Before the Court: Can the US Government Criminalize Unauthorized Encryption?
Report by Sam Hartman
A statute banning un-escrowed encryption would be a preemptive strike against a technology specifically designed to create a zone of privacy not found under current law, said Mark Rasch, an attorney arguing to uphold such a statute in a moot court proceeding held in a Thursday plenary session at CFP96.
While the statute and case debated in the session were fictional, the issues raised by both sides are at the center of the cryptography debate.
"The right to privacy is not an absolute right," Rasch said. "We must give the government the ability to engage in reasonable searches."
On the other hand, the appelant argued that the past ability of governments to conduct communications surveillance implied the government had a right to conduct this surveillance. "I don't think that the past ability of government to intrude on communications can be turned around to say that the government has an absolute right to do so," said Phil Dubois, attorney for the defense.
According to Michael Froomkin, in order for communications to be private in the United States, the person making the communications must take steps to establish an expectation of privacy. Such steps could include encrypting files.
However, Rasch said that such a statute would only ensure the government's continued right to conduct searches under Title 3, the law that provides for wiretaps.
Besides the central point about whether individuals have an absolute right to privacy, several other issues were discussed. For example, Andrew Good said that the statute effected the types of content people might choose to speak about. "It is widely recognized in the law that the assurance of privacy has everything to do with the content of expressions," Goode said.
However, Rasch argued that this statute gave the government no additional powers to search not already present in the wiretap laws. The same content-based privacy argument could be made with existing laws.
While government attorney Mark Jackowski said there was some intrusion in the system, it was the minimal intrusion required to deal with the problem of cryptography. In response to a question from the judges, he compared the registration requirement to registration for selective service. "The mere act of turning over a key communicates nothing," he said.
After the arguments concluded, the attorneys on both sides answered questions from the audience. Several interesting models were proposed to deal with the situation.
Mike Godwin of the Electronic Frontier Foundation asked what would happen if the government tried to outlaw an obscure language like Navajo. (Navajo was used during World War II for some encoded messages because of the scarcity of native speakers.)
According to Goode, the government might be able to outlaw the use of a language in obstructing justice. For example,a law outlawing Navajo when used to conceal a crime might be constitutional. However, Goode said that it would be harder to defend legislation as it approached a total ban.
This statement was consistent with a point Dubois tried to make in his argument. He said that this statute was unconstitutional in part because it did not require a crime be committed along with the encryption.
While a panel of federal judges heard the fictional case and asked questions, they will not render a decision. According to Andrew Grosso, event organizer, judges do not generally issue opinions on issues that they might some day hear in a real court. Instead, a shadow panel of three law professors will issue an opinion on the case by 5:30 p.m. Friday.
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