|Advocates for the Government:||Mark Rasch
|Advocates for the Defense:||
Hon. Sandra Lynch
Hon. Susan Bucklew
Hon. William Castagna
Hon. Nancy Gertner
Hon. William C. Young
|Majority Opinion:||Michael Froomkin|
|Dissenting Opinion:||Christine Axsmith|
|Bench memo:||Alyssa Harvey|
|Brief writers (appellant):||
|Brief writers (respondent):||
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.
Representing the defendant were two prominent attorneys in the area of cyber liberties, Andrew Good (firstname.lastname@example.org / (617) 523-5933) and Phil Dubois (email@example.com / (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.
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: firstname.lastname@example.org
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: email@example.com / (202) 663-9041
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