UNIT 5 - Computers and Democracy

(Freedom of Speech Debate)

TABLE OF CONTENTS

CONTENT .......................................................................................................................... 2

1. FREEDOM OF SPEECH ............................................................................................... 2

1.1 FREE THOUGHT .......................................................................................................... 2
1.2 JOHN STUART MILL (1806-1873) ................................................................................ 3

2. CYBERSPACE AND CIVIL LIBERTIES..................................................................... 3

2.1 TECHNOLOGIES THAT SUPPORT FREE EXPRESSION ....................................................... 3
2.2 FACTORS UNDERMINING FREE EXPRESSION ................................................................. 3

3. THE BLUE RIBBON CAMPAIGN FOR ONLINE FREEDOM OF EXPRESSION ... 4

4. PROFESSIONAL RESPONSIBILITY TO SAFEGUARD FREEDOM OF SPEECH. 4

5. CENSORSHIP ................................................................................................................ 5
5.1 THE OFFICIAL SECRETS ACT ....................................................................................... 5
5.2 PLATO AND THE CENSORSHIP OF POETRY .................................................................... 5

6. FREE SPEECH AND CONTENT CONTROL.............................................................. 6

6.1 PORNOGRAPHIC SPEECH ............................................................................................. 7
6.2 HATE SPEECH ............................................................................................................. 7
6.3 ANONYMOUS SPEECH ................................................................................................. 8

7. SIBERIA USA................................................................................................................. 9

8. THE FREEDOM OF SPEECH & HUMAN ADVANCEMENT ................................. 10

9. ENCRYPTION AND DECRYPTION.......................................................................... 12

9.1 DATA ENCRYPTION AND THE FIRST AMENDMENT, PETE DU PONT .............................. 13
9.2 NO RIGHT TO CRYPTOGRAPHY EXPORT? MICHAEL STUTZ ......................................... 15

10. SUMMARY................................................................................................................. 16

BIS2061 1 Unit 5
Content

1. Freedom of Speech
The First Amendment to the U.S. Constitution

‘Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.’

The Human Rights Act Article 10: Freedom of Expression

(1) Everyone has the right of freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without inference by public authority and regardless of frontiers. This Article
shall not prevent States from requiring the licensing of broadcasting, television
or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in
the interests of national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for preventing the disclosure of
information received in confidence, or for maintaining the authority and
impartiality of the judiciary.

Activity 1 – Instances when freedom of speech is subject to restrictions

1.1 Free Thought

Free thought stems from the post-Reformation movement opposed to Christian

dogma. It was represented in Britain in the 17th and 18th century by *deism, (see
below); in the 19th century by the radical thinker Richard Carlile (1790-1843), a
pioneer of free press, and Liberal politicians Charles Bradlaugh and Lord Morley
(1838-1923); and in the 20th century by the philosopher Bertrand Russell.

The tradition is upheld in the United Kingdom by the National Secular Society 1866,
the Free Thinker 1881, the Rationalist Press Association 1899, and the British
Humanist Association 1963.

* Deism: The term usually refers to a movement of religious thought in the 17th and
18th centuries, characterised by the belief in a rational religion of nature as opposed to
the orthodox beliefs of Christianity. Deists believed that God is the source of natural
law but does not intervene directly in the affairs of the world, and that the only
religious duty of humanity is to be virtuous.

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1.2 John Stuart Mill (1806-1873)

The philosopher John Stuart Mill advocated the importance of free speech and open
discussion in his famous essay "On Liberty" (1859). He argued that only by open
discussion could truth emerge, and falsity be revealed. What is more, he insisted that
engagement in discussion encouraged people to think for themselves rather than
simply accept whatever ideas others were promoting.

2. Cyberspace and Civil Liberties

When it comes to cyberspace, technology can both help and hinder civil liberties,
whether in issues of free expression or privacy. It is clear from the discussion below
and elsewhere in this unit that we have the requisite technology to sit practically
anywhere on these issues; what determines where we sit is politics, not technology.

