Miami Herald, page 23A, Friday, June 12, 1998

A. Michael Froomkin is an associate professor of law at the University of Miami, specializing in the legal issues involving encryption and electronic commerce.

President Clinton's announcement that the FBI and Justice Department will become the federal government's lead agencies for fashioning policies on and "policing" cyberspace ought to concern all who are interested in communications and the privacy of data.

If one thing has been clear in the last few years, it is that the prospect of people confidentially talking on the telephone or sending e-mail messages has some people at the FBI very worried.

Advances in mathematics and microchip technology make the encryption of e-mail and stored data cheap, often free, and increasingly easy; telephone encryption is not as easy or available, but it is rapidly improving. Though often available over the Internet, these programs are so powerful that their export is banned and punishable by jail and huge fines. It is legal to send coded messages abroad but not to send along the means to encode or decode messages.

There are not, and never have been, limits on the domestic peacetime use, sale, or production of cryptography in the United States. What is new is that encryption technology is making it easier to exercise the right to secure communication.

A recent report by the National Research Council warned that much of this country's communications infrastructure is vulnerable to foreign and domestic hackers and saboteurs because encryption is not widely used. With the streamlining of encryption, much of the nation's financial system and other industries could be made more secure.

Rather than joyfully greet these developments, the FBI's approach has been to propose that every encryption product guarantee government access. Otherwise, warns FBI Director Louis Freeh, ubiquitous encryption will mean that court-authorized telephone wiretaps or orders to turn over e-mail will be useless, because the information obtained will be meaningless gibberish.

The FBI's proposals unconstitutionally infringe on the right to speak anonymously, a right reaffirmed recently by the Supreme Court. Encryption provides the only tools that make it possible for a person sending an e-mail to ensure that it will remain untraceable.

Legal arguments aside, there is a fundamental moral issue as to whether we accept that people, even bad people, are allowed to communicate privately. Encryption should be encouraged not only because it helps to keep messages private and enables anonymous political speech, but also because it will allow consumers to establish verifiable, credit-worthy, and enduring on-line identities. They can then communicate and do business without attracting junk mail or becoming part of a marketer's database.

Freeh may be right to worry about the widespread availability of encryption if the FBI is indeed dependent on wiretaps. We may need to compensate by training and equipping our police to find alternate means of "cracking" cases. The solution to the crime problem is not to deny people full access to reliable tools that ensure that their communications and data remain private.

Unwillingness to tolerate totally private communication would be a sign that our fears are growing at a time when threats are, overall, being reduced. The same advances of information-processing power that make the new cryptography possible also have increased vastly the power of the FBI, and the private sector, to amass large databases profiling people. Some of these databases contain fingerprints, employment records, credit histories, and other personal details.

Also, modern life leaves a detailed audit trail of credit-card receipts and Social Security-numbered records, not to mention telephone-call records and photographs captured by proliferating public-surveillance cameras. Encrypted communication offers the opportunity to create small islands of privacy in a sea of increasingly public data.

Just as the government has no place requiring that I make it easy for it to peek into my bedroom if I close the door and draw the curtains, it has no place demanding that I give it the capability to read encrypted messages that I send to my wife.