Date: Wed, 28 Apr 93 10:21:16 PDT
From: Spartan@CUP.PORTAL.COM
Subject: File 4--Some thoughts on Clipper and the Constitution (2)

Mike Godwin's recent essay on the Clipper Chip (reprinted above),
Digital Telephony and the Constitution raises several interesting
points.  I'll confine my response to those points relating to the
"chilling effect" that encryption may have on the use of emerging
communications technology.

Firstly, I have to admit my philosophical bias against the
crippled-security scheme employed in the Clipper Chip.  I do not have
any better reason (better than the government's reason) for wanting a
snoop-proof communications system; however, I acknowledge that the
government believes that it has a good reason for desiring it.  As in
most civil liberties cases, the issue comes down to a balance of
"good" reasons by both parties.

How much will the crippled encryption scheme really "chill" our use of
emergent communications technology, i.e., threaten our free speech
protection to the point that we may opt (if possible) to use other
communication media?  My understanding is that law enforcement
officials will still need to procure a warrant prior to decrypting
encoded communication.  If this is the case, will not encrypted
communication enjoy the same expectation of privacy as standard
telephone communications and postal mail?  It seems that the warrant
is the best device we have to protect us from illegal search and
seizure.  The threat of a warrant does not seem to have a wide
chilling effect on the use of standard telephones and postal
mail--yet, the possibility of interception is still ever-present.

We have created and authorized government to see to our mutual
protection, among other things.  This protection involves the
execution of duly legislated laws and the prosecution of alleged
criminals.  In order that government may carry out this charge we have
empowered it with the ability to investigate crimes by seizing
evidence and arresting suspects.  It is in this area that we seek a
balance: evidence is often someone's valuable (and private) property
and suspects are innocent until proven guilty.

Does not the warrant sufficiently address this balance?  It protects
suspects and property from frivolous seizure.  It allows law
enforcement officers to investigate cases for which there appears
sufficient probable cause and supporting evidence. If the protection
that a warrant offers is not sufficient to alleviate our fears of
unwarranted search, seizure, and arrest, then perhaps there are bigger
problems to deal with other than encryption schemes.

I'm nowhere near as qualified as Mike to offer an opinion on this
issue, but it seems to me that the "process" is exactly where we
should be focusing--the Constitutional issues are fascinating, but
distracting.  I have to believe that the warrant is an acceptable
safeguard to both sides of the balance.  Given that, it appears that
the balance has been disturbed by an unilateral decision with respect
to the Clipper Chip.  The plan presented by the Clinton
Administration, as far as attempting to balance the concerns of
government and the people, seems sound.  The fact that the people (and
its organized interest groups) were not consulted has attracted undue
criticism to a feasible plan that is actually wanting of process.

This is a political problem in that a practical solution is available,
but cannot be agreed upon because the process leading to that solution
did not allow for the necessary consultation and input to insure its
acceptability.  I'm certain that once bruised egos are attended to and
future assurances of consultation are gained, that the solution
settled upon will be very much like the one that stands.

Rich MacKinnon
Department of Government
University of Texas-Austin

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