Cyber eye: Could encrypted speech be threatened?

William Jackson

When someone says, 'It's not about the money,' you can be fairly sure it's about the money.

So when Rep. Sheila Jackson Lee (D-Texas) began a statement by protesting that she is second to none in her support for the First Amendment, I wondered whether it was really at the top of her agenda.

Jackson Lee made the comment during a hearing of the Select Homeland Security Subcommittee on Cybersecurity, Science, and Research and Development. She questioned security guru Bruce Schneier about whether terrorist plotters could use encryption for confidential communications.

Schneier, chief technology officer of Counterpane Internet Security Inc. of Cupertino, Calif., answered that encryption can be used for good or evil like any other tool. He said he didn't believe restricting its use would effectively boost U.S. security.

Jackson Lee replied that, as much as she supported the First Amendment, she couldn't help but think that extra security might be needed.

The congresswoman's office did not respond to a request for clarification, but it sounded as if she was contemplating restriction of encrypted communications.

The battle over public use of strong encryption was fought and won in the last decade of the 20th century. The government surrendered for two reasons: First, the benefits far outweigh the risks; and second, the government had already lost control of encryption technology. Those reasons still stand.

The public demands privacy as a matter of principle and as a necessary element in electronic service delivery. Strong encryption makes possible online transactions and protects data stored and accessed electronically. Sen. Dianne Feinstein (D-Calif.) acknowledged the value of such protection in her recent bill, S 1350, modeled on a California law requiring notification of individuals whose personal data is hacked. Both pieces of legislation exclude encrypted data.

As a practical matter, technology banned or restricted here can be developed elsewhere and used anywhere.

Some legislators want stronger penalties for persons convicted of using encryption to commit crime.

Cryptography is a valid and valuable tool. At the risk of sounding like the National Rifle Association, I believe that criminalizing tools has proved an ineffective way to fight crime.

About the Author

William Jackson is freelance writer and the author of the CyberEye blog.

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