various computers connected to the Internet.

CLAM encrypts messages with a cipher called IDEA, which uses a 128-bit key.[4] In the event, the program was good enough that neither the local police nor the DEA were able to decode Woodbury's e-mail, although they were able to determine from the unencrypted e-mail headers that the messages were addressed to persons in several different states and foreign countries. The Federal Bureau of Investigation's Special Cryptography Laboratory also proved unable to decrypt these messages when the DEA requested that it attempt to do so.

Based in part on the information derived from the surveillance of Line One, and in part on the evidence of violation of the CCA derived from the surveillance of Line Two, the police obtained a federal warrant for the search of Woodbury's home. As at trial, Woodbury objects that this warrant was improperly issued, arguing that the CCA is unconstitutional and hence cannot form the basis for a valid warrant, and that absent the alleged violation of the CCA there was insufficient evidence to form the probable cause needed to authorize the search. The trial court held that the informant's report, combined with the results of the surveillance of Line One, were sufficient evidence of drug-related crimes to amount to probable cause to issue the warrant. Because we hold that the CCA is constitutional, and the evidence of a CCA violation clearly sufficed to provide probable cause, there is little need to reiterate that information from a reliable informant combined with other indicia of criminal activity such as were present in this case suffices to provide probable cause for a search warrant.

During the course of search of Woodbury's home, however, DEA agents seized Woodbury's computer. A search of the hard drive, carried out in conformity with the Federal Guidelines for Searching and Seizing Computers, 56 Crim. L. Rep. (BNA) No. 12, at 2023 (Dec. 21, 1994), found files encrypted with CLAM on Woodbury's computer. A DEA expert testified that these files were formatted in a manner "consistent with the practices of a controlled substances distributor."

The search of Woodbury's home resulted in equivocal evidence of narcotics trafficking; the evidence sufficed to persuade a federal grand jury to return an indictment charging Woodbury with conspiracy to distribute drugs, as well as violation of the CCA. The evidence of drug conspiracy failed to

impress the petit jury, however, and they acquitted Woodbury on this count of the indictment. The jury convicted Woodbury on the CCA charge, and the trial judge sentenced him to five years imprisonment.

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Woodbury argues that the CCA violates the First, Second, Fourth and Fifth Amendments and his constitutional right to privacy. The gravamen of Woodbury's arguments under each of these rubrics is that the Constitution does not give Congress the authority to impose any conditions on the use of unbreakable encryption. In effect, Woodbury argues that the Constitution guarantees an absolute right to private communication. This argument, however attractive it may be, finds no support in the text, structure, or history of the Constitution. Indeed, the text of the Fourth Amendment's prohibition on unreasonable searches and seizures makes it clear that while protection of privacy is the norm, the government may make reasonable intrusions on the privacy of the home, or of personal communications. The Supreme Court has consistently taken this view in every decision relating to police investigative techniques ranging from the use of informants, to eavesdropping, to wiretapping and other forms of surveillance. Nor is there any doubt that the intrusions into Woodbury's privacy were reasonable in this case.

A. First and Fourth Amendment

The First Amendment states that "Congress shall make no law...abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble." U.S. Const. amend. I. The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." It also states that "no Warrants shall issue but upon probable cause...particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV.

Woodbury argues that the CCA's prohibition on his use of unbreakable unescrowed encryption violates his right to free speech because it amounts to compelling a certain form of speech, violates his right to anonymity and freedom of association, and has a chilling effect on his speech. Woodbury also argues that his Fourth Amendment rights would be violated by a requirement that he escrow his key in the absence of probable cause that he has committed a crime, and that disclosure of his keys would constitute compelled speech in violation of the First Amendment.

Woodbury's First Amendment arguments are without merit. Nothing in the CCA requires that Woodbury say anything at any time, nor does it require that he refrain from speaking on any subject, to any person, at any time. This is not simply a content-neutral restriction on speech: It is not a restriction on speech at all. At most, the CCA imposes a mild licensing requirement on one type of technology which can be used in conjunction with a certain type of communication. Woodbury's argument, that his undoubted right to speak freely is somehow compromised by his restriction to 64-bit unescrowed encryption keys or escrowed keys of any length he chooses, must fail for the same reason that a motorist's argument that a speed limit unconstitutionally restricted his freedom to travel would fail. Indeed, Woodbury has less reason to complain than the hypothetical motorist, since Woodbury may have any size keys he wants, in any quantity and for any purpose, if he simply takes the trouble to register them.

