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SUMMARY:

... Cryptography, the process of using secret codes to protect or conceal

information, dramatically increases our privacy and holds the key to maintaining

effective control over an ever-increasing flow of data. ... This Comment

proposes that current technology has made cryptography a necessary element in

main taining our constitutional right to free speech. ... Alternatively,

cryptography is speech, but the rules of free speech do not apply to

cryptography. ... In the summer of 1990, network users discovered the potential

of asymmetric cryptography in a program called "Pretty Good Privacy." ... This

Comment argues that direct state regulation of cryptography is an

unconstitutional abridgement of free speech. ... The creation of the message and

the use of cryptography are inseparable. ... A cryp tography regulation would

attach equally to any sort of speech the user encoded, from pornography to

political debate. In a public forum, the government's limited interest cannot

support cryptography regulation. ... Advancing the same safety interests, the

fit between reg ulating cryptography and crime prevention suggests the same

police power argument for regulation in a limited public forum. ... The use of

cryptography on the Internet is distinguishable from the airport solicitation in

Krishna. ... Because encrypted communications are un questionably speech,

cryptography regulations are a form of prior restraint. ...

TEXT:

I. INTRODUCTION

We are familiar with the reduction in our freedoms accompanying most

technological innovations. Metal-detectors search us at the airport;

theft-sensors frisk us in the shopping mall and pagers tap us anytime day or

night. n1 In the age of lightning-fast computer searches, global net works and

wireless communication, our most private information lies ex posed to the world.

n2 Cryptography, the process of using secret codes to protect or conceal

information, dramatically increases our privacy n3 and holds the key to

maintaining effective control over an ever-increasing flow of data. n4

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n1. Robert Lee Hotz, Demanding the Ability to Snoop, Los Angeles Times, Oct. 3,

1993, at B1.

n2. Steven Winters, Comment, The New Privacy Interest: Electronic Mail in the

Work place, 8 High Tech. L.J. 197, 219 (1993) (citing Erwin Chemerinsky, The

Supreme Court, 1988 Term-Foreword: The Vanishing Constitution, 103 Harv. L. Rev.

43, 96-98 (1989)). In a recent Defense Department program, experts attacked

12,000 computer systems and suc ceeded in penetrating security 88% of the time.

U.S. to Propose Federal Agency to Secure Information Superhighway, Wall St. J.,

June 14, 1995, at B9. The attacks went unde tected 96% of the time. Id.

n3. John Mintz & John Schwartz, Chipping Away at Privacy? Encryption Device

Widens Debate Over Rights of U.S. to Eavesdrop, Wash. Post, May 30, 1993, at C1.

Massa chusetts representative Edward J. Markey expresses the feelings, "[i]n a

digitally linked world, where encryption is the key to privacy, banning

encryption may be like banning privacy." Id.

n4. Timothy B. Lennon, Comment, The Fourth Amendment's Prohibitions on Encryp

tion Limitation: Will 1995 be Like 1984?, 58 Alb. L. Rev. 467-71 (1994).

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Although historically used by governments to wage war, n5 cryptogra phy can

limit access to information, screen electronic communications and provide

reliable identification on electronic networks. n6 Services like pay-per-view

television and remote banking depend on cryptography. n7 Control over our

personal information is essential in a free society. n8 However, the thought of

individual citizens exercising complete com mand over their own privacy alarms

the government. n9 Louis Freeh, di rector of the Federal Bureau of

Investigation, worries about "too much privacy in the wrong hands" n10 and the

National Security Agency's Gen eral Counsel declares "citizens do not have a

constitutional right to un breakable encryption algorithms." n11 This Comment

proposes that current technology has made cryptography a necessary element in

main taining our constitutional right to free speech. n12 Like the printing

press, cryptography promises to change the way we think about the exchange of

ideas. n13

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n5. David Kahn, The Codebreakers 190 (1967) (marking the application of the tele

graph to battlefield communication in 1844 as the start of modern cryptography).

n6. Shimson Berkovits, Cryptography, Encyclopedia of Physical Science and Tec

hnology, 3 Co-Cryp 849 (Robert A. Meyers ed., 1987).

n7. Hotz, supra note 1, at B1. On the other hand, the current electronic cash

system uses a dangerously weak form of cryptography. Don't Tell it to the

Spartans (Nor, Indeed, to Anyone Else), The Economist, Feb. 18, 1995, at 82.

Making an ominous prediction about the digital economy:

[B]illions of dollars flow across the net each day .... [O]rganized crime hires

the best hackers. Eventually someone breaks into the system, gaining the ability

to coin fake e-cash. He and his colleagues use it widely, surreptitiously to

earn a lot of real money .... Others notice the system has been breached and the

whole world comes tumbling down.

Id.

Sooner than expected, the nightmare came true. William M. Carley & Timothy L.

O'Brien, Cyber Caper: How Citicorp System was Raided and Funds Moved Around the

World, Wall St. J., Sept. 12, 1995, at A1. A Russian biology student penetrated

Citicorp's $ 500 billion-dollar-a-day network and started siphoning money. Id.

The intruder moved 12 million dollars and withdrew about $ 400,000 in cash

before being caught, all in a system experts believed was impregnable. Id. at

A16.

n8. Justice Douglas foreshadowed the current crisis in his dissenting opinion in

Os born v. United States, 385 U.S. 323 (1966) (Douglas, J., dissenting).

We are rapidly entering the age of no privacy, where everyone is open to surveil

lance at all times; where there are no secrets from government. The aggressive

breaches of privacy by the Government increase by geometric proportions. Wire

tapping and "bugging' run rampant, without effective judicial or legislative con

trol.... The dossiers on all citizens mount in number and in size. Now they are

being put on computers so that by pressing a button all the miserable, the sick,

the suspect, the unpopular, the offbeat people of the Nation can be instantly

identi fied.... These examples and many others demonstrate an alarming trend

whereby the privacy and dignity of our citizens is being whittled away by some

times imperceptible steps. Taken individually, each step may be of little conse

quence. But when viewed as a whole, there begins to emerge a society quite

unlike any we have seen - a society in which government may intrude into the

secret regions of a man's life at will.

Id. at 341-43.

n9. Howard Reingold, Big Brother Could be Logging On, San Francisco Examiner,

Apr. 27, 1994, at C2. The American government has had a long involvement with

cryptog raphy. When Aaron Burr was tried for treason before Chief Justice John

Marshall, one key piece of evidence was a coded letter sent by Burr to his

military accomplice, General James Wilkinson. Kahn, supra note 5, at 186-87.

Another turncoat, Benedict Arnold, sent messages in a code based on Blackstone's

Commentaries. Id. at 177. When Thomas Jeffer son served as America's first

Secretary of State, he created a code which was secure enough to be used by the

United States Navy for almost two hundred years. Id. at 192-94.

n10. Reingold, supra note 9.

n11. G. Burgess Allison, Technology Update, Law Pract. Mgmt., Oct. 1994, at 12.

n12. The speech component of privacy essentially:

[P]rovides the individual with the opportunities he needs for sharing

confidences and intimacies with those he trusts - spouse, "family,' personal

friends, and close associates at work. The individual discloses because he knows

that his confi dences will be held, and because he knows that breach of

confidence violates social norms in a civilized society ....

