CFP96 Plenary Session
CFP96 Plenary SessionAt bottom, this case is not about whether, with a valid court order, the government may make intrusions into the individual's private sphere. There is no doubt that such reasonable intrusions are permissible. The question is not whether there is an absolute right to privacy or a right to absolute privacy. Instead, we must ask whether there is a right to seek privacy by otherwise legal means, which may or may not be successful, depending on the government's capabilities. More precisely, the question is whether the national government has legislative power to prohibit the people of the nation from communicating in secrecy, secure against government intrusion. That question is as much about what we mean by a government of limited powers as it is about the autonomy of the individual. Indeed a right to privacy is merely the name we give to the complementary principle of a government of limited powers. I find constitutional infirmity in the CCA both because of its shockingly totalitarian view of government power and its impoverished conception of individual liberty (privacy).
The government is simply wrong in asserting that the CCA does nothing more than enshrine the status quo. This argument treats the ability to wiretap as a government entitlement. Yet this ability developed in a natural way adjunct to the development of telephone technology. The government's position seems to rest on the (faulty) premise that having obtained an ability to wiretap, it is now entitled to dictate the development of new technologies in order to preserve its surveillance ability. This is an effort to derive a constitutional power not from the Constitution, but from the existence and particular attributes of a mid-Twentieth Century technology. The government has no constitutional right to effective surveillance. (Indeed, the Constitution grants rights to people, only powers to government.) As a purely factual matter, the CCA does more than protect an existing ability to wiretap. Pre-CCA, individuals were privileged to arrange their affairs such that, if the government did legally search, a "find" would be difficult. The CCA changes the status quo by imposing a disability where a privilege formerly existed.
The government's position has strange and necessarily broad implications. Ultimately, the government must defend the proposition that it has the power to illegalize attempts by individuals to live and communicate in privacy. If the government is permitted to require key escrow in order to enable it to break people's use of codes, why not prohibitions of soundproof rooms to facilitate government bugging, prohibition of strong locks to facilitate government entry, or prohibition of thick (or opaque) walls to facilitate government thermal imaging? Indeed, it is not clear that the government's position is limited to outlawing high tech modes of insuring privacy. If high-tech means of frustrating effective surveillance of communications can be legislatively barred, why not running showers; why not whispers; why not open spaces; why not secrecy in whatever form? Clearly, the implications of the government's position are unacceptable in our constitutional system.
The government asserts that without a statute like the CCA the government would not be able to watch, infiltrate, and stop some criminal and terrorist organizations. But this supposed justification has no limits. Many different kinds of information would be useful in such efforts, including that obtained from pass books and locator bracelets. Surely knowing people's location at any given time would be enormously useful in thwarting terrorism and crime,. As technology advances, the physical burdens of such systems may all but fade away, yet the idea that the citizenry might therefore be required to facilitate the government's use of such tracking technologies would be undiminished in its distortion of the constitutional balance between citizen and government.
Much has been made of the escrowed keys' secrecy unless a warrant is obtained, as if the requirement of a warrant is a general savior for government encroachments. But Woodbury is correct in pointing out the anomalous nature of making a warrant a general safety valve. We require a warrant as a procedural constraint against abuse of abilities the government has acquired through technological advance. That is not the same as saying that a warrant requirement makes governmentally imposed disabilities benign. The warrant requirement reflects a necessary limit on what government has acquired the ability to do, not a constitutional excuse to disable citizens from doing anything. Indeed, I find it deeply ironic that the government essentially bases its power to criminalize cryptography on its own limitations against cryptography. But the Bill of Rights is premised on a suspicion of a too powerful, too invasive government, the same suspicion that drives some citizens to encrypt their information.
Even without the Bill of Rights, the concept of limited power puts the onus on the government to justify the power it asserts, something that has not been done to my satisfaction. Although the government has noted that computer networks constitute a means of interstate commerce within the meaning of Lopez, I think that the true nature of the power asserted demands more. Again, the question is not merely the power to regulate commercial channels, but the power to prevent privacy seeking.
The government reads the Constitution backwards when it argues that a right to cryptography (or privacy, for that matter), not being specifically stated, must not exist. The Ninth Amendment is explicit: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." I confess that the negative logical structure of the Ninth Amendment should not be twisted into a constitutional inkblot for whatever we may imagine. We should be cautious in too quickly finding rights. Indeed, we have only very seldom based our decisions on the Ninth Amendment. But caution must not be paralysis. To make the Ninth Amendment an empty set would be a constitutional tragedy and a profound misfeasance of our duty to uphold the constitutional order against novel threats. If the Ninth Amendment has any meaning, it means that unenumerated rights may exist. Where they may exist, I believe it is our moral and constitutional duty to ask if they do exist.
For the reasons I have stated above, I believe that the Ninth Amendment includes the right of individuals to seek privacy in ways that are not illegal by virtue of some government interest unrelated to limitations on privacy. That is, government may illegalize conduct for reasons unrelated to privacy seeking. But I see no way to read the CCA as anything but a broad prohibition against individuals seeking privacy. Allegiance to our constitutional heritage requires that we see this statute for what it is: an assertion of nearly totalitarian powers. Our debt to the present and our hope for the future require that we invalidate it. The Cryptography Control Act is unconstitutional.