by Andrew Grosso

(This article is a revised version of a talk given by the author at the 1996 RSA Data Security Conference, held in San Francisco, California. Mr. Grosso is a former federal prosecutor who now has his own law practice in Washington, D.C. His e-mail address is

I would like to start by telling a war story. Some years ago, while I was an Assistant U.S. Attorney, I was asked to try a case which had been indicted by one of my colleagues. For reasons which will become clear, I refer to this case as "the Dank case."

The defendant was charged with carrying a shotgun. This might not seem so serious, but the defendant had a prior record. In fact, he had six prior convictions, three of which were considered violent felonies. Because of that, this defendant was facing a mandatory fifteen years imprisonment, without parole. Clearly, he needed an explanation for why he was found in a park at night carrying a shotgun. He came up with one.

The defendant claimed that another person, called "Dank," forced him to carry the gun. "Dank," it seems, came up to him in the park, put the shotgun in his hands, and then pulled out a handgun and put the handgun to the defendant's head. "Dank" then forced the defendant to walk from one end of the park to other, carrying this shotgun. When the police showed up, "Dank" ran away, leaving the defendant holding the bag, or, in this case, the shotgun.

The jurors chose not to believe the defendant's story, although they spent more time considering it than I would like to admit. After the trial, the defendant's story became known in my office as "the Dank defense." As for myself, I referred to it as "the devil made me do it."

I tell you this story because it reminds me of the federal government's efforts to justify domestic control of encryption. Instead, of "Dank," it has become, "drug dealers made me do it;" or "terrorists made me do it;" or "crypto anarchists made me do it." There is as much of a rationale basis behind these claims as there was behind my defendant's story of "Dank." Let us examine some of the arguments the government has advanced.

It is said that wiretapping is indispensable to law enforcement. This is not the case. Many complex and difficult criminal investigations have been successfully concluded, and successfully argued to a jury, where no audio tapes existed of the defendants incriminating themselves. Of those significant cases, cited by the government, where audio tapes have proved invaluable, such as in the John Gotti trial, the tapes have been made through means of electronic surveillance other than wire tapping, for example, through the use of consensual monitoring or room bugs. The unfettered use of domestic encryption could have no effect on such surveillance.

It is also said that wiretapping is necessary to prevent crimes. This, also, is not the case. In order to obtain a court order for a wire tap, the government must first possess probable cause that a crime is being planned or is in progress. If the government has such probable cause concerning a crime yet in the planning stages, and has sufficient detail about the plan to tap an individual's telephone, then the government almost always has enough probable cause to prevent the crime from being committed. The advantage which the government gains by use of a wiretap is the chance to obtain additional evidence which can later be used to convict the conspirators or perpetrators. Although such convictions are desirable, they must not be confused with the ability to prevent the crime.

The value of mandating key escrow encryption is further eroded by the availability of super encryption, that is, using an additional encryption where the key is not available to the government. True, the government's mandate would make such additional encryption illegal; however the deterrence effect of such legislation is dubious at best. An individual planning a terrorist act, or engaging in significant drug importation, will be little deterred by prohibitions on the means for encoding his telephone conversations. The result is that significant crimes will not be affected or discouraged.

In a similar vein, the most recent estimates of the national cost for implementing the Digital Telephony law, which requires that commercial telecommunications companies wiretap our nation's communications network for the government's benefit, is approximately three billion dollars. Three billion dollars will buy an enormous number of police man hours, officer training, and crime fighting equipment. It is difficult to see that this amount of money, by being spent on wire tapping the nation, is being spent most advantageously with regard to law enforcement's needs.

Finally, the extent of the federal government's ability to legislate in this area is limited. Legislation for the domestic control of encryption must be based upon the commerce clause of the U.S. Constitution. That clause would not prohibit an individual in, say, the state of California from purchasing an encryption package manufactured in California, and using that package to encode data on the hard drive of his computer, also located in California. It is highly questionable whether the commerce clause would prohibit the in-state use of an encryption package which had been obtained from out of state, where all the encryption is done in-state and the encrypted data is maintained in- state. Such being the case, the value of domestic control of encryption to law enforcement is doubtful.

Now let us turn to the disadvantages of domestic control of encryption. Intentionally or not, such control would shift the balance which exists between the individual and the state. The individual would no longer be free to conduct his personal life, or his business, free from the risk that the government may be watching every move. More to the point, the individual would be told that he would no longer be allowed to even try to conduct his life in such a manner. Under our constitution, it has never been the case that the state had the right to evidence in a criminal investigation. Rather, under our constitution, the state has the right to pursue such evidence. The distinction is crucial: it is the difference between the operation of a free society, and the operation of a totalitarian state.

Our constitution is based upon the concept of ordered liberty. That is, there is a balance between law and order, on the one hand, and the liberty of the individual on the other. This is clearly seen in our country's bill of rights, and the constitutional protections afforded our accused: evidence improperly obtained is suppressed; there is a ban on the use of involuntary custodial interrogation, including torture, and any questioning of the accused without a lawyer; we require unanimous verdicts for convictions; and double jeopardy and bills of attainder are prohibited. In other words, our system of government expressly tolerates a certain level of crime and disorder in order to preserve liberty and individuality. It is difficult to conceive that the same constitution which is prepared to let a guilty man go free, rather than admit an illegally seized murder weapon into evidence at trial, can be interpreted to permit whole scale, nationwide, mandatory surveillance of our nation's telecommunications system for law enforcement purposes. It is impossible that the philosophy upon which our system of government was founded could ever be construed to accept such a regime.

I began this talk with a war story, and I would like to end it with another war story. While a law student, I had the opportunity to study in London for a year. While there, I took one week, and spent it touring the old Soviet Union. The official Soviet tour guide I was assigned was an intelligent woman. As a former Olympic athlete, she had been permitted in the 1960's to travel to England to compete in international tennis matches. At one point in my tour, she asked me why I was studying in London. I told her that I wanted to learn what it was like to live outside of my own country, so I chose to study in a country where I would have little trouble with the language. I noticed a strange expression on her face as I said this. It was not until my tour was over and I looked back on that conversation that I realized why my answer had resulted in her having that strange look. What I had said to her was that *I* had chosen to go to overseas to study; further, I had said that *I* had chosen *where* to go. That I could make such decisions was a right which she and the fellow citizens did not have. Yes, she had visited England, but it was because her government chose her to go, and it was her government which decided where she should go. In her country, at that time, her people had order, but they had no liberty.

In our country, the domestic control of encryption represents a shift in the balance of our liberties. It is a shift not envisioned by our constitution. If ever to be taken, it must be based upon a better defense than what "Dank," or law enforcement, can provide.