Encryption Technology And First Amendment Rights

Abstract

The predicated enormous boom in electronic commerce will only flower when users are assured that their electronic transmissions are secure. To assure this security, encryption technology must be powerful and difficult to decipher. Unfortunately, for electronic visionaries, U.S. law prevents powerful encryption programs from being exported, posted on the Internet, or otherwise communicated to persons who might take the technology outside our borders, unless an export license is first obtained. Such license will be denied unless the key link is less than a weak 56 bits and the potential exporter places a key to perform encryption of the program in escrow for the government. The government seeks to justify this restraint on export by raising national security concerns that terrorists or foreign military forces will adopt the encryption systems. This licensing requirement, however, is viewed as an unacceptable burden on electronic commerce by both developers and potential domestic and foreign users of sophisticated encryption technology. This article discusses a precedent setting recent case that attempted to reconcile the conflicting encryption technology interests of scientists, scholars, users, and the government. The court wisely balanced the competing interests and decided that, while the government can regulate the export of encryption technology, it must do so within the bounds of the scientist and scholar’s First Amendment rights of teaching, discussion, and expression.