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1996 U. Chi. Legal F. 171 (1996)
Compelled Production of Plaintext and Keys

handle is hein.journals/uchclf1996 and id is 175 raw text is: Compelled Production of Plaintext and Keys Phillip R. Reitingert While many features of computer networks that may ad- versely affect privacy are outside of an individual's control, the ability to encrypt information may provide computer users with near absolute privacy for the content of their communications and stored data. In part for this reason, privacy advocates sug- gest that universal, strong encryption is a bulwark against the intrusion of government into personal privacy.1 Effective protections come at a price, however, because absolute privacy also protects criminals.2 Law enforcement, quite naturally, pre- fers a solution that protects privacy while preserving its present ability to gain access to data and communications, when autho- rized by law, to protect the public.' This Article will not attempt to resolve this somewhat theo- logical debate,4 which depends to a great degree on whether one t Trial Attorney, Computer Crime and Intellectual Property Section, Criminal Divi- sion, Department of Justice. The opinions expressed in this Article are those of the author and do not necessarily reflect the opinions of the Department of Justice or the United States Government. I would like to thank the following individuals for their thoughts, advice, and assis- tance (not all of whom have reviewed this Article): Scott Charney, Marty Stansell-Gamm, Steve Mitchell, Peter Toren, Alex White, Don MacPherson, Robert Litt, Geoffrey Greiveldinger, Gail Thackery, and Don Ingraham. ' See Stephen Kent, et al, Special Panel of the Association for Computing Machinery U.S. Public Policy Committee, Codes, Keys, and Conflicts: Issues in U.S. Crypto Policy 30 (ACM, Inc., 1994) (Civil libertarians view availability of strong cryptography as necessary to the ability to communicate privately in an electronic world.). 2 Law enforcement has frequently suggested that the use of cryptography will impair its ability to intercept communications pursuant to a judicially authorized wiretap under Title III of the Omnibus Crime Control and ,Safe Streets Act of 1968, as amended, 18 USC §§ 2510-22 (1994). See Kent, Codes, Keys, and Conflicts at 20 (cited in note 1). A greater threat to law enforcement's ability to protect the public, however, may arise from the inability of law enforcement to access encrypted electronically stored material, un- covered, for example, while executing a search warrant. ' Considered from a law enforcement perspective, what is needed is strong cryptog- raphy that protects the nation's communications infrastructure but that does not simulta- neously imperil the government's ability to comprehend intercepted communica- tions-when law enforcement comes armed with a court order. Kent, Codes, Keys, and Conflicts at 20 (cited in note 1). ' I am indebted to Daniel Weitzner of the Center for Democracy and Technology for framing the issue in this way.

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