2.1 Technologies that support Free Expression

Technologies that tend to enhance free expression are:

• Electronic mail: The Internet essentially started with electronic mail as its
primary communications medium, and has historically fought hard to keep it
free. By its very nature, electronic mail is extremely hard to censor, especially
simple, point-to-point mail, because of the distributed and robust nature of
routing protocols
• Usenet news is another widespread and difficult to censor technology. One can
censor the users at a particular site by dropping that group, and one can
attempt (often with very limited success) to use cancelbots*, but in general
Netnews is quite hard to control
• The World Wide Web, as a publishing medium par excellence, has gone a
long way towards promoting semi-permanent expression, as opposed to the
ephemera of Netnews and the limited distribution and unsearchability of
electronic mail
• Cryptography has protected free expression in a number of ways, by allowing
people the privacy to express their opinions to some without undesirable
others listening in
• Hand in hand with cryptography is Anonymity, which protects expression by
allowing unpopular opinions to be expressed without fear of retribution

2.2 Factors undermining Free Expression

Some of the factors that tend to limit free expression are:

• Lawyers are a major limiting factor to free expression. This can come about in
many ways; one major way is the tendency to support police entrapment.
Lawyers also work in Congress and tend to pass bills that attempt to control,

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 for example, so-called pornography. They have also been known to help
aggressively pursue trade secret harassment cases for certain religions, as the
Scientologists have shown so well
• Certain Internet technologies, such as Usenet news, have shown themselves
vulnerable to forged cancellation of previously published information. For
example, the use of cancelbots*
• Peer pressure has occasionally been useful at restraining free expression,
though usually it is only applied in large scale to individuals who have
demonstrated that it doesn't work against them, but only their service
providers

*A cancelbot is a program or bot (robot) that sends a message to one or more Usenet
newsgroups to cancel (remove from posting) a certain type of message. It searches for
messages matching a certain pattern, whether it be a duplicate message or offensive
material, and sends out cancels for them. When a message has been cancelled, its
status is changed to "cancel," and the Usenet servers will no longer post them

Now do Review Question 1

3. The Blue Ribbon Campaign for Online Freedom of

Expression
The Electronic Frontier Foundation (EFF) <link to: www.eff.org> and other civil
liberties groups ask that a blue ribbon be displayed to show support for the essential
human right of free speech. They consider free speech to be a fundamental building
block of a free society, affirmed by the U.S. Bill of Rights in 1791, and by the UN
Declaration of Human Rights in 1948. Campaigners argue that legislators and
regulators in the US and around the world would like to dictate what you and your
children may read. The EFF highlights that such decisions belongs in your hands and
those of every other Internet user and parent and not the government. The Blue
Ribbon is a way to raise awareness of online censorship and freedom issues, locally
and globally.

Activity 2 – The Electronic Frontier Foundation (EFF) Philosophy

4. Professional Responsibility to Safeguard Freedom of

Speech
The British Computer Society (BCS) Code of Conduct highlights principal duties
which all members should endeavour to discharge in pursuing their professional lives.
The Freedom of Speech is a basic human right affirmed by the United Nations
Declaration of Human Rights in 1948. Rule 4 of the British Computer Society Code
of Conduct states:

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Rule 4: Members shall in their professional practice have regard to basic human
rights and shall avoid any actions that adversely affect such rights.

As a professional you have a professional duty to safeguard the basic human right to
freedom of speech.

5. Censorship
Censorship is defined as the suppression by authority of material considered immoral,
heretical, subversive, libellous, damaging to state security, or otherwise offensive. It is
generally more stringent under totalitarian or strongly religious regimes, and in
wartime.

The British Government uses the D-notice (a notice to the media prohibiting the
publication of material that is alleged to be of importance to national security) and the
Official Secrets Act to protect itself. Laws relating to obscenity, libel, and blasphemy
act as a form of censorship. The media also exercise a degree of self-censorship.
During the Gulf War 1991, the US military controlled access to the theatre of war -
only certain reporters were allowed in, and their movements were restricted. In the
USA, despite the First Amendment protection of free speech, government agencies
and groups make attempts at censorship. The question is often tested in the courts,
especially with respect to sexually explicit material. Recently, efforts have been made
to suppress certain pieces of music and works of art on such grounds as racial
harassment and social depravity.

5.1 The Official Secrets Act

The Official Secrets Act is an UK act of Parliament 1989. The Act prohibits the
disclosure of confidential material from government sources by employees. It remains
an absolute offence for a member or former member of the security and intelligence
services (or those working closely with them) to disclose information about their
work. There is no public-interest defence, and disclosure of information already in the
public domain is still a crime. Journalists who repeat disclosures may also be
prosecuted.

