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The technological evolution that has made it possible for widespread communication among individuals and groups all over the world has also resulted in an increased use of networked communication for a host of activities. This suggests that more information about more people will be stored in network-accessible systems and communicated more broadly and frequently. Since the Internet is a decentralized network that was not specifically designed with security in mind - communication on the Internet is a lot like sending on-line postcards in which anyone can read the message between sender and receiver - questions about security therefore emerge, since many individuals and organizations are concerned that the privacy, ease and integrity of Internet communication be preserved. Encryption technology makes this possible. Encryption is the process of encoding, or scrambling, the contents of any data or voice communication with an algorithm, known as a "key." Only the intended recipient of the communication, who is in possession of the key, can decipher and access the information. Because the key itself is simply a string of numbers, the longer the key, the stronger the security. For every number that is added to the key, more possible combinations are created. Essentially, then, encryption tools are the locks and keys of the Information Age that enable individuals and groups to protect sensitive information as it is sent over the Internet.
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Chapter 1
Chapter 2
Chapter 3
Chapter 4
Chapter 5
Chapter 6
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Unfortunately, certain governments have attempted to access private and encrypted information communicated via the Internet. In spite of explicit protection of privacy in international treaties/documents (for example, Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights,) this right is being infringed upon, with serious consequences for the free and unhindered flow of information. Government initiatives against encryption technology are rooted primarily in a desire to counter criminal and terrorist activity. Following such events as the bombings in Oklahoma in 1995 and at the 1996 Atlanta Olympics, governments have called for restrictions on information that can be related to terrorism. For example, in 1995, the G7 group of nations, which met in Paris to discuss terrorism, endorsed several controls on the Internet. Among the measures was the imposition of a "key escrow" system, in which the keys required to gain access to encrypted communications or records are deposited with a third party. The G7, in effect, called for a way by governments to read all messages sent by alleged terrorists. In order to do this, however, governments must be able to read messages sent by anyone on the Internet. In other words, the privacy and integrity of all communications would be compromised in the fight against terrorism. The shortcomings of the fight against terrorist activity on the Internet are many and well-known. The allegedly offensive material targeted by authorities, such as information on how to make bombs, is readily available in libraries and bookstores; to hunt down and eliminate such information on the Internet will not reduce its availability. Furthermore, privacy and free speech advocates assert, since this on-line information is no different from printed material - which itself is legal and cannot be censored - then it, too, ought to be held in the same light. Still, governments persist in their attempts to crack down on terrorism and, by extension, encryption. The United States has probably been the most persistent. Taking advantage of anti- terrorist hysteria during the past few years, the U.S. government has introduced legislation infringing on privacy and free speech rights in an effort to crack down on encryption technology on two fronts: its use and strength domestically as well as its export to other countries. The government's initiative first gained prominence with the so-called Clipper Chip, which was to be built into communications hardware and would have enabled authorities to obtain the keys to decrypt private communications; that is to say, to eavesdrop, when deemed appropriate. The original Clipper Chip proposal went through several revisions, each of them unpopular and accompanied by widespread opposition from the public. Nevertheless, the Federal Bureau of Investigation (FBI) recently acknowledged that it had sought amendments to encryption legislation to eliminate safeguards to the privacy of electronic communications. It also acknowledged that it is seeking to build "trap doors" into encryption tools as well as the authority to force ISPs, telephone companies and other network operators to provide immediate decryption ability for any messages that pass through their private systems. Under the FBI's plan, neither the ISP nor the agency would give prior notice to individuals that their encrypted messages were being intercepted and read. The U.S. has also limited the export of encryption technology, treating it as an armament to be controlled by the government. However, an August 1997 Federal Court decision proved groundbreaking in terms of encryption, privacy and free expression, for it declared unconstitutional the Commerce Department's export restrictions on the technology. The presiding judge ordered the government not to prosecute or harass the plaintiff, a university professor, and anyone in the world who reads, uses or publishes his encryption software. Significantly, the judge also ruled that the export restrictions constituted prior restraint of the plaintiff's publishing of scientific papers, algorithms and computer programs. That is to say, in terms of the U.S. Constitution, the government's measures violated the free speech guarantees in the First Amendment. Following the decision of the court, encrypted messages and computer programs, among other material, are therefore deemed to be text written in a "high-level" language - a form of language closer syntactically and semantically to natural languages like English and French rather than a language that simply directs the functioning of the computer. While what is termed "object code" is designed specifically to be read and interpreted by computers, this high-level language, or "source code" (encryption,) is designed to communicate the ideas expressed by programming languages to human readers. Thus, encryption itself was judged to be a form of speech on par with languages used to write any other literary works, and is to be accorded full protection under the First Amendment. Any attempt to limit its use or circulation - to invoke prior restraint - therefore constitutes a form of censorship. Encryption is indeed a communications tool that has proven invaluable to many individuals and groups. One can think of the work of human rights organizations and individuals and groups living under repressive regimes who manage to send important information to the outside world - information that otherwise might not be able to get out intact, or at all. However, by sending encrypted messages, these groups and individuals can often unwittingly draw the attention of authorities who would suspect that what is being sent is sensitive information that violates, for example, national security. Ironically, encryption, which seeks to preserve free and unhindered speech, could lead to a crackdown on free speech by signalling to authorities that dissident speech is occurring on the Internet. Generally speaking, however, as long as encryption remains free from government interference and regulation, and as long as people are completely free to choose whether or not they wish to take advantage of the technology, encryption can be instrumental in ensuring both the privacy rights of individuals and the free and unhindered flow of information on the Internet. |
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