Alan F. Westin, Privacy and Freedom 33-38 (1967).

n13. Thomas L. Tedford, Freedom of Speech in the United States 13-16, 322 (2d

ed. 1993).

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The magnitude of this change coupled with a lack of understanding has led to

calls for regulation of private cryptography. n14 There are two equally

misconceived arguments for the regulation of cryptography. n15 First,

cryptography is not speech and therefore, not constitutionally pro tected at

all. n16 Alternatively, cryptography is speech, but the rules of free speech do

not apply to cryptography. n17

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n14. Hotz, supra note 1, at B1.

n15. Traditional First Amendment law does not fit cryptography. When faced with

such a situation, the analysis could declare the example a monster and place it

outside the defi nition of speech. Laurence H. Tribe & Michael C. Dorf, On

Reading the Constitution 87-91 (1991). As an alternative, analysis could hold

cryptography to be speech, but that it is a special case since so few rules

apply. Id. A better solution would be to recognize that our definition of speech

improperly excludes coded data and that it should adjust to this new definition.

Id.

n16. Id.

n17. Hotz, supra note 1, at B1.

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This Comment shows that cryptography is undeniably a form of speech. Moreover,

it argues that the failure of traditional analysis to effectively categorize

cryptography is evidence that it is not simply an extension of existing free

speech concepts, but a new dimension to our constitutional rights. Finally, this

Comment proposes that like the traditional press, the solution to the question

of cryptography regulation lies within the marketplace. n18

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n18. Duncan M. Davidson, Common Law, Uncommon Software, 47 U. Pitt. L. Rev.

1037, 1040 (1986); Symposium, Electronic Communication and Legal Change,

Computer Network Abuse, 6 Harv. J.L. & Tech. 307, 310-13 (1993) (concluding that

the best means of maintaining information security is to establish a properly

functioning computer security market). Predictably, a USA Today poll found that

only 6% of Internet users wanted the federal government to administer it. James

Kim, Internet Users Favor Self-Regulation, USA Today, Sept. 12, 1995 at B1.

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II. BACKGROUND

The concept of a free press is arguably the inevitable consequence of the

uncontrolled spread of printing technology. n19 The introduction of printing in

England in 1476 led immediately to government licensing of printing presses. n20

As literacy spread and the fear of an informed public subsided, these prior

restraints disappeared. n21 As a result, Blackstone defined free speech as that

which existed in the absence of prior re straints. n22 Just as the technology of

printing ingrained itself into the fabric of our society, n23 cryptography will

play an indispensable roll in the digital age.

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n19. Tedford, supra note 13, at 322.

n20. Id. at 6.

n21. Id.

n22. 4 William Blackstone, Commentaries 151-52.

n23. Tedford, supra note 13, at 13-16.

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Cryptography, the craft of communicating in secret code, n24 is as old as

written language. n25 The alphabet, for example, is simply a code we all

understand. n26 The purpose of a secret code is to limit access to the con tents

of a message to a select group. n27 In other words, we use secret codes to keep

secrets.

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n24. Kahn, supra note 5, at xiii.

n25. Hamilton Nickels, Codemaster: Secrets of Making and Breaking Codes 5

(1990).

n26. Kahn, supra note 5, at 902 (arguing that the system of writing the ancient

Greeks developed was a response to their encounter with a more complex code,

Egyptian hieroglyphics).

n27. Michael Kurland, The Spymasters's Handbook 5 (1988).

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A. Symmetric Cryptography

Examined mathematically, there are two families of cryptographic systems. n28

Most familiar are symmetric cryptographic systems. n29 Both systems change one

group of readable symbols into a second set of un readable symbols. n30 Imagine

a code which substitutes the original let ters of a word with the letters which

come two places earlier in the alphabet. In this manner, the message, "Free

Speech" becomes "gsff qffdi." n31 The operation of substituting the letters is

known as the "key" to the cipher. n32 In symmetric cryptography, the sender uses

this key to encode his message and the receiver uses the same key to decode. n33

As long as the key remains a secret, it is impossible to read the message and

the secret is safe. n34

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n28. Berkovits, supra note 6, at 849; see generally Bruce Schneier, Applied

Crypto graphy (1994) (surveying modern computer cryptography).

n29. Berkovits, supra note 6, at 849.

n30. Id. The set M is the actual message and is called the plaintext, while C,

the en coded message, is known as ciphertext. Id. The entire operation is called

a cipher. Id.

n31. See Kurland, supra note 27, at 151 (giving a straightforward explanation of

sub stitution ciphers).

n32. Michael Kurland, The Spymaster's Handbook 151 (1988).

n33. Id.

n34. Id.

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The practical weakness of symmetric ciphers is keeping the key a secret. n35

These systems require that both the sender and the receiver know the solution.

n36 This means that at some point the parties must exchange unencoded

information about the key n37 and thus the communi cation is always vulnerable

to interception. n38

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n35. Id.

n36. See Kurland, supra note 27, at 851.

n37. Kurland, supra note 27, at 851.

n38. Kurland, supra note 27, at 851.

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Aside from interception, a more determined outsider can find the so lution to

symmetric ciphers by engaging in a series of experiments. n39 At tackers may try

many different operations on the encoded message, hoping one attempt will reveal

an intelligible message. n40 The time and effort necessary to mount this kind of

attack is known as the "work fac tor" of a cipher, and rates its relative

security. n41 One of the most sophis ticated symmetric ciphers, the Data

Encryption Standard ("DES"), n42 uses a 56-bit key. n43 To find the right key,

an attacker is faced with sev enty quadrillion combinations. n44 The work factor

associated with DES prevents anyone armed with paper and pencil from ever

finding a key. n45

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n39. Kahn, supra note 5, at 399 (crediting Gilbert S. Vernam with creating

virtually unbreakable code in 1917).

n40. Berkovits, supra note 6, at 853. The search for keys through trial and

error is known as an "exhaustive search" style of attack. Id. Other types of

direct attacks include statistical attacks based on language usage, analytical

attacks based on flaws in a cryptog raphy system and traffic analysis which

looks at the identity of the users. Id.

However, the difficulty of any given method of attack depends on what part of

the message the cryptanalyist holds. Id. at 853. While an attacker in possession

of ciphertext is generally harmless, one who holds some ciphertext and its

companion plaintext is far more threatening. Id. The most dangerous attacker is

one who can selectively examine specific segments of ciphertext and its

corresponding plaintext. Id.

n41. Berkovits, supra note 6, at 852. Since single-key systems rely on trial and

error for security, they actually require shorter keys than asymmetric systems

to achieve the same work factor. Id. Therefore, the work factor of a cipher is

generally a multiple of the sys tem's key length. Daniel Pearl,

Encryption-Software Plan Presented Using "Keys' Held by Escrow Agents, Wall St.