5.2 Plato and the Censorship of Poetry

The best known of Plato's dialogues The Republic lays before us Plato's visions of the
ideal state. It covers a wide range of topics, including education. If Plato seems very
preoccupied with the moral and theological aspects of the poets it is because it was
from them that the ordinary Greek was expected to acquire his moral and theological
notions. The influence of the environment on growing minds is emphasised by Plato,
in that he calls for a rigid control of music and poetry in education:
‘We must start to educate the mind before training the body. And the first step, as you
know, is always what matters most, particularly when we are dealing with those who
are young and tender. That is the time when they are easily moulded and when any
impression we choose to make leaves a permanent mark. Shall we therefore readily

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allow our children to listen to any stories made up by anyone, and to form opinions
that are for the most part the opposite of those we think they should have when they
grow up? .... Then it seems that our first business is to supervise the production of
stories, and choose only those we think suitable, and reject the rest. We shall persuade
mothers and nurses to tell our chosen stories to their children, and by means of them
to mould their minds and characters which are more important than their bodies at this
stage.’

Carefully selecting the sorts of stories which men ought (or ought not) to hear from
their earliest childhood, would produce citizens who honoured the gods, their parents
and would know how important it was to love one another. Plato continues:
‘It is not only to the poets therefore that we must issue orders requiring them to
portray good character in their poems or not to write at all; we must issue similar
orders to all artists and craftsman, and prevent them form portraying bad character, ill
discipline, meanness and ugliness in pictures of living things, in sculpture,
architecture, or any work of art, and if they are unable to comply they must be
forbidden to practice their art among us. We shall thus prevent our citizens being
brought up among representations of what is evil, and so day by day and little by
little, by grazing widely as it were in an unhealthy pasture, insensibly doing
themselves a cumulative psychological damage that is very serious. We must look for
artists and craftsman capable of perceiving the real nature of what is beautiful, and
then our young men, living as it were in a healthy climate, will benefit because all the
works of art they see and hear influence them for good, like breezes from some
healthy country, insensibly leading them from earliest childhood into close sympathy
and conformity with beauty and reason.’

Consider examples of "speech" which are deemed criminal under federal law: for
example, speech that violates obscenity laws, harassment laws and "hate crimes", and
where individuals utter racial, ethnic, or homophobic slurs in conjunction with the
commission of crimes. Does this type of speech fit with Plato's idea of the "sorts of
stories which men ought to hear from their earliest childhood … to produce citizens
who will show tolerance, respect and love to one another"? Should we consider
uneducated people to be the same as children? Should we influence "the environment"
that has an impact on their impressionable, undeveloped minds? Do we restrict the
right to freedom of speech to include only those educated by Plato's methods, who can
in adulthood distinguish between good and evil works of art?

Now do Review Question 2

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6. Free Speech and Content Control

6.1 Pornographic Speech

(In the following paragraphs the term "speech" can be taken as applying to speech
acts, or to expression in writing or visual images.)

There are two broad classes of such speech:

1 Obscene speech, which is completely unprotected by the First Amendment, and
2 Indecent speech, which is not considered obscene for adults but to which children
under the age of seventeen should not be exposed.

In Miller v. California (1973), the Supreme Court established a three part test to
determine whether or not speech fell in the first category (i.e. was considered obscene
rather than indecent). To meet this test, speech had to satisfy the following conditions:

§ Depict sexual (or excretory) acts explicitly prohibited by state law;

§ Appeal to prurient interests as judged by a reasonable person using community
standards; and
§ Have no serious literary, artistic, social political or scientific value

The depiction of child pornography is a clear example of obscene speech.

The second class of speech, often called indecent speech, is obscene for children but
not for adults. The relevant legal case is Ginsberg v. New York, which upheld New
York's law banning the sale of speech harmful to minors to anyone under the age of
seventeen. The law in dispute in the Ginsberg case defined harmful to minors as
follows:
‘That quality of any description or representation, in whatever form, of nudity, sexual
conduct, sexual excitement, or sado-masochistic abuse, when it:
(1) predominantly appeals to prurient, shameful, or morbid interests of minors, and
(2) is patently offensive to prevailing standards in the adult community as a whole
with what is suitable for minors, and
(3) is utterly without redeeming social importance for minors’

Although state legislatures have applied this case differently to their statutes
prohibiting the sale of obscene material to minors, these criteria can serve as a general
guide to what we classify as Ginsberg speech, which should be off limits to children
under the age of seventeen.

