Under multiple precedents the United States government has made a firm argument in favor of regulating Cryptography. Organized crime involving cryptography has continually stifled U.S. intelligence agencies. Cryptographic schemes used in forms of illegality continually distress the United States Government. As a result many officials want “backdoors” to be put into place in order to protect National Security.
Data Encryption Standard (DES) has been the United States encryption standard since 1977. Derived from a 56-bit single-key encryption basis, DES exportation has been regulated by the U.S. Government and is allowed only on sensitive governmental data. DES was further regulated by shortening its key in fear of illegal usage. As time has permitted, DES has become less secure. In 1993 a new encryption standard was developed for the purpose of regulating cryptography named the Escrowed Encryption Standard. ESS keys are compatible yet different, allowing governmental agencies to intercept and decrypt its encryption with the use of a chip. Known as the Clipper initiatives, the government developed ESS in order to encrypt voice transmissions via the Chipper chip and data transmissions via the Capstone chip. The government’s plea to use ESS is backed by many strong arguments.
SKIPJACK, Clipper’s fundamental algorithm, provided the government with resources which would enable the regulation of cryptography for the next 30 years or more. SKIPJACK’s unique structure disallows today’s shortcut methods of attack while still providing internal structure to protect national security objectives. With 1 trillion possible keys, SKIPJACK would take 400 billion years to try all of its keys amid today’s modern processing power.
Key Management Infrastructure (KMI) or Clipper III tried to reform certain aspects to allow private and public keys. KMI relied on certificate authorities to meet government access requirements. However like its antecedent, the KMI proposal was discarded. Despite these events the U.S. Government continues to argue that regulation of cryptography is essential to national security. After the September 11th attacks, Senator Gregg of New Hampshire stated “I am hopeful we can set up a regime that will be fair, that will be subject to the judicial controls necessary to protect the
Constitutional rights of people who are law-abiding but will also give our intelligence community the access to the information they need when they know there is somebody out there using encryption technology for the purposes of pursuing a terrorist act in the United States.”
Although regulation of such encryption could possibly limit some of its uses for illegality, many argue that government has no right to interfere with private digital information. Cryptography is essential for online businesses to provide security to its users. Many advocate that it prevents criminal activity in and of itself. Still other arguments against regulation say that those wrongfully using it would have access to different kinds of encryption regardless of its control. Arguments bring into light the first, fourth and fifth amendments and are also backed by numerous acts.
Advocates argue that forced disclosure of documents is a violation of the first amendment, which would in turn disallow the government from regulating encryption by forcing organizations to enclose the keys to their encryption. The Fourth Amendment states “unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause.” Just as the U.S. postal service must have a warrant to inspect suspicious packages, so also should Cyber Agencies be forced to present warrants for the interception and decryption of private personal data. Lastly the Fifth Amendment states “No person…. Shall be compelled in any criminal case to be a witness against himself.” This suggests that if the government intercepts and decrypts information and uses it against a defendant, the government is violating the defendant’s Fifth Amendment right.
In May of 1998, the E-Privacy Act was introduced by Senators John Ashcroft, Patrick Leahy, and Conrad Burns. The "Encryption Protects the Rights of Individuals from Violation and Abuse in Cyberspace Act" encourages strong encryption to be dispersed within e-commerce without back-doors such as Clipper Chips to be used by the government. In the same manner, the act allows businesses to use their own encryptions such as Pretty Good Privacy (PGP), a popular public-keyed encryption used worldwide. The E-Privacy act has improved law enforcement by establishing the National Electronic Technology Center to assist local, state, and federal law enforcement while also preserving our constitutional rights.
The SAFE act (Security and Freedom through Encryption), introduced by Virginia Congressman Bob Goodlatte in 1999, prevents economic crime, promotes electronic commerce, and protects the personal privacy of law-abiding Americans.
SAFE is able to prevent the cover-up of felonies by the use of encryption while allowing free usage of cryptography. By implementing this act, citizens are protected from the invasions of privacy that could result from the regulation of encryption.
Cryptography will remain a controversial issue. Future tragedies involving ethical issues based on encryption will continue to ignite debate on whether cryptography should be regulated. Many mediums across digital firms can be used for both protective as well as criminal activities. Means of security originally used to protect will persistently be twisted by those seeking to harm. The underlying question that remains is whether regulation is more beneficial then deregulation.
Personally I believe that the notion of regulating encryption at this phase of the global network is not feasible. Encryption is currently so widely distributed that regulation would hurt more people then it would protect. Regulating such a powerful tool for security in light of a few who abuse its power is unhealthy. The Fourth Amendment is applicable to a home file cabinet just as it is to files within a home computer. It would be elusive to believe that a standardized encryption could possibly be implemented and regulated in a way that eliminates its illegal usages.
Although the digital age creates ambiguity within new constitutional mythology and interpretation, our foundational principles should continue to be taken in their original proper meaning. As the United States continues to expand its technological boundaries, it must nevertheless cease to preserve the constitution in its literal context.