J., Aug. 18, 1995, at A3. Ominously, a French hacker recently cracked a 40-bit

key, and even longer keys will become vulnerable soon. Berkovits, supra note 6,

at 853.

n42. Berkovits, supra note 6, at 854-55. An excellent directory of cryptography

products is available on WWW Page: Pointer to Cryptographic Software, URL

http://www.cs.hut.fi/crypto/software.html, created by Tatu Ylonen, viewed Nov.

18, 1995.

n43. Id. DES uses eight nulls to check for errors or tampering in the

transmitted message in addition to the 56-bit key. Id.

n44. Id.

n45. Id.

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Using an ordinary desktop computer, however, an attacker could try all possible

keys relatively quickly. n46 The rapid increase in computer processing speeds

n47 led researchers in 1977 to predict that DES would be unable to protect

information past the year 1990. n48

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n46. Waldo T. Boyd, Computer Cryptology 49 (1988).

n47. Vic Sussman, The Devil of the Internet, U.S. News & World Report, Apr. 17,

1995, at 12.

n48. Berkovits, supra note 6, at 855.

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B. Asymmetric Cryptography

In 1978, Ronald Rivest, Adi Shamir, and Leonard Adleman devel oped a

revolutionary new style of cipher. n49 Named after its inventors, the RSA system

employs a logarithmic function n50 to produce two keys. n51 By choosing a

specific base number and an exponent, a sender can create a key that can be

split between an encrypting function and a decrypting function. n52 Therefore, a

party who wants to receive messages can pub lish part of the key n53 and keep

the other part n54 a secret. With the public half, n55 a sender may encrypt

messages, but only the person with the pri vate key can decrypt them. This

ability to receive messages without a loss to security is the genius of

asymmetric cryptography.

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n49. Berkovits, supra note 6, at 856.

n50. Berkovits, supra note 6, at 856. A logarithm is a mathematical expression

which raises a base number by an exponent to produce a given, third number.

Webster's II New Riverside University Dictionary 702 (1st ed. 1984).

n51. Francis Litterio, WWW Page: The Mathematical Guts of RSA, URL: http:

//draco.centerline.com:8080/franl/pgp, created by Francis Litterio, viewed Nob.

18, 1995. Litterio simplifies the mathematics of RSA:

1. Find P and Q, two large (e.g., 1024-bit) prime numbers.

2. Choose E such that E and (P-1)(Q-1) are relatively prime, which means they

have no prime factors in common. E does not have to be prime, but it must be

odd. (P-1)(Q-1) can't be prime because it's an even number.

3. Compute D such that (DE-1) is evenly divisible by (P-1)(Q-1). Mathematicians

write this as DE mod (P-1)(Q-1), and they call D the multiplicative inverse of

E.

4. The encryption function is encrypt(T) = (TE) mod PQ, where T is the plaintext

(a positive integer) and "' indicates exponentiation.

5. The decryption function is decrypt(C) = (CD) mod PQ, where C is the

ciphertext (a positive integer) and "' indicates exponentiation.

Id. Litterio cautions that no one has proven that RSA does not have a

mathematical weak ness. Id.

n52. Berkovits, supra note 6, at 855.

n53. Litterio, supra note 51. The public part of the key is (PQ,E). Id. Starting

with only (PQ,E) an attacker cannot easily calculate D, P or Q and therefore a

user can openly dis tribute the public half of the key. Id.

n54. Litterio, supra note 51. The private part of the key is D. Id.

n55. Berkovits, supra note 6, at 850.

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In the summer of 1990, network users discovered the potential of asymmetric

cryptography in a program called "Pretty Good Privacy." n56 Anonymously posted

on the Internet, n57 the program produces its code using a RSA system. n58 The

program, known as "PGP" n59 to users, was an immediate hit and it is still

enthusiastically copied, n60 modified n61 and dis tributed all over the world.

n62

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n56. William M. Bulkeley, Cipher Probe: Popularity Overseas of Encryption Code

has U.S. Worried, Wall St. J. Europe, May 2, 1994, at A1. A few of the Internet

sites offering PGP can be found on WWW Page: M.I.T. Home Page, URL:

http://www.mit.ed/network/pgp.html, viewed Nov 18, 1995; see also, WWW Page:

Mantis Home Page, URL: http://www.mantis.co.uk/ pgp/pgp.html, viewed Nov. 18,

1995.

n57. Bulkeley, supra note 56.

n58. Bulkeley, supra note 56.

n59. See WWW page: Frequently Asked Questions About Pretty Good Privacy, URL:

http://www.cis.tezcat.com/web/security, created by Andre Bacard, viewed Nov. 18,

1995.

n60. Id. Zimmermann also distributes a cryptography product called the PGPfone

which encodes ordinary telephone conversations. Pretty Good Phone Privacy,

Newsweek, Aug. 28, 1995, at 10. PGPfone may be located on the internet using WWW

Page: Pointer to Cryptography Software, URL:

http://www.cs.hut.fi/crypto/software.html, created by Tatu Ylonen, viewed Nov.

18, 1995.

n61. Id. PGP 1.0 uses RSA to protect DES keys during transmission, but employs

DES to protect the body of the message. Id. PGP 2.0 and later versions use the

Improved Data Encryption Algorithm ("IDEA") for the message. Id. An on-line

warehouse of cryptography programs, such as IDEA, can be found at FTP:

ftp.dsi.unimi.it; login: anonymous; pass word: e-mail address; directory:

pub/security/crypt/code/, accessed Apr. 28, 1995. The most recent commercial

version of PGP is 2.6.2 and the most recent freeware version is 2.7.1. Litterio,

supra note 51. A draft of PGP 3.0 is also beginning to circulate. See also WWW

Page: Pointer, supra note 42.

n62. WWW Page: Pointer, supra note 42.

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C. The Potential Advantages

The development of asymmetric encryption systems is not just a breakthrough in

theoretical cryptography. Asymmetric systems allow businesses to exploit the

economic potential of computer networks. n63 On the current networks, building a

business on the Internet "is like trying to build a bank without walls." n64

Asymmetric cryptography provides tools for both security n65 and identification.

n66 Businesses using asymmet ric systems can deliver their products to consumers

and protect their property in ways simply not possible under conventional

systems. In es sence, asymmetric cryptography gives the networks the walls they

des perately need. n67

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n63. Mark L. Gordon & Diana J.P. McKenzie, A Lawyer's Roadmap of the Information

Superhighway, 13 J. Marshall J. Computer & Info. L. 177, 182 (1995) (cataloging

the various computer networks). Other networks include the National Information

Infrastruc ture Testbed ("NIIT"), the National Research and Education Network

("NREN"), and pri vate networks such as Prodigy, CompuServe, and America Online.