6.2 Hate Speech

The United States not only does not prohibit hate speech, but actively protects it: for
example, the Ku Klux Klan marches on D.C. and American Nazi rallies in Skokie
Illinois. There are, however, related laws in most communities which can apply:
slander, conspiracy, incitement to riot, disturbing the peace, threats, etc. While you
may be able to stand up and say that ethnic group X is composed of thieves and

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criminals, you can get into serious trouble if you name specific members of that race
as thieves and criminals. You may also be in trouble for the following activities:
§ specifically attempting to plan a criminal activity (either in public or private))
§ exciting a crowd and encouraging them to commit acts of violence
§ being too loud or annoying
§ making strong intimations that you will commit violence against members of an
ethnic group.

In other words, you can certainly say hateful things, as long as you don't make any
overt effort to encourage expressions of that hate beyond speech.
Disturbing the peace is a very broad statute in most locations. What may be deemed
intensely offensive by some might not be a cause for concern by others. It is a highly
subjective matter which most laws overcome by including ambiguous clauses like
community standards.

However, caution must be exercised because the distinction between hate speech and
unpopular or unorthodox political opinion is sometimes difficult to make. A rule of
thumb, for example, is that hate speech Web sites are those that attack, insult, and
demean whole segments of the population, such as Jews, African Americans, Whites,
homosexuals, and so forth. Spinello argues that many sites will fall in a nebulous grey
area, and this will call for conscientiousness and discretion on the part of those
charged with labelling those sites.

6.3 Anonymous Speech

Anonymous communication in cyberspace is enabled largely through the use of

anonymous remailers, which strip off the identifying information on an e-mail
message and substitute an anonymous code or a random number. By encrypting a
message and then routing that message through a series of anonymous remailers, a
user can rest assured that his or her message will remain anonymous and confidential.
This process is called chained remailing. The process is effective because none of the
remailers will have the key to read the encrypted message; neither the recipient nor
any remailers (except the first) in the chain can identify the sender. The recipient
cannot connect the sender to the message unless every single remailer in the chain co-
operates. This would assume that each remailer kept a log of their incoming and
outgoing mail, which is highly unlikely.

There are many specific examples in support of the argument that anonymous free
expression deserves protection. Social intolerance may require some individuals to
rely on anonymity to communicate openly about an embarrassing medical condition
or an awkward disability. Whistleblowers may be understandably reluctant to come
forward with valuable information unless they can remain anonymous. Political
dissent, even in democratic societies that prize free speech, may be impeded unless it
can be voiced anonymously. Anonymity then has an incontestable value in the
struggle against repression, and even against the more routine corporate and
government abuses of power. In the conflict in Kosovo, for example, some
individuals relied on anonymous programs (such as anonymizer.com) to describe
atrocities perpetrated against ethnic Albanians. If the Serbians were able to trace the
identity of these individuals their lives would have been in grave danger.

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Anonymous communication, whether facilitated by remailers or by other means, does
of course have drawbacks. Criminals or terrorists seeking to communicate
anonymously to plot their crimes can abuse it. It also permits cowardly users to
communicate without civility, or to libel someone without accountability and with
little likelihood of apprehension by law enforcement authorities. Anonymity can also
be useful for revealing trade secrets or violating other intellectual property laws.

Now do Review Question 3

7. Siberia USA
In the 1970s, in his book The Gulag Archipelago, Aleksandr Solzhenitsyn graphically
portrayed the network of forced labour camps which dotted Siberia and were the last
stop for dissident Russians whose opinions and actions violated politically accepted
state norms.

To Americans already familiar with communist suppression of free speech and free
thought the existence of such detention camps was shocking, although not surprising.
Americans might have been more shocked, however, had they known that some 20
years earlier psychiatrists in their own country had initiated plans to create a similar
political Siberia. In the mid 1950s, on the heels of the McCarthy era, a bill was
introduced to the United States Congress to create just such a Gulag.

The Bill (Human Rights 6376) called for psychiatric facilities to be built in what was
then the relatively unpopulated territory of Alaska. The measure included provisions
for a national commitment procedure, which would have empowered any peace
officer to commit any individual to psychiatric care - without recourse. That person
would then be shipped off to Alaska for confinement and treatment.

