CFP96 Plenary Session

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


1 The text of the relevant portions of the CCA are reproduced in an Appendix to this opinion.

2 A key is a code used to decode or interpret information which has been encoded using an encryption algorithm or technique. CCA 2(d).

3 An example of a lawful warrantless order would be the extraordinary case of life-threatening exigent circumstances pursuant to 18 U.S.C. 251 8 (1988 & Supp. V 1993).

4 This is twice the 64-bit maximum that the CCA permits for when a copy of the key has not been deposited with the special depository maintained by the government. Doubling the key length does not simply double the difficulty of decryption: in the case of IDEA it increases the amount of effort potentially involved in decrypting a message by 2x64.

5 E.g. United States v. Place, 462 U.S. 696, 705-07 (1983) (finding the use of "canine sniff[s]" for narcotics detection to be inoffensive to the Fourth Amendment unless the governmental interest is outweighed by the effect of the search on the individual's liberty interest); Florida v. Riley, 488 U.S. 445, 451-52 (1989) (plurality opinion) (holding valid a warrantless aerial surveillance of a greenhouse from four hundred feet); California v. Ciraolo, 476 U.S. 207, 215 (1986) (holding valid a warrantless aerial surveillance of a yard enclosed by a 10-foot fence); Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986) (holding that warrantless aerial photography of a factory taken with a commercial camera from navigable airspace does not violate the Fourth Amendment). It has been suggested that government may use satellites to peer through windows without a warrant. See Lisa J. Steele, Comment, The View from on High: Satellite Remote Sensing Technology and the Fourth Amendment, 6 High Tech. L.J. 317, 327-33 (1991) (discussing warrantless searches by satellite and the applicable constitutional implications); see generally David E. Steinberg, Making Sense of Sense-Enhanced Searches, 74 Minn. L. Rev. 563 (1990) (reviewing Supreme Court cases regarding sense-enhanced searches such as dog sniffs, wiretaps, and overflights).

6 See generally Nikolaus F. Schandlbauer, Comment, Busting the "Fuzzbuster": Rethinking Bans on Radar Detectors, 94 Dick. L. Rev. 783, 785-89 (1990) (listing the jurisdictions which prohibit radar detectors). Cf. United States v. Kerr, 876 F.2d 1440, 1443-44 (9th Cir. 1989) (considering the absence of heat detected via thermal imaging scan of home to be a sign of suspiciously good insulation indicating marijuana cultivation.)

7 E.g. N.Y. Penal Law 140.35 (McKinney 1988), Fla. Stat. ch. 81.06 (West 1994).

8 See, e.g., People v. Atson, 526 N.Y.S.2d 618, 619 (N.Y. App. Div.), appeal denied, 528 N.E.2d 896 (N.Y. 1988); Thomas v. State, 531 So. 2d 708, 709-10 (Fla. 1988).

9 E.g., Posters 'N' Things, Ltd. v. United States, 114 S. Ct. 1747, 1749 n.5, 1754-55 (1994) (upholding the constitutionality of 21 U.S.C. 857 (1988), which Congress repealed and replaced in 1990 with the virtually identical 21 U.S.C. 863 (Supp. V 1993)).

10 See generally Title III, 18 U.S.C. 3121-3123 (1988); 50 U.S.C. 1801-1811 (1988) (Foreign Intelligence Surveillance Act Court), or the extraordinarily rare and temporary case of life-threatening exigent circumstances, 18 U.S.C. 2518 (1988 & Supp. V 1993).

11 See also Florida v. Bostick, 501 U.S. 429, 434 (1991) (holding that random approaches to passengers in buses, conducted pursuant to passengers' consent, are not per se unconstitutional); Michigan Department of State Police v. Sitz, 496 U.S. 444, 447 (1990) (classifying suspicionless sobriety checkpoints to deter drunk driving as reasonable under the Fourth Amendment); Skinner v.

12 Cf. United States v. Martinez-Fuerte, 428 U.S. 543, 557 (1976) (stating that requiring particularized suspicion before routine stops on major highways near the Mexican border "would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens").

13 See Samuel A. Alito, Jr., Documents and the Privilege Against Self-Incrimination, 48 U. Pitt. L. Rev. 27, 29 (1986) (examining the new framework used by the Supreme Court in applying the Fifth Amendment privilege against self-incrimination to compulsory process for documents); Note, Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments, 90 Harv. L. Rev. 945, 964-85 (1977) (detailing the modern approach to the Fourth and Fifth Amendments).