Id. at 181-84. The networks also go by popular names such as the Net, the Web,

the Cloud, the Matrix, the Metaverse, the Datasphere and, of course, the

Information Superhighway. Philip Elmer- DeWitt, Welcome to Cyberspace, Time,

Spring 1995, at 4. Today approximately forty million people around the world

have access to the Internet. Id. at 9.

n64. Nate Zelnick, Keeping Business Safe on the Internet, PC Magazine, Apr. 25,

1995, at 31 (outlining AT&T's Information Vending Encryption System ("IVES")

chip).

n65. David Post, Encryption - It's Not Just for Spies Anymore, Am. Law., Dec.

1994, at 106 (describing the Internet as "Dodge City"). Although 30,000

companies have Internet addresses, they are "simply showing their faces" because

of the lack of security on the net work. Id.

n66. See Jill Gambon, Signature Laws Near - California, Washington May Follow

Utah Lead on Digital Signatures, Information Week, May 8, 1995 at 24. The

pioneering legisla tion in this area is the Utah Digital Signature Act, Utah

Code 46-3-101 et. seq. (1995).

n67. Charles L. Evans, Comment, U.S. Export Control of Encryption Software:

Efforts to Protect National Security Threaten the U.S. Software Industry's

Ability to Compete in Foreign Markets, 19 N.C. J. Int'l L. & Com. Reg. 469, 473

(1994).

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Cheap and convenient, asymmetric cryptography is not simply an economic device.

It creates a new kind of speech-based privacy. n68 In Thailand, Guatemala and El

Salvador, human rights activists are able to conduct work they otherwise would

not risk through the use of cryptog raphy. n69 During the Tiananmen Square

uprising, Chinese dissidents used the cipher to communicate with the outside

world. n70 The 1994 coup attempt in Russia generated a message, "[i]f

dictatorship takes over Rus sia ... PGP ... will help democratic people if

necessary. Thanks." n71 More ordinary users of PGP include an author who

encrypts his work before sending it to his editor and an astronomer who encrypts

his obser vations to prevent others from claim-jumping. n72 Around the world,

cryp tography is proving vital in protecting freedom. n73

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n68. Commercial software companies are also beginning to exploit the screening

feature of cryptography. Jared Sandberg, New Software Filters Sexual, Racist

Fare Circulated on the Internet, Wall St. J., May 15, 1995 at B12 (introducing a

product that blocks offensive messages and searches for offensive sites).

n69. Vic Sussman, Lost in Kafka Territory, U.S. News & World Rep. Apr. 3, 1995,

at 32.

n70. Id.

n71. Id.

n72. Bulkeley, supra note 56, at A1.

n73. Bulkeley, supra note 56, at A1.

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D. The Drawbacks

Unlimited privacy has a dark side as well. n74 For example, cryptog raphy

prevented the Los Angeles police from reading the diary of a child- pornography

suspect. n75 It has also kept the police from reading the ac count books of

fraud artists. n76 James Bidzos, who works for RSA Secur ity, says he receives

regular requests from police to help decipher encrypted information. n77 Law

enforcement fears this is merely a shadow of what awaits them. n78

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n74. Symposium, supra note 18, at 310-13. Scholars identify six general areas of

diffi culty in network law enforcement. Id. First, spatial landmarks do not

exist. Id. at 331. Second, criminal activity on a network is indistinguishable

from lawful activity. Id. at 332. Third, it is difficult to positively identify

users over a network link. Id. at 333. Fourth, traditional forms of proof will

not work when the criminal's only contact with the scene of the crime was over a

network. Id. at 334. Fifth, the "hearts and minds" of computer users are

generally anti-government. Id. Sixth, current law does not sufficiently deter

network abuse. Id. at 336.

n75. Bulkeley, supra note 56, at A1.

n76. Bulkeley, supra note 56, at A1.

n77. Bulkeley, supra note 56, at A1.

n78. Benjamin Wittes, FBI, Justice Wary of Internet Crime; Info-Highwaymen

Staying Far Ahead of Law Enforcement, Tex. Law., Oct. 24, 1994, at 8.

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Even before the age of asymmetric cryptography, the National Se curity Agency

("NSA") n79 saw a threat in private cryptography. n80 Goaded by the NSA,

Congress categorized cryptography as an instrument of war and made it subject to

the same kind of export restrictions as hand gre nades and fighter planes. n81

Although the federal government has not yet restricted the domestic use of

encryption, n82 it is promoting its own ver sions of digital security to wean

the public away from private encryp tion. n83 In the government systems, the key

to the system is held in the hands of an escrow agent who is charged with

releasing it only in the event of an authorized request. n84

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n79. 50 U.S.C. 401-32 (1988) (establishing the NSA).

n80. James Bamford, The Puzzle Palace 351-55 (1982).

n81. 22 C.F.R. 121.1 (1993) (regulating hand-grenades and aircraft). The Arms Ex

port Control Act includes, "cryptographic (including key management) systems,

equipment, assemblies, modules, integrated circuits, components or software with

the capability of maintaining secrecy or confidentiality of information ...."

Id. 121.01; see John Perry Barlow, Jackboots on the Infobahn, Wired 2.04, Apr.

1994 at 16.

n82. Communications Assistance for Law Enforcement Act, Pub. L. No. 103-414, 108

Stat. 4279 (1994) (signed into law on Oct. 25, 1994). Known as the 1994 Digital

Telephony Act, this law places an affirmative duty on communications

service-providers to cooperate with government interceptions. Id.

n83. See generally U.S. to Propose Federal Agency, supra note 2, at B6. The most

promi nent of these escrow proposals is the Clipper Chip, a semiconductor which

scrambles messages. FTP: Vince Cate's Cryptorebel and Cypherpunk Home Page,

ftp://furmint.netcar.cs.emu.edu; login: anonymous; password: e-mail address;

directory: secur ity, accessed Nov. 18, 1995.

n84. Philip Elmer-DeWitt, Who Should Keep the Keys?, Time, Mar. 14, 1994, at

909-91.

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However, escrow proposals are fundamentally flawed. n85 First, the proposal was

developed amidst an aura of secrecy and mistrust. n86 Sec ond, the resulting

limit to surveillance does not warrant such elaborate government access to

communications. n87 Third, ordinary citizens will not use an escrow system

voluntarily. n88 Finally, without a better sys tem of controls, an escrow system

is prone to corruption. n89 In fact, public reaction suggests that users will

not accept any system managed by the state. n90

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n85. Bruce Sterling, So, People We Have a Fight on Our Hands, Wired 2.07, July

1994 (responding to pro-regulation arguments). On the other hand, organizations

may need pri vate escrow systems to prevent death or departure from exposing or

permanently conceal ing information. See Don Clark, Motorola Plans to Help Firms

Protect Data, Wall St. J., May 15, at B12.

n86. Id.

n87. Id.

n88. Id. at 2.

n89. Hotz supra note 1, at B1. The government maintains 900 separate databanks

con sisting of billions of personal records and the General Accounting Office

documented cases where information from the FBI's National Criminal Information

Center was sold to pri vate parties; used to check up on political opponents and

used to hunt down ex-girl friends. Id.

n90. Zelnick, supra note 64, at 32.

