Frank Sudia's proposal: Let's revive encryption key escrow

[Steve Schear]

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."
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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.