Although there were only 325 mental patients in the whole of Alaska, the bill called
for the federal government to grant 1 million acres to the project and to provide an
extraordinary $12 million in funding. As the Brooklyn Tablet described it on March
31, 1956: “The Bill ... makes it possible for the Administration in power to have a
political nuisance transported to the 1,000,000 acres Alaska Mental Insane Asylum. It
legislates that duly accredited officers of any State party to this compact ... shall be
permitted to transport any patient being moved pursuant to this compact through any
and all States party to this compact without interference.”

The Bill came to the attention of Scientologists in 1956, only two years after the
Church of Scientology had been established. By that time, the bill had slipped almost
unnoticed through the House and was on its way to the Senate. Scientologists
responded with a campaign to inform the public of the very real threat to personal
liberties and freedom of speech posed by the measure. If passed, it would have created
a potential “gulag” where political undesirables could be sent and simply forgotten.

The hope of creating this psychiatric slave state was shattered by Scientologists.
Refusing to allow vested interests to destroy the right of every citizen to freely voice

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their opinions without fear of retaliation, they instituted a huge grassroots letter
campaign. This alerted the Senate to public opposition and testimony was presented at
Senate Committee hearings on the Bill. Ultimately, except for granting a small
amount of money to Alaska for the continuing treatment of its few existing mental
patients, the Senate rejected the Siberia Bill and it was never heard of again.

Governance and regulations of the Internet could create a situation where political
undesirables could be refused access. Are we not sending these individuals to a
gulag?

8. The Freedom of Speech & Human Advancement

“A scientist cannot hold back on progress because of fears of what the world will do
with his discoveries”
Julius Robert Oppenheimer - the father of the Atom Bomb and the effective creator of
the deadliest weapon ever used by mankind

History has taught us that the suppression of free speech and free thought can curtail
the speed of human advancement. Often ideas that are non-mainstream and conflict
with orthodox belief are rejected, scorned and silenced. Consider the following
examples:

Astronomy: Galileo Galilei (1564-1642)

The Polish astronomer Nicolas Copernicus (1473-1543) challenged the established
church's view that the Earth was at the centre of the universe. He suggested that
observational evidence showed that the Earth orbited the sun. The dethronement of
the Earth from the centre of the universe caused profound shock. In 1632, the Italian
astronomer and physicist Galileo Galilei (1564-1642), via experimentation, dared to
agree with Copernicus and was hauled up before the Inquisition, the church tribunal to
combat heresy. His subsequent house arrest and recantation were enough to put the
brakes on scientific discovery in Italy for 100 years.

Literature: DH Lawrence (1885-1930)

A young woman's sensual awakening is at the heart of the book, Lady Chatterley's
Lover, which Lawrence called "the most improper novel in the world". The book was
banned for many years for its frank depiction of sex when it was first published in
England in 1960, and was the centre of a sensational obscenity trial held at the Old
Bailey. Yet the author attempted, via the literature, to "urge men and women to live, to
honour the quick of themselves, to glory in the exhilarating terror of this brief life".

Biology: Charles Darwin (1809-1882)

Darwin proposed that all present species were derived from earlier species by the
process of natural selection. Thus all species on Earth are related by descent from
common ancestors. What was hardest to accept, not only by religious fundamentalists
but also by many of Darwin's fellow scientists, was the concept that the path of
evolution has no particular direction toward `higher forms` - humans in particular.
Instead it is determined by the particular circumstances of time and place (i.e. nature
favours particular characteristics under particular environmental conditions). The idea
alarmed Victorian society, and scandalised the church. T.H. Huxley fought the church

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and the religious fundamentalists, and the theory eventually became mainstream and
orthodox.

Philosophy: Socrates (469-399 BC)

Socrates was a Greek philosopher of Athens. Living during the chaos of the
Peloponnesian War, with its erosion of moral values, Socrates felt called upon to
shore up the ethical dimensions of life by the admonition to “know thyself”, and by
the effort to explore the connotations of moral and humanistic terms. According to
Plato, Socrates was tried and put to death for “corrupting the young men and not
believing in the gods of the city”.

