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Constitutional Considerations of the Escrowed Encryption Standard DOCUMENT RESUME ED 392 080 CS 509 174 TITLE Proceedings of the Annual Meeting of the Association for Education in Journalism and Mass Communication (78th, Washington, DC, August 9-12, 1995). Law Division. INSTITUTION Association for Education in Journalism and Mass Communication. PUB DATE Aug 95 NOTE 422p.; For other sections of these proceedings, see CS 509 173-187 and CS 509 196. PUB TYPE Collected Works Conference Proceedings (021) EDRS PRICE MFOI/PC17 Plus Postage. DESCRIPTORS Censorship; *Constitutional Law; Copyrights; Higher Education; *Information Networks; Information Services; *Internet; *Journalism; Journalism Research; Legal Responsibility; *Libel and Slander; Mass Media Use; Online Systems; Universities IDENTIFIERS First Ar idment; *Journalists; Press Law; United States Constitution ABSTRACT The law section of the Proceedings contains the following 12 papers: "Constitutional Considerations of the Escrowed Encryption Standard" (Pat Bastian); "Exploring the Link between Source Credibility and Reputational Harm: Effects of Publication Type on Belief of Potentially Defamatory Statements"(Kenneth R. Blake); "Legislative Magic and the Leonard Law: Turning Private Universities into Public Entities" (Clay Calvert); "Technical Innovation Meets Economic and Financial Mohopoly: The Clear Channel Group and the Clear Channel Issue, 1934-1941" (James C. Foust); "Alachua Free-Net: Looking for the First Amendment at One Outpost on the Information Highway" (David R. Friedman and Matt Jackson); "Speakers' Rights in Private Forums: How the First Amendment Might Look on the Information Superhighway" (Michelle Johnion); "Retractions to Avoid Libel Suits: The Uniform Correction or Clarification of Defamation Act versus Tennessee Law" (Kelly C. Lockhart and Geoffrey Hull); "Who Belongs to the Pr;vileged Class? Journalistic Privilege for Non-Traditional Journalists" (Priscilla Coit Murphy); "Taming the Watchdog: Justice Byron White and the Repudiation of Press Privilege" (Alan Prendergast); "Anti-Abortion Political Ads: Balancing Questions of Indecency, Censorship, and Access" (Michael Spillman); "'Living Law' in the Newsroom: A Study of Social Influences" (Paul S. Voakes); and "When Copyright Law Silences Creativity: Digital Sampling and a Group Called 'Negativland" (Sylvia E. White). (CR) ********************************************************************** Reproductions supplied by EDRS are the best that can be made from the original document. *********************************************************************** PROCEEDINGS OF THE ANNUAL MEETING OF THE ASSOCIATION FOR EDUCATION IN JOURNALISM AND MASS COMMUNICATION (78th, Washington, DC, August 9-12, 1995).Law Division. U.S. DEPARTMENT OP EDUCATION 011.ce of EducalKmai Rim Imreh and Improvemont "PERMISSION TOREPRODUCE THIS EDUCATIONAL RESOURCES INFORMATION MATERIAL HAS BEEN CENTER (ERIC) GRANTED BY TnI3 document nes been reproduced es reCved from thill CWIWSOn Or organ/cation oroponahnp d 0 Mmor cnengos neve been mule to ornprowe rproductoon duality PonIS Or vl Or opmons stated on IN, doCu- mint do not nCruly rpritOrd Odra& TO THE EDUCATIONAL OE DI pOsitfOri or pohcy RESOURCES INFORMATION CENTER(ERIC).- ) BEST eOPY AVAILABLE CONSTITUTIONAL CONSIDERATIONS OF THE ESCROWED ENCRYPTION STANDARD Pat Bastian 2725 Vagabond Lane Plymouth, MN 55447 6AI CONSTITUTIONAL CONSIDERATIONS OF THE ESCROWED ENCRYPTION STANDARD Whether the computer revolution will be allowed to destroy what the American revolution won for us remains to be seen.' --- George B. Trubow I. INTRODUCTION Legal and political theorists, sociologists and philosophers have long-debated themerit of unconstrained speech. One perspective recognizes speechas a fundamental human need for self-expression; another considers the open marketplace of ideas crucial to the health of democracy. Regardless of the value of free speech-- individuality or community or a combination of the two-- the Bill of Rights provides a clear blueprint for expressive rights. Explicit freedoms of speech, press and assembly and the implicit right to privacyare based on these bedrock principles. Supreme Court interpretations of the First Amendment enjoin the government from prohibiting speech with which it disagrees'or restricting speech before its utterance' unless it has been established that such constraints wouldserve a narrowly-defined compelling government interest.In theory, at least, such principles would not vary with the method of communication. But in 1791, when the first ten amendments to the Constitutionwere written, communication was simpler than today. People spoke and wrote, listened and read. They chose the recipients of their communications and concealed private documents and confidential conversations behind locked doors. The Constitution guaranteed the collective rightto these Trubow, "The Fourth Amendment, Privacy, and Modern Technology; A Time for Reassessment," A Time for Choices, p.29 Texas v. Johnson, 491 U.S. 397 (1989) 3 Near v. Minnesota. 