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Does the government have the right to see encrypted internet messages?

This article first appeared in the St. Louis Beacon, Oct. 4, 2010 - The Obama administration is in the process of drafting new legislation that would broaden the reach of the federal government's eavesdropping capabilities to include encrypted messages delivered over the Internet.

Under the prospective legislation, as reported in the New York Times, all online communication services would be required to provide back doors to their services, which would allow them to comply if served with a wiretap order. Affected services would include social networking websites like Facebook, encrypted email providers such as BlackBerry and "peer-to-peer" services like Skype.

The administration argues that the legislation is necessary to keep the government's investigative capabilities up-to-date with current technologies. As more and more communication moves online, the government has had less access to messages that could pose a threat to national security.

Privacy advocates are expressing concern that such a law would harm privacy and civil liberties. Leading the pushback is the digital rights advocacy group, the Electronic Frontier Foundation (EFF).

In a blog post made shortly after the Times story was released on Monday, the group likened the legislation to the so-called "crypto wars" fought in the mid-90s. During that time, the EFF and others fought for the public's right to strong encryption tools that would enhance privacy and security over the Internet.

A major victory in the crypto wars came in 1999 when Daniel Bernstein, a graduate student at University of California at Berkeley, won a suit filed against the federal government over its attempt to require him to register an encryption algorithm he created. The government attempted to require Bernstein to register as an arms dealer and to obtain a license to publish his ideas. Bernstein argued that such requirements were a violation of his First Amendment rights.

The 9th Circuit Court of Appeals explained that, in an age of lowered privacy standards, encryption software offered an opportunity for individuals to reclaim their lost privacy. Thus, the court reasoned, "Government efforts to control encryption ... may well implicate not only the First Amendment rights of cryptographers intent on pushing the boundaries of their science, but also the constitutional rights of each of us as potential recipients of encryption's bounty."

The government's updated attempts to control encryption software would challenge that decision and could possibly raise the First Amendment issues that the 9th Circuit identified.

At this point, Facebook is the only service affected by the potential legislation that has offered any response. The company maintained that it would consider the proposal once it knew the details but could not comment on something it had not yet seen.

About the author

Kraig Koch is a graduate student in the College of Mass Communication and Media Arts at Southern Illinois University Carbondale. Prior to SIUC, he earned his Bachelor of Arts from Eastern Illinois University and, afterward, spent a year working for the clerk of the Illinois Supreme Court. Kraig will graduate with a Master of Science in Professional Media and Media Management in May 2011.

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