14 See also Andresen v. Maryland, 427 U.S. 463, 472-73 (1976) (holding that a legal search of the petitioner's office resulting in the seizure of voluntarily recorded business records authenticated by a prosecution witness was not a violation of the Fifth Amendment); Bellis v. United States, 417 U.S. 85, 101 (1974) (holding that a dissolved law partnership had its own institutional identity, and its records were held in a representative capacity; therefore a grand jury subpoena for those records could not be ignored on Fifth Amendment grounds); United States v. White, 322 U.S. 694, 698-99 (1944) (holding that an officer of an unincorporated labor union could not refuse, based on Fifth Amendment protections, to produce the union's records); Hale v. Henkel, 201 U.S. 43, 56-58 (1906) (holding that a witness who, because of statutory immunity, cannot invoke the Fifth Amendment as to oral testimony cannot invoke it against the production of books and papers).

15 Couch v. United States, 409 U.S. 322, 335-36 (1973) (holding that petitioner had no legitimate expectation of privacy when she handed her papers over to her accountant); Bellis, 417 U.S. at 92-93 (same, when papers were handed to a partner in a small law firm).

16 Johnson v. Eisentrager, 339 U.S. 763, 771, 782-83 (1950). Cf. United States v. Tiede, 86 F.R.D. 227, 259 (D. Berlin 1979) (holding that friendly aliens have Fifth Amendment rights when charged with civil offenses in a U.S. court outside the territory of the United States).U.S. citizens abroad, however, do have Fifth Amendment rights. Reid v. Covert, 354 U.S. 1, 5 (1957) (rejecting the idea that "when the United States acts against citizens abroad it can do so free of the Bill of Rights").

17 493 U.S. 549, 561 (1990) (holding that a mother could not invoke her Fifth Amendment privilege against a court order to produce the child she had allegedly abused).

18 Id. at 556-60.

19 United States v. Doe, 465 U.S. 605, 613-14 (1984) (finding that the act of producing the documents at issue would involve testimonial self-incrimination, and that requiring such production therefore violated the Fifth Amendment); Fisher v. United States, 425 U.S. 391, 398-99 (1976) (holding that requiring relinquishment of the documents at issue was not a Fifth Amendment violation because no testimonial incrimination was compelled).

20 429 U.S. 589 (1977). For a discussion of other circuits' inconsistent decision on the right to withhold private information, see Gary R. Clouse, Note, The Constitutional Right to Withhold Private Information, 77 Nw. U. L. Rev. 536, 547-57 (1982).

21 Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); see also Stanley v. Georgia, 394 U.S. 557, 564 (1969) (finding a constitutional right to "receive information and ideas, regardless of their social worth").

22 Nixon, 433 U.S. at 465; cf. George P. Long, III, Comment, Who Are You?: Identity And Anonymity In Cyberspace, 55 U. Pitt. L. Rev. 1177, 1192 n.81 (1994) (collecting informational privacy cases from lower courts).

23 420 U.S. 469 (1975).

24 491 U.S. 524 (1989).

25 Paul v. Davis, 424 U.S. 693, 713 (1976); see also Roberts v. United States Jaycees, 468 U.S. 609, 618-22 (1984) (describing types of "personal bonds" and relationships entitled to heightened constitutional protection); Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion) (recognizing a right to choose which relatives to live with); Roe v. Wade, 410 U.S. 113, 152 (1973) (protecting the reproductive decisions of women); Doe v. Bolton, 410 U.S. 179, 197-98 (1973) (recognizing the right to make reproductive decisions without interference from a hospital committee); Eisenstadt v. Baird, 405 U.S. 438, 452-55 (1972) (protecting the procreative decisions of unmarried opposite-sex couples); Loving v. Virginia, 388 U.S. 1, 12 (1967) (endorsing the right to engage in an interracial marriage); Griswold v. Connecticut, 381 U.S. 479, 482-86 (1965) (establishing the right of married opposite-sex couples to make procreative decisions).

26 See Tribe, supra, at 1331 nn.4-11 (collecting cases).

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Last updated March 9, 1996