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The question of government regulation of cryptography is a thresh old issue on

the path to the Information Age.

III. AUTHOR'S ANALYSIS

The technology that is bringing the universe to our living rooms also threatens

to eliminate privacy as we know it. n91 This Comment argues that direct state

regulation of cryptography is an unconstitutional abridgement of free speech.

n92 Part IIIA of this analysis addresses those arguments which classify

cryptography as something other than speech. n93 Part IIIB addresses arguments

that concede that cryptogra phy is speech, but attempt to force it into an

exception. n94 Part IV reveals the chilling effect of cryptography regulation on

communications. Fi nally, Part V examines the market for cryptography and

proposes that market mechanics provide a workable solution to the conflict over

infor mation security. n95

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n91. Lennon, supra note 4, at 470 (arguing the regulation of cryptography

violates Fourth Amendment).

n92. See Stewart A. Baker, Don't Worry Be Happy: Why Clipper is Good For You,

Wired 2.06, June 1994, at 92 (outlining the general policy arguments in favor of

government sup plied encryption).

n93. See generally, Tribe & Dorf, supra note 15, at 88.

n94. Tribe & Dorf, supra note 15, at 89.

n95. Symposium, supra note 18, at 342.

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A. Cryptography as Non-Speech

The line between electronic speech and traditional verbal speech is fading into

oblivion. n96 As technology advances, the court's definition of speech tends

toward unpredictable results. n97 Moreover, Congress has considerable power to

regulate individual conduct n98 and even greater power to regulate goods and

services. n99 Consequently, the issue of the status of encoded communication as

"speech" is determinative.

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n96. See Note, infra note 154, at 1083 (noting that all information will be

reduced to a single digital medium); see generally William S. Davis, The

Information Age (William B. Gruener and Marion E. Howe eds., 1979).

n97. Lawrence Tribe, American Constitutional Law 827-30 (2d ed. 1988).

n98. See generally United States v. O'Brien, 391 U.S. 367 (1968) (burning a

draft card is conduct and subject to government control).

n99. See generally Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964)

(using Commerce Clause power to regulate interstate commerce to support civil

rights laws).

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The distinction between speech and conduct is subject to scholarly criticism

because of its unpredictability. n100 The Supreme Court defines flag-burning

n101 as speech, while wearing campaign buttons is defined as conduct. n102

Regulators argue that cryptography is not speech at all. n103 The strength of

this position is that encoded speech carries no message on its surface; since it

does not look like speech, it is not speech.

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n100. Tribe, supra note 97, at 827.

n101. See generally Texas v. Johnson, 491 U.S. 397 (1989) (burning an American

flag is speech and receives constitutional protection).

n102. See generally Broadrick v. Oklahoma, 413 U.S. 601 (1973) (wearing

political but tons is conduct in the government workplace).

n103. Bulkeley, supra note 56, at A1.

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In Yniguez v. Arizonans for Official English, n104 the U.S. Court of Ap peals

for the Ninth Circuit struck down an attempt to put an English- only amendment

in a State constitution. n105 It held that a viewers' fail ure to understand a

message simply means the communication is incom plete; it does not destroy that

message's classification as speech. n106 To reach this conclusion, the Yniguez

court first determined that speaking a foreign language is not a form of

unprotected conduct any more than moving your mouth or typing on a keyboard.

n107 Importantly, the Yniguez court stated foreign languages are speech by

definition n108 and speech "in any language is still speech." n109 Using a

foreign language in volves the same fundamental choices as choosing words in a

sentence. n110 The Yniguez court held that a state could not prohibit the

personal choice of an entire vocabulary nor even a single word. n111

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n104. 42 F.3d 1217, 1231 (9th Cir. 1994).

n105. Id. at 1220.

n106. Id. at 1231.

n107. Id. at 1230.

n108. Yniguez, 42 F.3d at 1230.

n109. Id.

n110. Id.

n111. Yniguez, 42 F.3d at 1230. In Cohen v. California, 403 U.S. 15, 25 (1971),

the Supreme Court endorsed a speaker's right to choose to say "fuck the draft,"

instead of some other expression of the same idea. The Cohen Court took the

position that a government cannot "forbid the use of words without running the

risk of suppressing ideas." Cohen, 403 U.S. at 26.

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Cryptography's similarity to a foreign language is unmistakable. Like a foreign

language, unintelligible symbols can have a meaning, but only for those who

understand the language. The sign language used by the deaf has little meaning

for the unskilled, but carries the entire range of human emotion. n112 Using

cryptography is like adopting a private lan guage, "spoken" only by those who

know the proper key. People send cards on birthdays, place calls to colleagues

and send facsimiles to em ployees. Choosing to do each of these things in

cryptographic language does not make these messages less important. For the

government to insist on a translation of each message simply because it does not

under stand the language is patently unreasonable. Simply because cryptogra phy

is a computer-based language, the courts should not strip it of constitutional

protection. n113

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n112. Tribe, supra note 97, at 833.

n113. Yniguez, 42 F.3d at 1230.

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Another non-speech argument is that cryptography is a mechanical process rather

than a form of speech. Theoretically, cryptography adds nothing to the message

by putting readable material through an opera tion which makes it unreadable.

n114 In a human sense, however, the transformation gives the message security

and thus, influences its au thor. n115 The public availability of a message

determines what a person reveals. The prudent person will presume that

unencrypted messages are as public as a billboard and will restrain his

expression accordingly. The creation of the message and the use of cryptography

are inseparable.

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n114. Berkovits, supra note 6, at 849.

n115. Lennon, supra note 4, at 483.

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A similar issue faced the Supreme Court in Kovacs v. Cooper. n116 The Court

decided that the First Amendment protected the ideas trans mitted by a

loudspeaker, but that it did not protect the level of noise the loudspeaker

produced. n117 In Kovacs, however, the Court focused on the intrusive nature of

the loudspeaker and the protection of private homes. n118 Cryptography, on the

other hand, does not pose any kind of invasion.

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n116. 336 U.S. 77, 86-87 (1949).

n117. Id. at 85.

n118. Id. at 87.

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Moreover, cryptography requires the willing use of a key and thus implies an

element of consent. Because asymmetric systems consist of a public key and a

private key, n119 they create two filters for incoming messages. n120 The

decision to view a message rests entirely with the receiver. n121

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n119. Berkovits, supra note 6, at 849.

n120. Berkovits, supra note 6, at 851.

n121. See Sable Communications of California, Inc. v. Federal Communications

Comm'n, 492 U.S. 115, 128 (1989) (noting that placing a telephone call prevents

the unintended surprises of pervasive mediums like radio).