Literature: Aleksandr Solzhenitsyn (1918 -)

This Soviet novelist and Nobel prize winner achieved international fame in the early
1960s with the publication of One Day In the Life of Ivan Denisovich, describing life
in a forced labour camp during the Stalin era. He fought in World War II, and was
arrested for writing a letter in which he criticised Stalin. He was imprisoned for eight
years, after which he spent a further three years in a detention camp. The publication
of his book in 1962 produced a political sensation both abroad and in the Soviet
Union, where it inspired a number of other writers to produce accounts of life under
the Stalin regime. Solzhenitsyn provoked official criticism and subsequently had great
difficulty in getting his works published. Many of his manuscripts were confiscated.
He continued to publish illegally in Russia. At a press conference with Western
correspondents, he charged the Soviet government with threats against him and
criticised the Soviet system for curbing the individual freedom of its citizens. He was
exiled from the Soviet Union in 1974.

Art: Impressionism Movement

Realism pioneered by Gustave Courbet (1819-77), was still the main focus of avant-
garde artists in the 19th century. The earlier realists attempted to demonstrate that
ordinary life could be as timeless and monumental as academic history painting could
be. This new group of impressionist artists had grown tired of orthodox suggestions
that realism had to reflect the plight of the poor. There was a whole world out there - a
middle class world of urban scenes, people in real bars and cafes, or picnicking by the
river - which was just as real. At the Salon des Refusés, Edouard Manet's Déjeuner
sur l'herbe caused a public outcry. The 1870s were the great decade of impressionism,
during which the artists produced much of their best work against a backdrop of
hostile criticism and poverty from the art establishment.

Literature: Salman Rushdie (1947- )

This British writer was born in India of a Muslim family. His novel The Satanic
Verses 1988 (the title refers to verses deleted from the Koran) offended many
Muslims with alleged blasphemy. In 1989 the Ayatollah Khomeini of Iran called for
Rushdie and his publishers to be killed. The furore caused by the publication of the
book led to the withdrawal of British diplomats from Iran. In India and elsewhere,
people were killed in demonstrations against the book and Rushdie was forced to go
into hiding.

Cinema: Martin Scorsese (1942-)

Martin Scorsese is a US director, screenwriter, and producer. His films concentrate on
complex characterisation and the themes of alienation and guilt. His works often deal
with the notion of sin and redemption. Amongst his influential, passionate and

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forceful films is the 1988 film The Last Temptation of Christ. The film offended many
Christians with alleged blasphemy by controversially depicting the sexual thoughts
and actions of Christ.

Now do Review Question 4

Now do Review Question 5

9. Encryption and Decryption

Encryption is the conversion of data into a form (called a cipher) that cannot be easily
understood by unauthorised people. Decryption is the process of converting encrypted
data back into its original form, so it can be understood.

The use of encryption/decryption is as old as the art of communication. In wartime, a

cipher, often incorrectly called a "code," can be employed to keep the enemy from
obtaining the contents of transmissions. (Technically, a code is a means of
representing a signal without the intent of keeping it secret; examples are Morse code
and ASCII.) Simple ciphers include the substitution of letters for numbers, the
rotation of letters in the alphabet, and the "scrambling" of voice signals by inverting
the side band frequencies. More complex ciphers work according to sophisticated
computer algorithms that rearrange the data bits in digital signals.

In order to easily recover the contents of an encrypted signal, the correct decryption
"key" is required. The key is an algorithm that "undoes" the work of the encryption
algorithm. Alternatively, a computer can be used in an attempt to "break" the cipher.
The more complex the encryption algorithm, the more difficult it becomes to infiltrate
communications without access to the key.

Encryption/decryption is especially important in wireless communications. This is

because wireless circuits are easier to "tap" than their hard-wired counterparts.
Nevertheless, encryption/decryption is a good idea when carrying out any kind of
sensitive transaction, such as a credit card purchase online, or the discussion of a
company secret between different departments in the organisation. In general, the
stronger the cipher (i.e. the harder it is for unauthorised people to break) the better.
However, as the strength of encryption/decryption increases, so does the cost.

In recent years, a controversy has arisen over so-called "strong encryption". This
refers to ciphers that are essentially unbreakable without the decryption keys. While
most companies and their customers view it as a means of keeping secrets and
minimising fraud, some governments view strong encryption as a potential vehicle by
which terrorists might evade authorities. These governments (including the United
States), want to set up a key escrow arrangement. This means everyone who uses a
cipher would be required to provide the government with a copy of the key.
Decryption keys would be stored in a supposedly secure place, used only by

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authorities, and used only if supported by a court order. Opponents of this scheme
argue that criminals could hack into the key escrow database and illegally obtain,
steal, or alter the keys. Supporters claim that while this is a possibility, implementing
the key escrow scheme would be better than doing nothing to prevent criminals from
freely using encryption/decryption.

