From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
As Hal knows, but some newer members of the list may not, I discuss the possibility of a ban on strong (unescrowed) crypto at some, ahem, length in
http://www.law.miami.edu/~froomkin/articles/clipper.htm
Although the article is more than 18 months old, the law hasn't changed in any material way as far as I know.
Bottom line: they probably can't do it under the constitution, but it's a closer call than it should be.
This is a very helpful and thorough analysis. However it does not address the possibility of a ban on the sale/distribution of strong crypto, rather than a ban on its use. There are several reasons why I think the former is more likely: - PRECEDENT FROM ITARS The current bans on export of encryption software limit the distribution of the software itself, not of encrypted messages. Extending this ban to domestic distribution would imply banning distribution but not use of crypto software. - NOT A PRIVACY ISSUE The privacy issues would be much less relevant because it is no longer a matter of just what you do in the privacy of your own home. - OUT OF THEIR OWN MOUTHS The Clinton administration's original veiled warning, quoted in Michael's paper, denied that "every American, as a matter of right, is entitled to an unbreakable commercial encryption product." Noting the use of "commercial" this suggests a ban on sales rather than use. - COMMERCIAL REGULATION Not being a lawyer, I can only speculate that the interstate commerce clause would give more justification for a ban on distribution than on use. - FOOT IN THE DOOR Conceivably such a ban, if successful, would provide new arguments for advancing to the second stage of a ban on usage after some time. The impact of the usage ban would be less due to the lack of access most people would have to such software, and the (arguably) demonstrated effectiveness of the government approved software almost everyone would be using by that time. - BIG BROTHER IS WATCHING We have long speculated that the government's real interest is in making mass surveillance more practical, with the stated concerns about criminals being merely a convenient cover. Commercial restrictions would be consistent with such motives since they would have more impact on the innocent many than the motivated few. A ban on sales and distribution could still be opposed on First Amendment grounds, especially if it becomes established that software is speech. Still there are many restrictions possible on commercial speech so even a favorable precedent in this area would not preclude some regulation of software distribution. We could also argue that such a ban is de facto equivalent to restrictions on use, since most people would not then have access to privacy preserving software. In that case the many excellent arguments which Michael brings forward to oppose such restrictions would be relevant. And what would be the implications for freeware crypto? Could distribution of such software be subject to regulation in the same way as commercial programs? Then there are the issues relating to speech about crypto which are currently being litigated. Presumably domestic restrictions on such speech would have to reach a much higher standard of demonstrated need than restrictions on export. For these reasons I think that domestic regulations on the sales and distribution of strong crypto would not be a sure thing for the government, but would be a lot easier for them than restricting use. This suggests that it is a likely direction for them to take after the next terrorist attack. Hal