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In Sable Communications, Inc. v. FCC, n122 the Court addressed this consent

issue when it struck down a prohibition on dial-a-porn services because the

listener had to take affirmative steps to hear the message. n123 E-mail requires

even greater affirmative steps to communi cate than in Sable, and cryptography

goes a step beyond this. n124 Cryp tography creates an unmistakable layer of

consent. Therefore, unlike the situation in Kovacs, cryptography does not create

a need for protec tive regulations to preserve the rights of others.

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n122. 492 U.S. 115 (1989).

n123. Id. at 121.

n124. Id. at 127-28; Jared Sandberg, New Software Filters Sexual, Racist Fare on

In ternet, Wall St. J., Sept. 20, at B12. SurfWatch Software offers a service

which provides the addresses of offensive material. Id. Each month the company

scans the Internet for words such as "pornography" and "pedophilia." Id.

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Undeniably, cryptography is a form of speech. A decision to use a code is one of

the fundamental choices that underlie all expression. n125 Cryptography provides

a form of security which directly alters language choices. n126 In addition, the

affirmative conduct of the user creates a level of consent which separates

cryptography from intrusive expression. Ac cordingly, definitions of speech that

attempt to exclude cryptography fail.

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n125. Yniguez, 42 F.3d at 1231.

n126. See Lennon, supra note 4, at 471.

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B. The Exception Argument

1. Established Speech Restrictions

Beyond the issue of whether cryptography is speech, arguments could be advanced

to limit these systems based on reasonable time, place and manner restrictions.

n127 The unreadable nature of encoded messages means that these standards are a

poor fit for cryptography. n128 The de terminative question will be the legal

status of the electronic networks where the systems operate. n129 While that

issue lies beyond the scope of this Comment, it is possible to discuss

cryptography in a public forum as well as a limited public forum.

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n127. See generally Schneider v. New Jersey, 308 U.S. 147 (1939) (banning all

leaflets in an attempt to control litter was too burdensome on speech to be

constitutional); Konigsberg v. State Bar of California, 366 U.S. 36, 49-51

(1961), reh'g denied, 368 U.S. 869 (1961). Although the Konigsberg Court held

that the freedom of speech is not "an unlimited license to talk," Justice Black

took the position that the words of the First Amendment indicate an underlying

absolute freedom. Id. at 59-60 (Black, J., dissenting).

n128. Tribe & Dorf, supra note 15, at 88.

n129. Edward J. Naughton, Is Cyberspace a Public Forum? Computer Bulletin

Boards, Free Speech, and State Action, 81 Geo. L. J. 409, 414 (1992).

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i. Public Forum

The level of restriction a state may place on speech varies depending on nature

of the forum. n130 Exchanges which take place on a public way, such as in a

street, receive a great deal of constitutional protection. n131 In a computer

network, however, the limits of physical space evaporate. n132 Events which

ordinarily occurred on the street take place between ma chines scattered all

over the globe. n133

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n130. Tribe, supra note 97, at 791-92.

n131. See generally Hague v. C.I.O, 307 U.S. 496 (1939) (holding that the

public's use of streets for debate is an ancient form of liberty).

n132. Teri A. Cutrera, The Constitution in Cyberspace: The Fundamental Rights of

Com puter Users, 60 UMKC L. Rev. 139, 142 (1991).

n133. Naughton, supra note 129, at 413.

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Presumably, with the Internet doubling in size every year, n134 it will soon

earn the title of public forum. n135 Any restrictions on speech in a public

forum must serve a compelling public interest and be narrowly tailored to serve

that interest. n136 The argument is that wide availability of cryptographic

technology creates a compelling threat to the safety of American citizens

because it erodes the ability of government to gather evidence. n137 However,

cryptography functions like a ski-mask, only ob scuring a robber's identity; it

is not inherently dangerous. n138 Further, misuse of cryptography does not

eliminate the ability of police to gather evidence; it only prevents them from

understanding it. n139

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n134. Survey, The Accidental Superhighway, Economist, July 1, 1995, at 3.

n135. See Eric C. Jensen, An Electronic Soapbox: Computer Bulletin Boards and

the First Amendment, 39 Fed. Comm. L. J. 217 (1987).

n136. In Brandenburg v. Ohio, the Supreme Court reversed a conviction under a

criminal anarchy law where the speaker advocated racial violence in a television

interview. 395 U.S. 444, 446 (1969) (per curiam). The Brandenburg Court stated

that for the government to criminalize speech, the speaker would have to

intentionally incite lawless action. Id. at 447.

n137. Bulkeley, supra note 56, at A1.

n138. Bacard, WWW Page, supra note 59.

n139. Lennon, supra note 4, at 473.

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Furthermore, no regulation could ever be sufficiently tailored to the goal of

crime prevention n140 to survive constitutional scrutiny. n141 A cryp tography

regulation would attach equally to any sort of speech the user encoded, from

pornography to political debate. In a public forum, the government's limited

interest cannot support cryptography regulation.

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n140. Nina Schuyler, Bugs in the System, The FBI Wants to Monitor Traffic on the

Infor mation Superhighway, Cal. Law., July 1994. at 149 (noting that the

government seems to want access to all information).

n141. Lawrence Tribe, American Constitutional Law 830 (2d ed. 1988).

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ii. Limited Public Forum

In a limited public forum, the government creates or authorizes the public's use

and therefore, it has a greater power to regulate speech. n142 The regulation

must be reasonable in light of the purpose of the forum; it must be viewpoint

neutral and it must leave open alternate channels of expression. n143 Advancing

the same safety interests, the fit between reg ulating cryptography and crime

prevention suggests the same police power argument for regulation in a limited

public forum. n144

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n142. Id. at 831.

n143. Id.

n144. Id. at 982.

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In International Society for Krishna Consciousness v. Lee, n145 the Supreme

Court established a yardstick for reasonableness in a limited public forum. n146

It upheld a regulation prohibiting the solicitation of do nations in an airport

terminal because the regulation promoted safe traf fic flow in an airline

terminal. n147 While not the most narrowly tailored approach, the Krishna court

reasoned that in this non-traditional forum, the regulation only needed to

reflect the purpose of the forum and exhibit viewpoint neutrality. n148 The

focus of the court was the purpose of the terminal and in that light, the

regulation was reasonable. n149

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n145. 112 S. Ct. 2701 (1992).

n146. Id. at 2703.

n147. Id. at 2701.

n148. Id. at 2704.

n149. Id.

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The use of cryptography on the Internet is distinguishable from the airport

solicitation in Krishna. The purpose of the Internet and other computer networks

is to carry information. n150 While restricting pan- handlers may be reasonably

related to getting commuters safely through an airport, regulating the only

source of protection on the network will not speed the flow of information. It

may create such weaknesses that users will avoid the networks when transferring

data. n151 Restrictions on the amount and type of private communications an

individual enjoys is antithetical to free and public exchange. n152

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n150. Gordon & McKenzie, supra note 63, at 179.

n151. Bulkeley, supra note 56, at A1.

n152. Id.