The CCA does not restrict the language that Woodbury may speak. A code or cipher is not a language. Woodbury is free to communicate in any language he chooses, and his citations to Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (recognizing a parent's right to determine the language to be spoken by her child), and Asian Am. Business Group v. City of Pomona, 716 F. Supp. 1328, 1330-32 (C.D. Cal. 1989) (holding that an ordinance requiring one-half of the space of a foreign alphabet sign to be devoted to English alphabetical characters violated First Amendment free speech rights and the Equal Protection Clause), are simply inapposite.

Similarly, Woodbury's argument that the CCA's requirement that he disclose his key to an escrow agent as a prerequisite to using unbreakable cryptography somehow constitutes compelled speech is irrelevant to this case because Woodbury did not attempt to comply with that requirement. Even if Woodbury had attempted to comply with this requirement, it would no more constitute compelled speech than does a requirement that a motorist carry a driver's license - a document which unquestionably aids the police's identification of a motorist suspected of an offense. Woodbury also asserts that unbreakable cryptography is a prerequisite to anonymous electronic communication. Whether or not that assertion is correct, it is irrelevant to Woodbury's situation, as there is no suggestion that he sought to communicate anonymously; even if Woodbury had sought to make such a claim it would not avail him, since his identity has been known to the police throughout its investigation.

Woodbury's claim of a chilling effect on his speech seems to rely on the proposition that his speech is chilled by the knowledge that a policeman armed with a warrant might be able to monitor his electronic communications, a defect he argues can be repaired by unbreakable encryption. This argument, however, proves too much. If it were the case that speech is unconstitutionally chilled every time the police have a theoretical ability to obtain the content of a communication, then it would be unconstitutional for the police ever to read a letter, conduct a search, use a listening device, or indeed employ informants fitted with a "wire" to converse with suspects. Yet, the constitutionality of each of these routine investigative techniques is beyond debate. See, e.g. Katz v. United States, 389 U.S. 347, 353 (1967). Indeed, the Supreme Court has upheld numerous investigative techniques exercised in the absence of a court order that are inconsistent with Woodbury's theory of the Constitution.[5] Woodbury nonetheless argues that the CCA differs from each of these techniques because the CCA, supposedly for the first time, prevents citizens from employing counter-measures of their choice to defeat police investigations into illegal activities.

The assumption that the Constitution entitles citizens to possess any technology, or to claim any technological advantage that they can obtain against legitimate investigations, strikes us as based on a fundamental misunderstanding. No one would doubt that a criminal organization might find possession of a nuclear weapon to be of inestimable value; armed with such a device the organization could demand that it be left unhindered to pursue its criminal activities. The prohibition against personal possession of nuclear weapons is, however, clearly constitutional. To take a more mundane example, several courts have upheld statutes banning radar detectors, devices whose primary purpose is to defeat police attempts to prevent speeding.[6] Nor is it the case that a malign purpose need be shown to criminalize the possession of certain devices. Many states ban the possession of burglars' tools,[7] and courts have upheld these bans[8], just as they have upheld bans on possession of drug paraphernalia.[9]

Since it appears that no conversation will ever be monitored because of the CCA unless the police have a valid court order,[10] the existence of the CCA's requirements no more creates a chilling effect on speech than does Title III's authorization of wiretapping, or the Fourth Amendment's permission of reasonable searches and seizures. See Katz v. United States, 389 U.S. 347, 353 (1967); Berger v. New York, 388 U.S. 41, 51 (1967). Woodbury nonetheless argues that his Fourth Amendment rights are violated by the requirement that he escrow a key without being suspected of any offense. As we have already seen, however, the Constitution creates no right to unbreakable encryption. As a result, Congress may, if it chooses, impose reasonable conditions on the use of this dangerous technology.

Even if it were the case that there were a constitutional right to use unbreakable encryption, this right would have to be balanced against other constitutional rights and provisions. "[N]either a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).[11] Railway Labor Executives' Ass'n, 489 U.S. 602, 634 (1989) (finding drug and alcohol tests mandated by Federal Railroad Administration regulations reasonable under the Fourth Amendment). Twice, in Skinner v. Railway Labor Executives' Association and again in National Treasury Employees Union v. Von Raab, the Supreme Court has directed that, "where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement," the courts must "balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context." Von Raab at 665-66 (citing Skinner, 489 U.S. at 619-20). As an appellate court we must follow this instruction.