79.1 Data Encryption and The First Amendment, Pete du Pont

The microprocessor and the Internet have created an information revolution that is
sweeping the globe. This revolution is putting information once available only to the
media, political and intellectual elite into the kitchens of ordinary people all across
America and opening previously locked cabinets in government, industry and
academe.

In short, the information revolution is empowering people; it is giving them the tools
and the information to make informed choices for themselves. People can more easily
exchange information with one another, buy, sell, discuss and decide among different
options. Already, e-mail exceeds regular mail usage by 10:1. Forrester Research
reports that $8 billion in goods and services were traded over the Internet in 1997; by
2002, 21 million homes will be doing online financial transactions worth $327 billion.
Essential to this commercial and personal communication is security. We want to
know that our information travels safely, without alteration or eavesdropping, and that
there is neither information theft nor identity fraud. Which means that we must
encrypt our data, so that only intended parties can access it.

A glimpse into the future

In the U.S. banking system, for example, just two of the largest fund transfer systems
transmit more than 300,000 electronic fund transfer messages worth $2 trillion every
day. For obvious security reasons, the Treasury Department already requires that all
electronic fund transfers be encrypted. For those of us doing commerce at a somewhat
smaller order, or simply e-mail or information transfers, security is equally
compelling. One of the primary tasks of government is to protect the interests and
property of citizens, and in the information and e-commerce age, enhancing the
encryption of data to ensure its integrity should be one of our government's priorities.

The good news is that encryption technology is galloping forward. What was state of
the art a few years ago is now rear view mirror encryption. Today, 56 bit encryption,
with its 72 trillion combinations, is giving way to 128 bit encryption. A Canadian
company called Jaws Technology has a new technology with 4,096 bit encryption.
Cracking it, its creators say, would require the equivalent of hitting 1,000 consecutive
holes in one on the golf course from a 150-yard tee.

The bad news is that our government is demanding limits on encryption technology
and demanding access to all our encrypted messages -- financial, commercial and
ordinary e-mail. The government's efforts began with the Clipper Chip in 1993. The
Clipper Chip would have required encryption users to submit their encryption keys to
a government database. It met with such a hail of objections from technical and civil
liberties groups that it never came to pass, but the idea lives. The government
currently is seeking both the funding of a huge new encryption technology centre and
the means to access any computer communication individuals might generate.

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The case against limits on encryption
It seems to me that all of this is wrongheaded, that these demands for government
access to our computer transmissions are based on three false assumptions.

§ The government can establish encryption standards. The truth is that encryption
technology is moving too rapidly for statutory law to keep up. For example, the
National Bureau of Standards at one point decided that the nation should have a
single 56 bit key encryption algorithm, an idea almost immediately obsolete as
technology went to 128 bit algorithms and higher
§ The idea that regulation can prevent criminals from acquiring unbreakable
encryption. The analogy here is a familiar one: Does anyone believe that gun
control laws - gun registration or prohibition of ownership, for example - will
keep guns out of the hands of criminals? Similarly, encryption strength ceilings,
key escrow or "trapdoors" in computer programs to allow government access will
limit personal and business usage by citizens and slow criminals not at all. The
international market is too accessible and its encryption offerings equally or more
sophisticated than U.S. technology
§ The idea that such regulations are cost-free to people using computer technology.
Key escrow and trapdoor systems would make encryption for U.S. businesses and
individuals less secure, more vulnerable and more easily broken. Weakening the
encryption security of American users is a not a policy in the national interest.
Forcing information vulnerabilities upon individuals and businesses is weakening
national security, not strengthening it

Most egregious in such encryption regulation is the massive invasion of civil liberties
it represents. The idea that various government agencies, from the FBI to health care
agencies, the IRS and the Justice Department, will have instant access to our Quicken
programs, e-mail and data transmissions is both dangerous and unsettling.

Liberty in the 21st century

It is not as if the government has a good record regarding individual privacy.
President Nixon's FBI tracked its enemies; the Clinton IRS seems to be auditing
unfriendly.

