In "Encryption and the Restoration of National Sovereignty," you said: "No one disputes that unbreakable encryption impairs government ability to intercept suspect communications and issue warrants for stored data. The citizens have gained "unreviewable discretion" to communicate without oversight. They did not have this power before. Now they do." "This was a direct loss of sovereignty by the Government, with a corresponding "gain" by the citizens. Conversely, the restoration of investigative capabilities cannot be considered "taking freedom and liberty from the People," since they never historically possessed this freedom." ======================================================================== The Fourth Amendment was adopted in direct response to the English Parliament's practice of giving colonial revenue officers complete discretion to search for smuggled goods by means of writs of assistance. The writs permitted colonial authorities, including British troops, to enter homes and offices at will and search any person or place they wanted. The early Americans rebelled against these general searches, and on the eve of the Declaration of Independence, Samuel Adams said he regarded the opposition to general searches as "the Commencement of the Controversy between Great Britain and America." It is fair to say that absolute protection from general government searches is one of this country's founding principles. When the framers struck the original balance between personal privacy and the needs of law enforcement, remote listening devices had not yet been invented. But it is clear that had they existed, the framers would not have approved of them. By definition, electronic surveillance constitutes a general search, not a search limited to specific objects, people and places as required by the Fourth Amendment. Wiretapping, bugs, and keys to encrypted messages intrude on the most intimate aspects of human life. They hear/see everything and everyone, indiscriminately. Like vacuum cleaners, they sweep up all the details of innocent and often intimate private conversations. A tap on the phone of one person necessarily captures the conversations of anyone who happens to use that phone or call that number. Unlocking one person's encryption code subjects all who electronically communicate with that person to government surveillance. Even obtaining a court warrant does not fix this problem. Electronic eavesdropping cannot be regulated by a warrant precisely because of its dragnet quality; the object to be seized or the premises to be searched cannot be limited or even specified, because it is in the very nature of the technology to catch everything. In 1927, during the height of federal enforcement of National Alcohol Prohibition, the Court attempted to come to grips with electronic eavesdropping for the first time. Roy Olmstead, a bootlegger convicted entirely on the basis of evidence from wiretaps, argued before the Court that a search had been conducted without a warrant and without probable cause in violation of his Fourth Amendment rights. In a 5-4 opinion, the Court ruled that a physical entry (a "trespass") must be committed before the Fourth Amendment's protection could be invoked. Since the wiretaps were physically placed outside Olmstead's home, the Court reasoned, there was no government intrusion and therefore no Fourth Amendment protection. The Olmstead decision defined the law for forty years, and during that period, the government was able to engage in virtually unrestricted electronic spying. The Olmstead case, by a narrow 5-4 margin, destroyed the original balance of the Fourth Amendment, but it was also the occasion for Justice Louis D. Brandeis' prescient dissent in which he warned that, "The progress of science in furnishing the government with means of espionage is not likely to stop with wire-tapping." Brandeis wrote that because wiretaps indiscriminately pick up every conversation within their reach, they constitute the kind of general search prohibited outright by the Fourth Amendment, and that even a warrant requirement would not give sufficient protection. Unfortunately for our privacy rights, Brandeis' dissent has never been adopted by the Court, although it did overrule its Olmstead decision in 1967 when it belatedly recognized that the Fourth Amendment applied to wiretapping and electronic spying (Katz v. U.S.). Nonetheless, Justice Brandeis' account of the framer's intentions is right on the mark: "The makers of our Constitution...sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred as against the Government, the right to be let alone -- the most comprehensive of the rights of man and the right most valued by civilized men." Cryptography can help shift the balance of the Fourth Amendment back to what the framers originally intended. And that is what the FBI is against. The government's own records show that electronic surveillance is of marginal utility in preventing or solving serious crimes. It did not, for example, stop or lead to the apprehension of the Unabomber, Timothy McVeigh, or the first World Trade Center bombers. Those crimes were solved by good detective work. Serious crimes of violence, including terrorist crimes, are almost never the targets of electronic surveillance. Electronic surveillance does, however, lead to violations of the privacy rights of vast numbers of innocent Americans. According to the government's own statistics, 2.2 million conversations were intercepted in 1996, of which 1.7 million were deemed innocent by prosecutors. Electronic surveillance is absolutely inconsistent with a free society. Free citizens must have the ability to conduct instantaneous, direct, spontaneous and private communication using whatever technology is available. Without the assurance that private communications are, indeed, private, habits based upon fear and insecurity will gradually replace habits of freedom.