The CCA easily meets the tests set out by the Court in these cases. First, the special needs of the government could not be higher. It is evident that unbreakable codes would be of inestimable value to enemy agents, drug dealers, pornographers, pedophiles, and organized crime generally, frustrating the legitimate activities of law enforcement and agencies charged with protecting national security. This alone suffices to justify the very modest intrusion into personal privacy represented by a requirement that the keys to unbreakable codes be escrowed, particularly since the keys cannot be accessed without a court order. Second, the CCA is specifically designed to prevent the development of "hidden conditions"; it would be completely impractical to require a warrant for every key. Von Raab at 668 (offering hidden conditions and impracticality as examples of "compelling" special needs). Mandatory key escrow for unbreakable keys further complies with the Von Raab criteria in that the escrow is not designed to produce evidence for criminal prosecutions - wiretaps do that, but they require warrants or other authorization. Key escrow seeks only to aid in the detection, and perhaps also deter, crimes that might otherwise be furthered by the use of encryption. Von Raab, 489 U.S. at 666 (explaining that the Customs Service's mandatory employee drug testing program was not designed to further criminal prosecutions, but to ensure that drug users did not ascend to certain positions in the service). There is nothing surreptitious about the process, as the user of the key knows that the key is being escrowed. In addition, if encryption becomes widespread, a more particularized approach would be difficult if not impossible.[12] Finally, the cost to personal privacy is reduced because the government can only use the escrowed keys for legitimate searches. "A determination of the standard of reasonableness applicable to a particular class of searches requires 'balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'" O'Connor v. Ortega, 480 U.S. 709, 719 (1987) (citations omitted). Using the criteria defined by the Court, the balance tilts in favor of the CCA.

B. Second Amendment

Woodbury's Second Amendment argument need not detain us long. The Second Amendment states, "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed," U.S. Const. amend. II. Woodbury argues that because the International Traffic in Arms Regulations (ITAR), 22 C.F.R. 120-130 (1994), classify cryptography as a "munition" for export purposes, it follows that Congress's attempt to regulate cryptography violates the Second Amendment.

Cryptography is not "arms" in the constitutional sense, and Woodbury has offered no evidence that either the original intent of this term nor any reasonable modern interpretation can make it so, other than a regulatory shorthand adopted by one agency of the U.S. government. Such designations, whether by an executive agency or by Congress itself, have little constitutional significance. Lebron v. National R.R. Passenger Corp., 115 S. Ct. 961, 971 (1995) (holding that Congressional declaration that Amtrak was a private body could not change the fact that Amtrak was a public body for First Amendment purposes).

C. Fifth Amendment

The required disclosure of a key resembles the required disclosure of a private paper. Woodbury argues that private papers have special Fifth Amendment protection as stated in Boyd v. United States, 116 U.S. 616 (1886), and that the CCA is thus unconstitutional. Although the matter is not free from doubt, we conclude that the Supreme Court has effectively undermined Boyd in a number of rulings in the century since it was decided, and that a majority of the Supreme Court would vote to overrule it today if presented with a case such as this one.

In Boyd the Supreme Court stated that private papers are an owner's "dearest property." Id. at 627-28. Relying on both the Fourth and Fifth Amendments, the Court found that allowing the state to compel production of that property would be "abhorrent to the instincts" of an American and "contrary to the principles of a free government." Id. at 632. The rule in Boyd has not been free of criticism. For example, Judge Friendly called it "ringing but vacuous" because it "tells us almost everything, except why." Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 682 (1968). Nevertheless, as recently as Bellis v. United States, 417 U.S. 85 (1974), the Supreme Court reemphasized that the Fifth Amendment protects "'a private inner sanctum of individual feeling and thought', an inner sanctum which necessarily includes an individual's papers and effects to the extent that the privilege bars their compulsory production and authentication." Id. at 91 (quoting Couch v. United States, 409 U.S. 322, 327 (1973)).

