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.What Is Possible?Cryptography, once an arcane art, is now inseparable from mainstream computing technology.Cryptographic equipment is neither difficult to build nor demanding in its computing requirements.Any attempt to control the deployment of cryptography must contend with this fact.Attempting tocontrol cryptography is more like the notoriously unsuccessful attempt to outlaw alcohol than it islike the control of guns, the manufacture of which is beyond the capabilities of the typical homeshop.Furthermore, antisocial uses of cryptography are less demanding than socially beneficial uses.A groupof conspirators trying to rob a bank, blow up a building, or commit fraud is typically small, rarely morethan a dozen people.On the other hand, the use of cryptography in electronic commerce will requireproviding millions of people with interoperable cryptographic devices and a steady supply ofsupporting electronic credentials.In short, the latter is probably controllable; the former probably isnot.In pursuing policies that limit the use of cryptography for business purposes, out of fear that it willbe used for criminal ones, we deny ourselves one benefit without achieving the other.It has been argued that it is important to prevent the ubiquitous use of cryptography in order not tolose the ability to monitor communications between criminals and non-criminals.Arranging anysubstantial crime, from a bank heist to a bombing, is likely to entail commonplace actions such as renting cars, booking hotel rooms, or buying airplane tickets.If the police can monitor the phonecalls in which criminals transact the ordinary part of their business, they will have a very good idea ofwhat the criminals are up to, even if all the calls from criminal to criminal are encrypted.On the otherhand, since the signaling information will tell the police what legitimate businesses the suspects arecalling, the police will be able to approach the businesses and make enquiries.Another area in which cryptography is said to be interfering with police work is the protection ofstored data.One view holds that searches and seizures of computer media are far more important topolice than wiretaps, and that cryptography may make them ineffective.The precise importance ofseized computer media is hard to judge.The FBI has a central laboratory for processing those thatcannot be adequately examined by field offices.25 This lab handled about 400 cases in 1994, ofwhich it estimated that 2% involved cryptography.This does not mean that the FBI was unable toread the files; in any case, it is probably a generous estimate that counts anything that could possiblybe called cryptography.26The protection of storage particularly as it might be applied to protecting the records of a criminalgroup appears to be a less complex phenomenon than the protection of communications.In theformer case the decrypting can be done by the person who did the encrypting, reducing problems ofkey management.In view of the fact that the desire to protect the information in readily stealablelaptop computers provides widespread motivation to use encrypted storage, it appears unlikely that anylaw would be effective in preventing the encryption of stored data in non-escrowed systems.It is also appropriate to ask what is legally sustainable.The Constitution has a strong principle offreedom of speech that is generally interpreted as encompassing the freedom to write and publish.Itis the US government's current position that publication of programs on the Internet is not protectedfree speech and can legitimately be regulated as export.This view has been challenged by themathematician Daniel Bernstein, who has asserted a free-speech right to publish the code of acryptographic algorithm electronically.Bernstein has won the first round.In June 1996, US DistrictCourt Judge Marilyn Hall Patel ruled that computer programs are a form of speech and thus subjectto First Amendment protection.27 In a stinging opinion issued later that year (Daniel Bernstein v.United States Department of State, 945 F.Supp.1279.(N.D.Cal.1996)), Patel held that thegovernment's action was an unconstitutional prior restraint on free speech, but the issue will not beeffectively decided until the case makes its way to the Supreme Court.28 If free speech prevails,export control may be entirely bypassed [ Pobierz całość w formacie PDF ]