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As to the alternate channels, the approach of complete communica tions

integration means that improperly conceived, drafted or imple mented regulations

will result in utter exposure. n153 This underlines the reality that in either

forum, the presence of government regulation places all our communications at

risk. n154

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n153. Id.

n154. See Note, The Message in the Medium: The First Amendment on the

Information Superhighway, 107 Harv. L. Rev. 1062, 1083 (1994) (arguing the case

for uniform treat ment of all telecommunications).

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IV. PRIOR RESTRAINT AND CHILLING EFFECT

Independent of the forum, n155 the least tolerable restrictions on speech occur

when government attempts to prevent the expression of particular ideas. n156

Prior restraints strike at the heart of our First Amendment freedoms. n157

Because encrypted communications are un questionably speech, cryptography

regulations are a form of prior restraint.

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n155. See generally Schenck v. United States, 249 U.S. 47 (1919). In Schenck, a

unani mous Supreme Court held that pamphlets urging recruits to oppose the draft

rose to the level of a "clear and present" danger because of the "character of

the act [and the] circum stances in which it [was] done." Id. at 52.

n156. Grosjean v. American Press Co., 297 U.S. 233, 250 (1936). In Grosjean,

Louisiana enacted a tax on advertising receipts of newspapers. Id. at 234.

Finding this tax to be unconstitutional, the Grosjean Court took the First

Amendment to be a clear rejection of England's historical system of prior

restraints. Id. at 249.

n157. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976). In Nebraska

Press, the Supreme Court struck down an injunction on newspaper publication of a

murderer's confession.

Id. at 562. Although the publication might infringe upon the ability to receive

a fair trial, the Nebraska Press court held that the state would have to show

definite harm to merit an injunction. Id. at 563.

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To prove the necessity of a prior restraint, the state carries a heavy burden.

n158 An informed public is the primary shield against misgovern ment, n159 and

the government must show that the threat to the nation's well-being posed by the

publication of the idea outweighs this safe guard. n160 The indirect connection

between a stream of unreadable ciphertext and a vague threat of a national crime

wave will not support a prior restraint. n161 The government could never carry

this burden.

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n158. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975). Without

actu ally seeing the production, the Chattanooga, Tennessee city council banned

the production of the musical Hair because it contained nudity. Id. at 548-49.

Justice Douglas took the position in his dissent that the Constitution prohibits

all censorship, no matter how brief. Id. at 563 (Douglas J., dissenting).

n159. Grosjean, 297 U.S. at 245-50.

n160. Near v. Minnesota, 283 U.S. 697, 716 (1931) (stating that publishing the

dates and times of military operations would justify a prior restraint).

n161. New York Times v. United States, 403 U.S. 713, 715 (1971) (denying an

injunction where publication would embarrass the executive branch).

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In the only case ever directly upholding a prior restraint, United States v.

Progressive, n162 the District Court for the Western District of Wisconsin

enjoined the publication of a magazine article describing how to build an atomic

bomb. n163 The Progressive court allowed the first prior restraint in this

nation's history after it balanced the risk to the human race against the

magazine's First Amendment rights. n164 The oddity of the Progressive case

suggests that the threat posed by the information must be cataclysmic. n165 The

government interest in cryptography, how ever, is considerably less than the

survival of our species.

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n162. 467 F. Supp. 990 (W.D. Wis. 1979)

n163. Id. at 994.

n164. Id. at 996.

n165. Id. at 995 (noting that the consequence of error with regard to atomic

bombs in volves "life itself").

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While direct regulation is generally unconstitutional, government attempts to

impose self-censorship are also unconstitutional. n166 In New York Times v.

Sullivan, n167 the Supreme Court addressed the issue of self-censorship

"chilling" newspaper reporting. n168 Any errors, even un intentional ones, gave

a plaintiff grounds to sue and win a libel action under the existing libel

standard. n169 Citing a "profound national com mitment" n170 to open,

uninhibited public debate, the Sullivan Court found that a free press could not

operate under such a continual threat of civil action. n171

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n166. Tribe, supra note 97, at 946.

n167. 367 U.S. 254 (1964)

n168. Id.

n169. Id.

n170. Id. at 256.

n171. Id.

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Restricting cryptography will favor eavesdroppers, snoops and thieves to the

point where it will unconstitutionally censor speech. With machine-driven

searches, anyone can continuously scour millions of bits of information. n172 In

Sullivan, the guarantees of the First Amendment mandated that the Court construe

the libel laws to prevent indirect cen sorship. n173 Surveillance technology is

eroding these same guaran tees. n174 If cryptography is to restore the

constitutional balance, it must be free of the dead hand of government

regulation.

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n172. Hotz, supra note 1, at B1.

n173. New York Times, 367 U.S. at 258.

n174. Thomas J. Emerson, The First Amendment in the Year 2000, The Future of Our

Liberties 70-71 (Stephen C. Halpren ed., 1982).

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V. A SOLUTION

The same technology that makes it possible to scan an encyclopedia in seconds

vastly expands the government's power to monitor our speech n175 and threaten

our constitutional freedoms. n176 Law enforce ment agencies fear cryptography

will counter its current advantage or worse, tip the balance in favor of

lawlessness. n177 On the other hand, sophisticated private cryptography is an

inescapable necessity if com puter networks are ever to rise to their potential.

The solution lies in letting these divergent interests compete in the

marketplace.

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n175. Wittes, supra note 78, at 8. In the days of paper mail, "[individuals]

were like little mammals scurrying ... between the legs of the giant dinosaurs.

But now, the government dinosaur has acquired the nervous system of a ferret."

Id.

n176. Lennon, supra note 4, at 467, 467 n.2.

n177. Hotz, supra note 1, at B1.

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A. The Marketplace

A marketplace for any commodity is made up of all the exchanges between

suppliers and consumers. n178 This interaction serves three vital functions in a

society. n179 First, it mediates the conflict between those who have a commodity

and those who want it. n180 Second, the market place allocates limited resources

in an efficient manner. n181 Finally, mar kets provide people with vital

feedback about the decisions they make. n182 When the marketplace is composed of

a large number of suppliers; a large number of consumers; and trades in a

fungible good, it is competi tive and serves its social functions efficiently.

n183 Importantly, competi tive markets develop wherever there is a demand -

with, without, or in spite of government initiatives.

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n178. Robert P. Thomas, Economics: Principals and Applications 86-87 (1990).

n179. Id. at 104.

n180. Id.

n181. Id.

n182. Id.

n183. Thomas, supra note 178, at 101.

