Encryption: A 21st Century National Security Dilemma

Abstract

As the 21st century approaches, encryption is presenting a national security dilemma in the US. While the use of strong encryption for computerized data is essential in protecting our nation, widespread, unregulated encryption poses serious problems on two levels: encryption could inhibit the government's ability to enforce the law as well as gather foreign intelligence. As a result, the government has established export controls on encryption products and proposed a 'key recovery' system designed to enable law enforcement officers to access encrypted data in the course of lawful investigations. The export controls have been ineffective and counterproductive policy and are arguably unconstitutional under the First Amendment. However, export controls are the only viable solution to the intelligence gathering problem and will need to survive these political and legal attacks or our national security could be jeopardized. Key recovery will be difficult and costly to implement and has come under attack by civil liberties' groups. Nevertheless, a cost-effective compromise on key recovery is necessary to meet the needs of law enforcement. Such a system, if it mirrored current electronic surveillance law, would effectively balance individual privacy rights and governmental interests and thus should survive constitutional scrutiny. Congress and President Clinton ought to enact key recovery legislation soon before the use of encryption becomes commonplace. A failure to act intelligently and effectively on this critical, cutting-edge issue could compromise our nation's future.