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"The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable
searches and seizures, shall not be violated..."

Constitution of the United States of America, Amendment 4

"No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury...nor shall be compelled
in any criminal case to be a witness against himself..."

Constitution of the United States of America, Amendment 5

"Law enforcement was not supposed to be easy.
Where it is easy, it's called a police state"

Jeff Schiller, executive member of the Internet Engineering Task Force,
and network manager for Massachusetts Institute of Technology

Big Brother probably isn't watching you . . . yet! But they'd like to be! And our techno-challenged Congresscritters just might let them trash the 4th and 5th Amendments . . . unless we speak up!

I can understand law enforcement’s frustration: when our primary means of communication was the telephone, law enforcement could easily wiretap into the conversation, which gave them an easy method to gather evidence against their favorite perpetrators. Unfortunately, it also gave them an opportunity to spy on any citizen without judicial authorization, as long as they had no intention of bringing the information they gathered to trial! Today, however, virtually all of our important communications have moved to the Internet in the form of e-mail, instant messaging, virtual conferencing technologies, and data file transfers; and Voice over IP (VOIP) technologies that have also moved many of our telephone conversations to the Internet as well. All of these new communication technologies can be easily encrypted beyond any reasonable attempt to "open" them, and law enforcement would like to have the same freedom to snoop into our encrypted digital "conversations" and documents as easily as they did our phone conversations. Unfortunately, the way they initially proposed to accomplish this would have required that we place a key into the government's hands that could unlock our encrypted data, and trust them when they said they'd shield the keys from unauthorized access, and always get a court order before they use them! Even worse, where current wiretapping laws cover only telephone communications, the proposed legislation would have expanded law enforcement's ability to snoop far beyond our e-mail and voice conversations, since the new rules they wished to impose would have applied equally to all our encrypted data, including our most private and confidential files.

Since the Internet became popular, and virtually all of our communications moved onto it, tech companies have been developing systems protected by strong encryption, and the U.S. Federal Government has been attempting to find a way to peek into encrypted digital files and communications without having to go to the trouble of obtaining a warrant! The September 11th 2001 terrorist attacks on New York and Washington DC only served to increase the attacks to breach ourr right to encrypt our data free from prying eyes! Not only has the government been trying for years to be given keys or "back doors" that can unlock any file encrypted in the USA, but they hav been urging legislators to give them the right to break into your home without your knowledge before they have any clear evidence of wrong-doing, and modify your PC to disable encryption, so they can spy on you! This effort has recently also extended to our smartphones.

The continued use of strong encryption by common citizens is critical to protect our Constitutional right to secure our private information "against unreasonable searches and seizures" in a future where all of the information once stored as words on a page will become bytes in a digital file readable on a computer or smartphone. The government's attempts to implement Key Escrow and so-called "Encryption Back Doors" strikes at the heart of this Constitutional right! This page presents a brief historical review of government attempts to prevent or subvert our right to encrypt our digital files and communication.

Key Escrow

If the FBI and several security agencies had had their way, no data online anywhere in the USA would have been free from government inspection. Every corporate secret, every medical record, and every Internet transaction would have been open to scrutiny by any policeman or bureaucrat who had access to the keys, regardless of a warrant. Or, even worse, to anyone able to bribe, bully or steal access to the keys!

As we examine the "key escrow" process the feds wanted to impose on us, let's first put the Constitutional issues aside and examine it based solely on its technical merits. It was a fatally flawed system with major vulnerabilities, and for it to serve its intended purpose without violating our rights and jeopardizing our privacy, there were several assumptions the government would have liked us to believe are true that absolutely had to be true for our data to remain secure under the process:

Even worse: even if we assume that the Guardians of the Keys are all righteous men and women of the highest integrity, and immune to bribery, pain, kidnapping, threats directed at their loved ones, or threats from above directed at them, we must also assume that our potential business partners in other countries are not going to be as trusting of our government as we would have to be ourselves! It's unlikely any foreign corporation would have been willing to trust their corporate secrets to the whims of the US government! We should also expect that our competitors overseas would not be forced to operate under the same restrictions. So, what are the chances that foreign interests would have wanted to enter into any kind of business dealings with us that could later be peeked at by our government? Do the words "slim" and "none" come to mind?! And what becomes of our businesses' ability to compete globally as a result?

As you can see, based solely on a technological evaluation, key escrow encryption is fatally flawed.

However, even if the method proposed was completely secure and tamper proof, and the proponents of this policy could guarantee that our overseas competitors would be subjected to the same limitations by their governments, this technology would still be nothing less than an attack on our 4th Amendment right to keep our personal "papers" secure! The fact that the information I'm protecting is being stored in virtual papers kept on a computer hard drive, flash drive, CD, smartphone or on the cloud, instead of actual papers stored in a file cabinet or safe, shouldn't matter. Any thinking person would agree that the intent of the Constitution's framers was to protect the information stored on the page, not the page itself! The medium used to store and transmit the information shouldn't matter. Nor should my right to secure that information from prying eyes be limited or curtailed solely because technological advances have made it harder for government snoops to spy on us! The Constitution may grant the government authority to search, but nowhere does it require that I make it easy for them without a warrant!

Encryption "Back Doors"

Every five years or so, when our Congresscritters think the events of the day have us distracted, so-called "law and order" legislators put forward ideas to force software and hardware makers to build so-called "back doors" into their products that "law enforcement" could use, or mandate the maker to use, that would give them access to encrypted products.

As I write this, there are currently two bills winding their way through Congress that would mandate encryption "Back Doors":

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