Nevertheless, we believe that a majority of the Supreme Court would hold that the rule found "abhorrent" in 1886 is now the law[13] because the rule in Boyd has been whittled away to irrelevance: First, only natural persons can find shelter under the Fifth Amendment, and only for papers they both own and control. Thus, corporations can never claim the privilege, and neither can natural persons with regard to corporate records, even if they created and now control those records. Braswell v. United States, 487 U.S. 99, 109-10 (1988).[14] Second, once papers are handed to another, the legitimate expectation of privacy needed to maintain a claim under either the Fourth or Fifth Amendments disappears.[15] (The attorney-client privilege is an exception to this general rule.) Third, records required to be kept for legal or regulatory purposes are outside the privilege. Shapiro v. United States, 335 U.S. 1 (1948). Fourth, persons can be forced to perform nontestimonial acts such as giving handwriting samples. Gilbert v. California, 388 U.S. 263, 266-67 (1967). This rule has also been applied to voice samples, United States v. Wade, 388 U.S. 218, 222-23 (1967). and blood samples. Schmerber v. California, 384 U.S. 757, 767 (1966). Fifth, aliens outside the sovereign territory of the United States do not ordinarily enjoy Fifth Amendment rights.[16] Finally, in Baltimore City Department of Social Services v. Bouknight,[17] the Supreme Court, analogizing the mother's care of the child to a required record, held that producing a child was not testimonial, and therefore the Fifth Amendment did not apply.[18]

In light of these decisions it is fair to ask whether the Fifth Amendment applies to anything other than oral testimony. We conclude that it does not, that Boyd has therefore lost all its vitality, and that Justice O'Connor was correct when she stated that the exceptions have now swallowed the rule: "[T]he Fifth Amendment provides absolutely no protection for the contents of private papers of any kind." United States v. Doe, 465 U.S. 605, 618 (O'Connor, J., concurring). Boyd therefore poses no bar to the CCA.


Woodbury also suggests that coerced compliance with the CCA would require him to waive his right against self-incrimination in violation of the Fifth Amendment. We find this argument unpersuasive because we hold that the disclosure of a key is neither testimonial nor incriminating.

Only testimonial disclosures are entitled to Fifth Amendment protection. If the act of handing over information is noncommunicative, that is, if it neither reveals the existence of the document nor authenticates it, then the Fifth Amendment ordinarily does not apply.[19] The disclosure of a key is not testimonial because the disclosure itself does not, and cannot, give testimonial information about the user. The key is evidence of no crime. At most, it might be used in a future investigation of future conduct, and might be used to decrypt communications or records that incriminate the user. This, however, does not suffice to constitute a constitutional violation. The Fifth Amendment does not protect testimony that might become incriminating through future conduct. In United States v. Freed, 401 U.S. 601 (1971), the Supreme Court upheld a National Firearms Act registration requirement against a Fifth Amendment claim that the disclosed information might be used against the defendant if he committed an offense with a firearm in the future. Id. at 606. The disclosures required by the CCA fit precisely inside the Freed rationale.

Similarly, the disclosures required by the CCA are not incriminating. Testimony must be incriminating when uttered in order to be entitled to protection under the Fifth Amendment. The testimony must relate to past conduct and, if it does not directly incriminate ("Yes, I did it") must at least create a "substantial" and "real" hazard of prosecution for the Fifth Amendment to apply. Marchetti v. United States, 390 U.S. 39, 48 (1968) (holding that requiring a frequent gambler to report illegal gambling income created a reasonable basis for fear of incrimination). As the disclosures required by the CCA cannot be incriminating when uttered, they do not violate these strictures.

The Fifth Amendment undoubtedly protects individuals against the routine warrantless use of escrowed keys to decrypt their communications, and especially, against the warrantless decryption of an incriminating communication. Because the stated purpose of escrowed encryption is to allow the government to retain the abilities it currently has, and the government accepts that a warrant or other lawful order is required to conduct a wiretap, the Fifth Amendment imposes no bar to the escrow requirement in the CCA.

D. Privacy

Woodbury argues that the CCA violates his constitutional "right to privacy." Because we believe that Woodbury's claim sounds in the right to "informational privacy," and that the Supreme Court has consistently held that this right (if it exists at all) must yield in the face of a program narrowly tailored to serve a compelling state interest, such as the CCA assuredly is, we reject this argument also.

