CFP96 Plenary Session

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

Presented on Thursday, March 28, 1:30-3:30 PM

Advocates for the Government: Mark Rasch
Mark Jackowski
Advocates for the Defense: Andrew Good
Phil Dubois
Federal Judges: Hon. Sandra Lynch
Hon. Susan Bucklew
Hon. William Castagna
Hon. Nancy Gertner
Hon. William C. Young
Shadow Panel: Judith McMorrow
Charles Nesson
Maureen O'Rourke
Majority Opinion: Michael Froomkin
Dissenting Opinion: Christine Axsmith
Bench memo: Alyssa Harvey
Brief writers (appellant): Jeffrey Hermes
Chris Kelly
Brief writers (respondent): Bob Kluge
Dan Zelenko
Scott Faga
Organizer: Andrew Grosso

Looming over the controversies surrounding the Digital Telephony Legislation, the Clipper Chip proposal, and the criminal investigation of PGP, is the shadow of perhaps the most critical issue of them all:

Will Americans be prohibited from ensuring the privacy of their communications, including preserving those communications against government intrusion? Will strong, non-escrowed encryption be outlawed, and those who use it subjected to criminal prosecution?

CFP96, in co-sponsorship with the American Bar Association, Criminal Justice Section, presented a moot Court highlighting this question. The format was that of a Supreme Court argument, where former federal prosecutors argued against noted civil liberties lawyers before a panel of five federal judges. A second panel, comprised of regional law school professors, served as a shadow court and rendered a written judgment on the case.

The issue being tested was whether an individual, who has successfully used outlawed encryption to hide his conversations while the target of a criminal investigation, can be prosecuted and convicted for use of unauthorized encryption under the (fictional) "Cryptography Control Act of 1995".

The background for this session assumed that the defendant's conviction was upheld 2-1 in an appeals court decision, whose majority opinion and dissenting opinion set forth the central Constitutonal arguments for upholding, or overturning, the prohibition of unauthorized encryption. At the CFP session, the Court reviewed the decision and the shadow court overturned it, rendering a majority opinion and a concurring opinion.

Documents available

The appeals decision The review before the Court

Session participants

Arguing on behalf of the government were former federal prosecutor Mark Rasch, and Mark Jackowski, Assistant US Attorney from Tampa, Florida. Mr. Rasch is a former Trial Attorney with the Department of Justice Fraud Section, in Washington, D.C, where he prosecuted the Robert T. Morris case. Mr. Rasch ( is currently Legal Counsel for the S.A.I.C. Corporation, headquartered in Reston, Virginia, specializing in computer security matters. Mr. Jackowski became an AUSA in 1984, and concentrated in prosecuting very complex narcotic importation organizations. He tried the BCCI case, a six month trial which took place in Tampa in 1990. He also indicted Panama's General Noriega. He is currently with the Independent Counsel's Office investigating HUD Secretary Henry Cisneros.

Representing the defendant were two prominent attorneys in the area of cyber liberties, Andrew Good ( / (617) 523-5933) and Phil Dubois ( / (303) 444-3885). Andrew Good of Silverglate & Good specializes in criminal defense and civil liberties law. He is currently a member of the ABA Task Force on Technology and Law Enforcement, and was co-counsel for David LaMacchia and for Steve Jackson Games, Inc. Mr. Dubois is a solo practitioner in Denver Colorado; among his clients is Phil Zimmermann, author of PGP.

The panel judging the arguments was comprised of federal appellate and district court judges: n

A second panel, made up of regional law school professors, served as a shadow court and rendered a judgment on the case.

Michael Froomkin (Appeals Court Majority Opinion) is an Associate Professor of Law at the University of Miami, in Florida, a position he has held since 1992. He has served as a law clerk for both the Hon. Steven F. Williams of the U.S. Court of Appeals for the D.C. Circuit, and Chief Judge John F. Grady, of the U.S. District Court for the Northern District of Illinois. He earned his law degree from Yale University, holds a M.Phil. degree from Cambridge University, and earned a B.A. from Yale with a double major of economics and history. Among his recent writings is, "The Metaphor is the Key: Cryptography, the Clipper Chip and the Constitution", which was published in 1995 in the University of Pennsylvania Law Review. Contact: / (305) 284-4285

Christine Axsmith (Appeals Court Dissenting Opinion) is a Computer Security Consultant with the Orkand Corporation, in Washington, D.C., and is currently assigned to the Office of Consular Affairs of the United States State Department. She received her J.D. from Catholic University, and holds a B.S. Degree in Computer Science from Drexel University. Contact:

Alysssa Harvey (Bench memo) is a student at Georgetown University Law School.

Jeffrey Hermes and Chris Kelly (Brief for the Appellant) are students at Harvard Law School.

The brief for the Government was prepared by Bob Kluge and Dan Zelenko (American Univeristy School of Law) and Scott Faga (George Mason University School of Law).

Andrew Grosso (Organizer) is currently in private practice in Washington, D.C. From 1983 to 1994, he served as an Assistant U.S. Attorney in Tampa, Florida, and Boston, Massachusetts. He earned his J.D. from the University of Notre Dame Law School, and holds M.S. degrees from Rensselaer Polytechnic Institute in both physics and computer science. Contact: / (202) 663-9041

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Last updated June 3, 1996