283 U.S. 697 (1931) 1 P. Bastian Escrowed Encryption Standard July, 1995 actions. Today the complications of electronic communication challenge these simple precepts. The abstraction of networked data transfer forces us to rethink traditional definitions of privacy, speech and publication. This paper will explore the controversial Escrowed Encryption Standard (EES), a federal plan to protect telephone and computer communications from illegal interception and to allow government access to these communications for surveillance.It will examine the plan's constitutional implications, with specific attention to the First, Fourth and Fifth Amendments. II. THE TECHNOLOGY EXPLOSION Twelve years ago Ithiel de So la Pool predicted a massive confluence of electronic communications systems in his prescient book, Technologies of Freedom: To serve the public, there will be networks on networks on networks. Separate nations will have networks, as they do now, but these will interconnect. Within nations, the satellite carriers, microwave cdrriers, and local carriers may be-- and in the United States almost certainly will bein the hands of separate organizations, but again, they will interconnect. So even the basic physical network will be a network of networks. And on top of these physical networks will be a pyramid of orvice networks. Through them will be published or delivered to the public a variety of things: movies, money, education, news, meetings, scientific data, manuscripts, petitions, and editorials.' Today we approach that vision. ARPAnet, the first generation of the Internet, was a 1969 experiment to connect the U.S. Defense Department communications in a system that de Sola Pool, Technologies of Freedom, p.227 2 P. Bastian Escrowed Encryption Standard July, 1995 could withstand partial outages (as in the case of nuclear attack).5It has since grown exponentially and now the Internet connects individuals and institutions educational, government, commercial and research -- worldwide.It began with four university computers. Today it is a global network of over three million host computers and 20 to 30 million individual computers' that is owned by no one. The Internet crosses and blurs the traditional lines between public and private fora, speech and press, cities, states and countries. As the massive networks on networks on networks has flourished, so has the diversity of participants. While the original ARPAnet was accessible only to scientists who had mastered arcane commands, today students, citiizens, and children in the mainstream population obtain information and communicate. Communication on the Internet takes many forms. Anyone with a computer, a modem, and a connection to the system may use one-to- many platforms to publish or participate in discussions. The same person may also use E-mail to communicate on a one-to-one basis. III. SECURITY One requirement that all computer users -- private, commercial and government agree upon is the need for security.In the physical world spaces are defined in tangible ways. 5 Gibbs and Smith, Navigating the Internet p.5. The Internet began in 1969 as ARPANET, a network of four computers at the Universities of Utah, California at Santa Barbara, California at Los Angeles, and Stanford Research Institute International. One of its goals was to develop flexible communications systems between computers for the government and the militny. 6 Press Release, The Internet Society, Aug. 5, 1994 6 P. Bastian Escrowed Encryption Standard July, 1995 Borders demarcate countries, fences enclose real property, walls contain homes and offices. We lock sensitive or personal documents in safes and choose the recipients ofour communication. Written correspondence is sealed and addressed; it is not postedon public bulletin boards. The times, places and manners of private conversations are designed to preclude intrusion. The cyberspace' equivalent of sealed envelopes is encryption. Encryption technology employs hardware and/or software to ensure that electronic communicationvoice and data is not intercepted by unwelcome and unintended parties. The technology permits communicators transmitting across telephone lines to encode conversations or data and permit only the intended recipient(s) to decode the message. As of November, 1993, there were approximately 200 non-U.S. and about 300 U.S.- based cryptographic products.'One product, Pretty Good Privacy (PGP), is considered uncrackable and is available to computer operators world-wide as a free, downloadable program.' The U.S.
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