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IP: Data Encryption and the First Amendment: Pete duPont

Hey *I* want some of the 4096 bit encryption!


Bob Hettinga

"My coun-try 'tis of thee, land of plu-to-cracy..."
Forbes/duPont 2000 ;-).

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Source:  Intellectual Capital

 Data Encryption and the First Amendment
 by Pete du Pont
 October 22, 1998

 The microprocessor and the Internet have created an
 information revolution that is sweeping the globe.
 This revolution is putting information once available
 only to the media, political and intellectual elite into
 the kitchens of ordinary people all across America
 and opening previously locked cabinets in
 government, industry and academe.

 In short, the information revolution is empowering
 people; it is giving them the tools and the information to make informed
 choices for themselves. People can more easily exchange information
 with one another -- buy, sell, discuss and decide among different

 Already, e-mail exceeds regular mail usage by 10-to-1. Forrester
 Research reports that $8 billion in goods and services were traded
 over the Internet in 1997; by 2002, 21 million homes will be doing
 online financial transactions worth $327 billion.

 Essential to this commercial and personal communication is security.
 We want to know that our information travels safely, without alteration
 or eavesdropping, and that there is neither information theft nor identity
 fraud. Which means that we must encrypt our data, so that only
 intended parties can access it.

 A glimpse into the future

 In the U.S. banking system, for example, just two of the largest
 fund-transfer systems transmit more than 300,000 electronic
 fund-transfer messages worth $2 trillion every day. For obvious
 security reasons, the Treasury Department already requires that all
 electronic fund transfers be encrypted.

 For those of us doing commerce at a somewhat smaller order, or
 simply e-mail or information transfers, security is equally compelling.
 One of the primary tasks of government is to protect the interests and
 property of citizens, and in the information and e-commerce age,
 enhancing the encryption of data to ensure its integrity should be one
 of our government's priorities.

 The good news is that encryption technology is galloping forward.
 What was state of the art a few years ago is now rearview-mirror
 encryption. Today, 56-bit encryption, with its 72 trillion combinations, is
 giving way to 128-bit encryption. A Canadian company called Jaws
 Technology has a new technology with 4,096-bit encryption. Cracking
 it, its creators say, would require the equivalent of hitting 1,000
 consecutive holes in one on the golf course from a 150-yard tee.

 The bad news is that our government is demanding limits on
 encryption technology and demanding access to all our encrypted
 messages -- financial, commercial and ordinary e-mail.

 The government's efforts began with the Clipper chip in 1993. The
 Clipper chip would have required encryption users to submit their
 encryption keys to a government database. It met with such a hail of
 objections from technical and civil liberties groups that it never came to
 pass, but the idea lives. The government currently is seeking both the
 funding of a huge new encryption technology center and the means to
 access any computer communication individuals might generate.

 The case against limits on encryption

 It seems to me that all of this is wrongheaded, that these demands for
 government access to our computer transmissions are based on three
 false assumptions.

The first is that government can legislate encryption standards. The
 truth is that encryption technology is moving too rapidly for statutory law
 to keep up. For example, the National Bureau of Standards at one
 point decided that the nation should have a single 56-bit key encryption
 algorithm, an idea almost immediately obsolete as technology went to
 128-bit algorithms and higher.

 Second is the idea that regulation can prevent criminals from acquiring
 unbreakable encryption. The analogy here is a familiar one: Does
 anyone believe that gun-control laws -- gun registration or prohibition of
 ownership, for example -- will keep guns out of the hands of criminals?

 Similarly, encryption-strength ceilings, key escrow or "trapdoors" in
 computer programs to allow government access will limit personal and
 business usage by citizens and slow criminals not at all. The
 international market is too accessible and its encryption offerings
 equally or more sophisticated than U.S. technology.

 Third is the idea that such regulations are cost-free to people using
 computer technology. Key escrow and trapdoor systems would make
 encryption for U.S. businesses and individuals less secure, more
 vulnerable and more easily broken. Weakening the encryption security
 of American users is a not a policy in the national interest. Forcing
 information vulnerabilities upon individuals and businesses is
 weakening national security, not strengthening it.

 Most egregious in such encryption regulation is the massive invasion
 of civil liberties it represents. The idea that various government
 agencies, from the FBI to health-care agencies, the IRS and the
 Justice Department, will have instant access to our Quicken programs,
 e-mail and data transmissions is both dangerous and unsettling.

 Liberty in the 21st century

 It is not as if the government has a good record regarding individual
 privacy. President Nixon's FBI tracked its enemies; the Clinton IRS
 seems to be auditing unfriendly 501(c)(3)s; and some 800 FBI files
 mysteriously found their way to Craig Livingstone's pizza-and-beer

 No doubt there is a unique, it-will-never-happen-again exculpatory
 reason for these violations of civil liberties. But if the government has
 the power to intercept and use your data for its purposes, it will do so
 sooner or later. That is a truth, and no amount of reassurance should
 lead us to believe otherwise.

 From Edmund Burke ("people never give up their liberties but under
 some delusion") to Woodrow Wilson ("the history of liberty is a history
 of limitations of governmental power, not the increase of it"),
 Americans have jealously guarded their freedom. The next frontier of
 free speech will be the technology of encryption.

 In the 18th century, the First Amendment was essential to guarding free
 speech. Protecting the empowering technology of data transmission
 will be just as essential to maintaining liberty in the 21st century.

 Pete du Pont is the editor of IntellectualCapital.com. He is a former
 governor and congressman from Delaware. His e-mail address is
 [email protected]
NOTE: In accordance with Title 17 U.S.C. section 107, this material is
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Robert A. Hettinga <mailto: [email protected]>
Philodox Financial Technology Evangelism <http://www.philodox.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'