Anonymous speech has proud rootsstretching to the origins of America. Gentlemen callingthemselves "Publius" wrote the Federalist Papers. ThomasPaine's Common Sense was signed by "An Englishman." Today,computer programs that allow us to encrypt emails-to scramble themsuch that only the intended "key-holding" recipient can decipherthe message-represent perhaps the newest incarnation of the oldtradition of speaking both freely and anonymously.
But encryption technology in the hands of people bent ondestruction can be deadly. Some believe the terrorists who attackedAmerica organized via encrypted messages. Fear of this indisputablethreat led to Sen. JuddGregg's (R-N.H.) new proposal to give government a "back doorkey" to encryption products. Similarly, calls for a national IDcard exemplify new urges to shine a federal light on unknownindividuals.
But government's job is to restrict the liberty of dangerouscriminals and enemies-not to restrict the liberties of innocentcitizens, or to treat everyone like a suspect. Proposed Houseantiterrorism legislation, the PATRIOT("Provide Appropriate Tools Required to Intercept and ObstructTerrorism") Act, and the Senate's USA Act, both seeka new law enforcement infrastructure that could be tapped tobolster surveillance of non-terrorists. For example, theperpetrators of victimless crimes-the pot smoker or gambler-mayfind themselves under renewed scrutiny, but such is clearly beyondthe stated intent of combating terrorism. New powers should applyonly to terrorism, not to routine criminal investigations.
While surveillance can and likely will be enhanced to accountfor the new realities of instant electronic communications, theFourth Amendment's protections against unreasonable and warrantless searches need not suffer. For example, securing wiretaps foran individual, rather than separate ones for each phone, can makesense if requirements that judges approve wiretap requests areenhanced too.
But proposals to re-regulate encryption, which could be added toPatriot-style legislation, are the digital equivalent of seizinggrandma's nail clippers at the airport-in the sense that terroristswould simply resort to illegal encryption. Congress debatedencryption restrictions in the mid-1990s, and decided that thebenefits of readily availableaccess to the technology outweigh the costs. Like proposals tomandate that everyone carry a national IDcard, it's a needless undermining of anonymity and privacy.
It's important to remember that the root of the terrorist threatAmerica faces does not lie entirely in cyberspace. Given thepotential for weakening civil liberties often taken for granted,addressing shortcomings in America's existing national securitypractices is at least as important as legislation broadeningsurveillance techniques and lowering legal barriers to theiruse.
Much went awry along a complex chain of events that resulted infour sets of hijackers slipping though security and commandeeringplanes from three different airports. Many warning signs wentunheeded, and many sensible precautions were ignored. Slipups haveincluded individuals working in airport security roles withoutthorough background checks; evidence of inside jobs (such as knivespre-planted on airplanes); knowledge that individuals underobservation were undergoing flight training at U.S. schools;warnings years ago of hijack/bombing schemes; and a lapsedsky-marshal program.
In that light, fighting encryption is a misplaced priority.Despite the intense Internet privacy debate of recent years, thereal dispute isn't whether privacy is achievable-it's whethergovernment will allow it where the capability finally exists.Encryption is essential not just for keeping intact a pure versionof the principle of free speech, but for such "mundane" needs asprivate communication, secure commerce and business-to-businessexchange. We rely on encryption when entering our credit cardnumbers on Web sites. Restrictions would damage the security ofAmerica's financial systems, making it easier for the everydayhacker, let alone terrorist, to invade personal information andtinker with the financial infrastructure itself. Encryption couldultimately form the basis fordigital money.
One of the imperatives in combating terrorism is to securesensitive and critical systems from attack. Since encryptionhappens to be essential for companies and individuals to protectthemselves, misguided legislation undermining it hampers sensible,private security measures. It also undercuts broader efforts by thegovernment to protect "critical infrastructure." As cryptographylegend Whitfield Diffie told the New York Times, "Attempts to control the useof cryptography and other security measures will make thedevelopment of improved command and control networks more difficultand may impede this task by limiting the people who can contributeto approved government and contractor personnel."
The encryption genie is out of the bottle. Not only canmalevolent programmers create their own strings of ones and zeroscapable of encrypting communications, so can legitimate companiesoverseas. And requiring the deposit of an encryption "key" at acentral governmental location creates a "honey pot" for hackers toattack, reducing our security. Encryption legislation todeliberately reduce our privacy would have been unthinkable onlyrecently given widespread concerns over privacy. As Rep. BobGoodlatte (R-Va.) pointed out, we need more encryption, not less.
Encryption also protects intellectual property, upon which anincreasing share of America's wealth creation depends. Digitizationinvites piracy, as the Napster episode demonstrated. New encryptiontechniques are critical to future digital distribution of books,movies and music. While no fan of entertainment company efforts tolock up their content, Columbia University professor Eben Moglen noted that back door access that weakensthe ability for creators to profit from intellectual works is arisk.
Moreover, encryption plays a key role in the struggle for humanliberty itself. It has aided political dissidents shieldingthemselves from brutal governments, helping democracy andindividual liberty flourish overseas. Surely it's preferable thatterrorists are forced to change their behavior, while we retain ouropenness, and freedoms of mobility and interaction. Regulatingencryption could encumber us far more than the terrorists, who canstill encrypt as well as use other means of communication.Terrorists can use face-to-face contact, human messengers, composemessages in free email accounts (perhaps sharing a password insteadof sending the message), or conceal messages in pictures and otherfiles. As one researcher noted, "From a terrorist point of view,the fact that you are using encryption at all will draw attention."Encryption may not be essential for terror, but it is essential forour advanced economy.
We've always been counseled not to make important decisions inthe heat of the moment. Privacy's importance to Americans and thethreat to our Bill of Rights that surveillance, anti-encryption,and ID legislation can pose are plain. Congress is a deliberativebody that must carefully weigh permanent changes impacting hard-wonrights to anonymity and privacy. At the least, sunsetting theprovisions of anti-terrorist legislation that have implications forcivil liberties is sensible. The Patriot Act and relatedlegislation must embody the patriotic values intended.