A. First Amendment Issues "Congress shall make no law . . . abridging the
freedom of speech, or of the press; or the right of the people peaceably to
assemble."
1. Compelled Speech - key disclosure is compelled speech.
2. Chilling Effect on Speech - : (1) the extent to which speech
is likely to be chilled; (2) the degree to which the prohibition falls unevenly on a
particular group as opposed to society at large; and (3) the availability of alternate
channels of communication
3. Anonymity and the Freedom of Association
4. The Parallel to Antimask Laws
B. Fourth Amendment Issues "the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures."
1. The Fourth Amendment Does Not Give the Government an Affirmative Right to an
Effective Search
2. Mandatory Escrow of a Key Is a Fourth Amendment "Search or Seizure"
3. Mandatory Key Escrow as a "Regulatory Search" - intended to deter
illegal behaviour.
C. Fifth Amendment Issues "no person... shall be compelled in any
criminal case to be a witness against himself."
1. The Chip Key as a Private Paper
2. Is a Chip Key or a Session Key "Incriminating"?
D. Privacy Issues
1. The Right to Autonomous Choice Regarding Nonintimate Matters
2. The Right to Be Left Alone
3. The Right to Autonomous Choice Regarding Intimate Matters
Most of these issues apply to noncommercial speech, or in the privacy of one's
home. Also, the assumption that there is no possible for abuse in the absense of a warrent
ways heavily on escrows side.
Augst 25 1997. Judge Rules Export Control Regs Unconstitutional. Judge
Marilyn Patel ruled that U.S. controls on the export of encryption software violate
constitutional free speech protections. The federal district judge issued a permanent
injunction prohibiting the U.S. government from preventing the export of Daniel
Bernstein's Snuffle encryption program. The court, however, declined to apply its ruling
to all encryption software.
