Thursday the 9th U.S. Circuit Court of Appeals upheld a lower-court ruling that found current federal restrictions on encryption technology unconstitutional. This decision is a step in the right direction not only for individual privacy rights, but also for the ongoing development of electronic commerce.
Recently there has been a struggle between law enforcement advocates, and privacy advocates and U.S. software makers over encryption. The former argue that the government should maintain export limits and maybe impose further restrictions on the domestic use of strong encryption. The latter feel that restrictions infringe on First Amendment rights and want the government to step aside. Strong encryption, which uses up to a 128-bit key, provides necessary security on the Internet that is not found in the weaker 56-bit keys currently available.
New technologies have taken away a lot of individual privacy that can be regained with encryption. People finders offered by a number of Internet search engines provide information on individuals such as address, telephone number, e-mail address and a map of the area near the person’s home. Every time a person uses the Internet, they produce a click stream that alerts businesses and other interested parties to every site a person has visited. Moreover, unencrypted e-mail can be easily accessed by unwanted people.
There are also many business opportunities on the Internet that are currently not being used to their full potential. With encryption, software consumers can send personal information over the Internet without having to worry about it getting into the wrong hands. With this worry alleviated, Internet commerce will increase rapidly.
Law enforcement advocates fear encryption will make it more difficult to catch criminals. Encryption regulations, though, have done little to stop criminals; rather they aid them. Without a strong program to encode credit card and other personal information over the Internet, unscrupulous individuals have easy access. Also, if strong encryption programs were illegal, criminals would not cease using them. Many criminals have the resources to access encryption software; other technology users should have the same resources.
The Circuit Court decision last week, in which Daniel Bernstein sued several government agencies over encryption laws, poses an interesting point about the sale of such technology. Bernstein claimed the export control laws, which prohibit the sale of encryption products overseas, “act as a prior restraint on his constitutionally protected speech and are overly broad to serve their purpose of protecting national security.” U.S. encryption program manufacturers are nervous that if there are continued restrictions on exports of these programs, they will be unable to compete with foreign markets. Also because the restrictions are on strong encryption programs, the technology available to the public is weak and ineffective.
Legislation restricting strong encryption violates the First and Fourth Amendments. Encryption is a very valuable commodity and tool in the technology world. If the government were to step back and allow total access to encryption programs, technological advances would be safer and more effective.