What to prepare for You will write a memo (at most 3 pages long) supporting the testimony of an important ACLU official before a committee of the U.S.~Congress. Your memo will outline an attack of the controls on crytptography that exist and on those that are proposed. The web page {\tt http://www.aclu.org/issues/cyber/hmcl.html} should be your primary source. Various links can be followed from it (see, e.g., below). You may further choose to emphasize some of the items below but don't be limited by them.
In your oral rebuttal
Be prepared to deal with arguments about criminals and
terrorists, about economic pressures, and arguments about dealing with
countries whose traditional ``freedoms'' relative to wiretapping,
etc., are perhaps less comprehensive than our own. How would you deal
with the question of whether suspected pornographers should be
required to decrypt their files after satisfactory court action? There
has been considerable debate about such matters in the U.S.~and other
countries.
The ACLU stands firmly for the free expression of ideas and broad dissemination of information throughout the Internet. Attempts to censor such information are clearly unconstitutional and will face strong opposition. One example of such an attempt at censorship is the case of Curzon-Brown v. San Francisco Community College District, where a professor is attempting to have an internet site censored for posting negative remarks about his teaching methods. Such an action would be clearly unconstitutional, overstepping citizen's rights to freely express their opinions on different subjects. Actually, this site represents an excellent example of the circulation of useful information.
Another example of censorship would be in the "Child Online Protection Act," which would censor Internet sites with information on them considered to be harmful to minors. It claims to only affect commercial pornography over the internet, but in practice its effects would be far more reaching. It would adversely affect things such as sexual health sites, and it would also censor sites that may be harmful to minors but beneficial to adults. In addition, it bears the characteristic of not being completely effective, because it would pose no protection from foreign web sites. The usage of blocking software voluntarily would be a more acceptable tool, for it could block sites an individual feels are harmful, but would not prevent them from accessing other possibly beneficial sites on similar topics.
On January 20, 2000, a federal judge granted a preliminary injunction against people who have distributed a program called DeCSS on their web pages. DeCSS breaks the encryption on DVD movies, allowing them to be viewed on computers running operating systems other than Microsoft's Windows and Apple's MacOS. The program would not have been written had the software been made available by the industry for those operating systems, and had certain DVD players not been carelessly manufactured in such a way that the CSS encryption could be reverse-engineered.
The 1998 United States Digital Millennium Copyright Act provides specifically in section 1201(f) that reverse engineering of a copy-protection encryption system is legal for reasons of "interoperability" between computer systems. The Motion Picture Association of America claims that this software will lead to piracy of DVDs, a process virtually impossible with today's available hardware. The legal action against DeCSS distributors is more likely intended to prevent DVDs sold in one zone of the world from being played on DVD players in another zone, since the industry fears a loss of revenue if a movie could be viewed on DVD in Europe before being released in European theaters. Also, the distribution of free programs to view DVDs cuts into the money the Association makes from selling proprietary DVD software. In the opinion of the Global Internet Liberty Campaign, which is fully supported by the ACLU, the DVD CCA's actions are in direct conflict with United Nations human rights accords and the First Amendment of the United States Constitution, because the information that the programmers posted is legal.
The American Civil Liberties Union will enter a Boston court this Monday, March 27, 2000, to argue that a ban on a program allowing users to decode the Internet blocking software Cyber Patrol constitutes a "classic prior restraint on speech" in violation of the U.S. Constitution. Contrary to what Mattel, the maker of Cyber Patrol would have one believe the program, cphack.exe, does NOT allow children to circumvent the software and view the banned sites. It merely decodes the list of banned sites so that one can view it. The problem is that the software works so poorly that to have the blacklist opened to the public is a huge embarrassment to Mattel.
And Mattel should indeed be embarrassed by the list of banned sites. The sixteen categories in which a site can be flagged are "Violence / Profanity", "Partial Nudity", "Full Nudity", "Sexual Acts / Text", "Gross Depictions / Text", "Intolerance", "Satanic or Cult", "Drugs / Drug Culture", "Militant / Extremist", "Sex Education", "Questionable / Illegal & Gambling", "Alcohol & Tobacco", and 4 "Reserved" categories. Parents can theoretically choose which categories they want blocked from their children's eyes, except that Reserved categories 3 & 4 are blocked no matter what. Since the list of blocked sites is hidden, Mattel can in effect block any site they wish children not to see. Some sites are blocked under all categories. For instance, Peacefire, a site opposed to filtering software, is listed as containing "Violence / Profanity, Partial Nudity, Full Nudity, Sexual Acts / Text, Gross Depictions / Text, Intolerance, Satanic or Cult, Drugs / Drug Culture, Militant / Extremist, Sex Education, Questionable / Illegal & Gambling, Alcohol & Tobacco". That's not such a surprise; blocking Peacefire has become traditional among censorware manufacturers. Translation and anonymizing services, sites that allow one to type in a URL and view its contents THROUGH another page, are blocked under the same laundry list of offenses.
Parents who are planning to buy this for their children have a right to know exactly what it does, but more importantly, politicians who are planning to force this on public libraries should be informed of exactly what they would be legislating. Preventing the dissemination of this program is unconstitutional.
The ACLU is very wary of the United States government becoming "Big Brother in the Wires." The Clinton Administration has promoted and passed legislation that works to prohibit citizens from using encryption technology and allows the FBI and other government agencies to use electronic surveillance without strict regulations. The ACLU believes that these policies take away every U.S. citizen's fundamental right to privacy.
The Fourth Amendment protects citizens of the United States from unlawful search and seizure. A warrant has always been required for a search. Yet electronic snooping cannot be controlled by a warrant because of the vast nature of the area to be searched.
By prohibiting the use of encryption software, the government is able to "spy" on innocent Americans. In 1996, 2.2 million conversations were intercepted by the government. Of those, 1.7 million were found to be completely innocent dialogues. The government claims that they need access to electronic and digital communications to help prevent and solve serious crimes, but in the last thirteen years, almost none of all the wiretap requests have been made in investigation of life-threatening crimes.
The key recovery systems, to which the government feels entitled, weaken computer systems and make them more vulnerable. The FBI may think that encryption allows criminals to keep secrets, but it also prevents a considerable amount of crime on the internet, especially in commerce.
The ACLU has made the public aware of a global electronic surveillance system called "Echelon." This new system, led by the U.S. National Security Agency, is extremely powerful. Reportedly, it attempts to capture all types of communications and sorts through them, searching for suspicious keywords. This system could be a threat to civil liberties worldwide.
The ACLU defends the free exchange of encryption and encryption products, which is in agreement with the Constitutional right to privacy. Government policy still regulates the public use of encryption software, which means the government has the ability to regulate products that enhance privacy. The encryption export policies that exist include regulation of encryption source code. Presently licenses are required for export of encryption source code while other types of source codes do not require such licenses. The government also needs to be notified of any export of source code that is in an electronic form, while completely restricting export to some countries. However, the code in another form, like on printed paper is allowable under the same law.
"Export" also extends to the internet where posting of source code is allowed, but it becomes illegal if the person responsible for posting the information may know it will be read by someone from a regulated country. People also can be arrested under the present laws if they provide technical assistance to use encryption technology, even is it is software they developed.
In this way, the U.S. government also intrudes upon First Amendment rights when people are not allowed to publish encryption software or share research results with others over the Internet.
In order for there to be a secure internet and have people's privacy protected, the government needs to deregulate encryption and step back from controlling this technology.