No doubt there is a unique, it-will-never-happen-again exculpatory reason for these

violations of civil liberties. But if the government has the power to intercept and use
your data for its purposes, it will do so sooner or later. That is a truth, and no amount
of reassurance should lead us to believe otherwise.

From Edmund Burke ‘people never give up their liberties but under some delusion’to
Woodrow Wilson ‘the history of liberty is a history of limitations of governmental
power, not the increase of it’, Americans have jealously guarded their freedom. The
next frontier of free speech will be the technology of encryption.

In the 18th century, the First Amendment was essential to guarding free speech.
Protecting the empowering technology of data transmission will be just as essential to
maintaining liberty in the 21st century.

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9.2 No Right to Cryptography Export? Michael Stutz

The Pentagon's top civil servant said that no company has a "God-given right" to
export powerful American data scrambling technology that would allow foreign
nationals to communicate in total secrecy, according to information made public this
week. The then US Deputy Secretary of Defence John Hamre also told Fortune 500
company officials in a speech last week that the government was in talks with
Netscape Communications and other software firms about facilitating law
enforcement access, under court order, to scrambled information sent over the Net.

Hamre addressed the issue of cryptography export controls, long a thorn in the side of
Silicon Valley computer security companies. Industry leaders see the controls, which
strictly limit the export of strong data scrambling software and hardware, as
generating an unfair advantage for overseas competitors. But the Department of
Defence and intelligence agencies like the FBI and the National Security Agency
believe strong cryptography poses a threat to national security because it would
allegedly allow terrorists to communicate in secret.

Software industry leaders counter that such terrorists already have access to strong
encryption that has been developed overseas, ironically, a likely result of the US
policy. Hamre said:
‘I'd also ask American business not to make a campaign out of just trying to bust
through export controls as though somehow there was a God-given, inherent right to
send the strongest encryption to anybody in the world, no matter who they are, I don't
agree with that. I will never agree with that.’

The US government currently forbids the export of products with encryption stronger
than 56 bits unless they have key recovery, a means by which law enforcement, armed
with a court order, could recover the scrambled information. Civil liberties
organisations, such as the Electronic Frontier Foundation, have battled that plan for
years.

US Deputy Secretary of Defence said:

‘I would ask you to step past this debate that we're having on cyber liberties vs. law
enforcement, we're going to have to get to a more sophisticated understanding of this
problem, and we don't have a lot of time. I do not believe that it's more important to
protect ourselves against terrorists if it means it comes at the expense of civil liberties
in the United States.’

Hamre admitted that strong encryption was dangerous but also essential to protecting
the country's communications and enabling commerce and secure transmissions on
the Internet.
‘We have to protect ourselves in this environment and it's got to be with encryption
and some form of security management, key recovery in our case. But we're going to
make it voluntary.... It's something we all have to do, frankly, for the country.’

In helping to build the information security architecture, US Deputy Secretary of

Defence said the government has entered into contracts with a number of technology
firms, including Netscape.

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‘We've entered into contracts with a number of large houses to help us bring that
[voluntary key recovery] architecture. We'll get the first one running this fall with
Netscape, and hopefully, it'll be operational in October.’Netscape was unavailable for
comment. Hamre went on to say that 56-bit encryption was good enough for most
applications.

Earlier this month, the Electronic Frontier Foundation announced it had built a system
for less than US$250,000 that could crack a 56 bit encoded message in fewer than
three days. Despite his reservations about strong cryptography, which could protect
critical systems, Hamre said that the nation is currently wide open to attack
electronically.

He revealed further details of Operation Eligible Receiver, a Defence Department

information warfare exercise conducted last year. The Pentagon hired a team of 30 to
35 crackers to see how far they could penetrate government and critical infrastructure
systems. The hackers worked for three months, using only off the shelf hardware and
software and programs downloaded from what US Deputy Secretary of Defence
characterised as hacker Web sites.
‘We didn't really let them take down the power system in the country, but we made
them prove that they knew how to do it.’he said.

Hamre admitted that the Defence Department is surprisingly vulnerable as well, since
most government communication is now conducted over commercial channels.

10. Summary
This unit has introduced some of the key concepts and issues that are invoked in the
Freedom on Speech debate related to computers and their associated network
technologies. You have been introduced to the debate, which is a classic tug of war
between advocates of limited free speech and supporters of unlimited Freedom of
Speech.

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