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B. The Market for Cryptography

Cryptography systems can take the form of hardware, like semicon ductor chips

imbedded in appliances, or software which runs as a pro gram. n184 Cryptography

software has several advantages over hardware systems. Software is flexible

enough to work with a variety of machines and can respond to an assortment of

user needs. n185 It can be easily in spected to make sure it does what it

claims. n186 Most importantly, since software is cheap to produce and

distribute, sellers can disseminate inno vations quickly. n187 These advantages

mean that software cryptography systems will eclipse hardware systems for the

foreseeable future. n188

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n184. Don't Tell it to the Spartans, supra note 7, at 81. Hardware and software

com bined, the market for cryptography products will reach $ 3 billion by 1999.

Clark, supra note 85, at B12.

n185. Don't Tell it to the Spartans, supra note 7, at 81.

n186. Id.

n187. Id.

n188. Id.

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Similar to the software market, the cryptography market has all the elements to

be a purely competitive market. Every single one of the mil lions of personal

computers around the world is a potential factory. n189 Every computer,

telephone and facsimile machine is a potential con sumer. n190 The rapidly

expanding reach of computer networks means the market for cryptography is vast.

n191 With manufacturers able to jump in and out of the market effortlessly, no

one supplier nor single buyer can substantially influence the market price. n192

There are few distribution problems on computer networks. n193 Further, the

implementation of any one cryptographic program is indistinguishable from any

other and therefore, consumers can change systems without penalty. n194 Conse

quently, the market for software-based cryptography is almost ideally

competitive.

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n189. Boyd, supra note 46, at 48.

n190. Id.

n191. Gordon & McKenzie, supra note 63, at 180.

n192. See Thomas, supra note 178, at 87-88 (noting competitive markets cannot

have significant barriers to entry or exit).

n193. See id. at 148.

n194. See id. at 88 (noting the ability to switch between goods without

significant penalty is essential in a competitive market).

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The appeal of the marketplace solution is its effect on the underlying

commodity, information security. First, open markets allow those who desire

security to obtain it in some form. n195 A large number of producers will

produce a variety of products and distribute them to wide assort ment of

consumers facing different problems all over the world. n196 Sec ond, the

cryptography marketplace efficiently allocates the time and talent which creates

it. n197 Those consumers who desire the most protec tion will hire those

mathematicians and programmers who show the most ability. n198 Government, which

invariably possess more resources than private individuals, can also pursue its

goals. n199 Further, the ease of market entry allows any "weekend programmer" a

chance to innovate and explore for customers in the market.

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n195. Thomas, supra note 178, at 88.

n196. See id. at 149 (emphasizing the importance of technology to suppliers).

n197. Id. at 88-89.

n198. See Boyd, supra note 46, at 52.

n199. Id. Rather than compete against its citizens, the FBI is currently

pursuing an Orwellian scheme to build government access into the nation's phone

network. John Mark off, FBI Wants Advanced Systems to Vastly Increase Wire

Tapping, New York Times, Nov. 2, 1995 at A1.

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Finally, the cryptography market provides manufacturers and con sumers with

information about their decisions. Users send a message through their purchases

to producers about the level of protection they desire. n200 Manufacturers

respond by developing new cryptography prod ucts or by eliminating existing

ones. n201 An uncontrolled cryptography market allows citizens to feel safe,

nurtures innovation and allows for rapid responses to changing threats.

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n200. Thomas, supra note 178, at 101.

n201. Id. at 10.

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C. Flaws in the Marketplace Solution

The marketplace alternative has two potential problems. n202 First, the

currently ideal market may not always maintain its integrity. Sud den changes in

availability of the related hardware, compatibility or in the nature of the

expected threats might leave some consumers danger ously exposed. n203

Unexpected technological breakthroughs or road blocks might drive the less

resourceful producers out of the market and limit the number of options open to

the public. n204 However, shifts in the market are, at least in part, created by

the market n205 and the cryptogra phy industry should be able to absorb

temporary imbalances.

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n202. Id. at 101.

n203. Id. at 181.

n204. Thomas, supra note 178, at 312-13.

n205. Id. at 8-12 (stating markets are the result of scarcity).

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The second problem is whether cryptographic security has evolved from a desire

into a need. n206 The word need suggests that for this re source, there is an

absolute acceptable minimum. n207 If an individual should fall below this level,

society is willing to make a sacrifice in order to restore that level. n208 If

programs which automate cryptographic at tacks, like SATAN, n209 have brought us

to a place where any unencrypted message is essentially open to the public, n210

the question is whether we are willing to make a sacrifice in order to establish

a minimum level of cryptographic protection. The threat forces us to insist that

our banks, our hospitals, and our schools protect themselves in order to protect

us. If its absence directly restricts our ability to express ourselves, cryptog

raphy becomes a necessity and a right.

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n206. Id. at 92-94.

n207. Id. at 92

n208. Id. at 93-94.

n209. Sussman, supra note 47, at 12. Weaknesses in network software appear with

some regularity. See e.g., Netscape Reassures Users Internet Software is Safe,

Wall St. J., Sept. 20, 1995, at B10. SATAN automates the techniques hackers use

to identify and exploit weaknesses in networks. Sussman, supra note 47, at 12.

Other programs such as Lo calPeek, NetMinder and Traffic Watch allow network

managers to eavesdrop at will. Ba card, WWW Page, supra note 59. Wpcrack,

designed to break WordPerfect's encryption system, is available at FTP:

ftp.dsi.unimi.it; login: anonymous; password: e-mail address; directory:

/pub/security/crypt/code, accessed Apr. 28, 1995.

To counter the flaws in its system, Netscape began a policy of rewarding those

users who find bugs. Joan E. Rigdon, Netscape is Putting a Price on the Head of

Any Big Bug Found in Web Browser, Wall St. J., Oct. 11, 1995, at B8. In

addition, Netscape plans to make its software compatible with the United States

government multilevel information security system, code-named Fortezza. U.S.

Cryptography Adopted, Wall St. J., Oct. 11, 1995, at B8; see also, Mykotronx

Announces Award of High Grade Crypto Processor Pro gram, Bus. Wire, Oct. 2,

1995, at 109.

n210. Boyd, supra note 46, at 49.

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V. CONCLUSION

Surveillance technology threatens to eliminate private communica tion in the

near future and to unconstitutionally abridge free speech. Cryptography promises

to provide an inexpensive and adaptable shield against this intrusion. Moreover,

encryption technology gives business the equipment necessary to develop on the

networks. On the other hand, government fears that terrorists and criminals will

exploit this technol ogy, and so seeks to regulate its use. The conflict over

cryptography re quires us to balance our fears against our beliefs.

The solution lies in putting control of cryptography in the market place. The

nature of the market assures that it can produce a variety of affordable and

effective cryptographic systems. Left to itself, this indus try will foster

originality and provide a flexible response to new threats. Structural

inequalities in the cryptography market, which might leave some people

unprotected, have yet to appear. In the digital age, technol ogy infringes on

our ability to communicate and abridges our First Amendment rights. Cryptography

can restore that fundamental privacy and it is an indivisible part of our

freedom.

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