Supreme Court decisions relating to privacy issues have tended to be Fourth Amendment cases concerned with a governmental claim in the context of a criminal investigation of a right to access to a person or to data (papers, telephone calls). Privacy is also invoked in special classes of cases that concern the individual's freedom to make important life choices, particularly regarding sexual and reproductive freedom (contraception, abortion). Although both of these lines of cases offer language that can be quoted out of context to argue for a broader right of privacy, the Supreme Court's major modern discussion of an informational privacy right remains Whalen v. Roe.[20]

In Whalen the Court accepted that the right to privacy includes a generalized "right to be let alone."[21] The right to be left alone includes "the individual interest in avoiding disclosure of personal matters." Whalen, 429 U.S. at 598-99. In Whalen itself, however, this right was overcome by a narrowly-tailored program designed to serve the state's "vital interest" in controlling the distribution of "dangerous [prescription] drugs." New York state kept a computerized list of prescription records for dangerous drugs and required physicians to disclose the names of patients to whom they prescribed those drugs. Id. at 593, 603-04. Finding this program to be narrowly tailored, and replete with security provisions designed to reduce the danger of unauthorized disclosure, the Supreme Court held that the constitutional balance tilted in favor of the statute. Id. at 601-04. Despite upholding the mandatory compilation and disclosure of prescription data, the Court left the door open tofuture restrictions in light of technical change, noting that it was "not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files." Id. at 605. With this remark, the Court set the stage for claims such as Woodbury's that the Constitution embodies a right to informational privacy.

In the nearly two decades since Whalen, however, the Court has made no significant reference to the right of informational privacy. In Nixon v. Administrator of General Services, 433 U.S. 425, 455-57 (1977), the Court quoted from Whalen and applied Whalen's balancing test. Nixon's privacy interest in his presidential papers was found insufficiently strong to outweigh the public interest in preserving them.[22] Perhaps of greater significance are the decisions in Cox Broadcasting Corp. v. Cohn,[23] and Florida Star v. B.J.F.,[24] in which the Court struck down state law privacy claims arising from the accurate publication of arguably private facts that had become matters of public record. The Court did suggest that "there is a zone of privacy surrounding every individual," 420 U.S. at 487, but it did not say what the limits of this zone were. Indeed, subsequent decisions suggest that this zone is the area defined by the contours of the Fourth Amendment in matters plus an enhanced right to autonomous choices regarding intimate personal matters. The Court has carved out a special privacy zone for decisions about intimate association, i.e. "marriage, procreation, contraception, family relationships, and child rearing and education,"[25] 367 U.S. 497, 551-54 (1961) (Harlan, J., dissenting) (arguing that the Constitution protects the procreative decisions of married opposite-sex partners); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942) (recognizing the right not to be sterilized). but we find no hint of a similar expansion of any right to informational privacy more generally.

Instead, it has become clear that many state interests, including those involved in routine law-enforcement, suffice to overcome whatever right to informational privacy there may be. For example, the right is insufficiently compelling to prevent a large number of physical intrusions to bodily integrity when the police seek forensic evidence relating to a criminal investigation. [26] Furthermore, we have no hesitation in finding that the dangers to national security identified by Congress are of the most grave and compelling character, indeed considerably more serious than those found sufficient to overcome the information privacy right in Whalen. The CCA's requirement that only the strongest keys be escrowed, and that these keys be available to the government only upon presentation of a warrant or other lawful order, is also a more narrowly tailored response to these serious challenges than was present in Whalen.

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The verdict is therefore affirmed.

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Concurring Statement of FROOMKIN, Circuit Judge

The court's opinion does not agree with my personal views in important respects. My views appear in A. Michael Froomkin, The Metaphor Is The Key: Cryptography, The Clipper Chip, and the Constitution, 143 U. Penn. L. Rev. 709 (1995). I do agree, however, that circuit courts must follow the Supreme Court's directions and commands. I urge the Supreme Court to grant certiorari in this case in order to reinvigorate, and if necessary extend, either Boyd v. United States, 116 U.S. 616 (1886), or Whalen v. Roe, 429 U.S. 589 (1977), both of which appear to have fallen into desuetude. While I would also urge that Von Raab be narrowed, that is perhaps too much to ask at this time.

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Last updated March 9, 1996