Leveraging Worldwide Encryption Standards Via U.S. Export Controls: The U.S. Government’s Authority to “Safeguard” the Global Information Infrastructure

Wednesday, January 1st, 1997 at 12:00 am by Bernadette Ann Barnard
Bernadette Ann Barnard, Leveraging Worldwide Encryption Standards Via U.S. Export Controls: The U.S. Government’s Authority to “Safeguard” the Global Information Infrastructure, 1997 Colum. Bus. L. Rev. 429

In an era when major financial transactions, as well as privileged corporate documents and sensitive private conversations, are handled electronically, the security of those exchanges is of increasing concern. Given the current transition to electronic networking, the strength and inviolability of the encryption used to secure data and communications merits serious consideration if the possibilities and promises of electronic commerce and secure digital communication are to be fulfilled. The security of the encryption used is increasingly consequential given the incredible growth of international communications, transactions, and data storage. Use of the Internet and online/network services has exploded and raised issues of the security and privacy available in the electronic medium. Recent breaches of information security and privacy have accentuated the level of difficulties with viruses, misuse of information, and breach of high-level security. Encryption is necessary for companies whose business is centered on the Internet, whose clients wish to communicate over “cyberspace”, or who wish to conduct high-speed financial transactions over the Internet. Concurrent with the desire to protect the privacy and security of electronic communication is a concern about the impenetrability of criminal or terrorist communications that encryption might allow. Global electronic communications undermine national borders and barriers with ideas and information being traded across borders with little regulation or restriction. National security and public safety interests have been employed by the Clinton Administration in justifying the requirement of access to encrypted information or communications. That the Administration position is based upon classified information makes review, and especially judicial review, difficult. This Note will explore the policy and “real world” implications of the judicial, administrative and legislative decisions on the issue of encryption. How encryption and computer language are defined under the laws and the protections that speech receives under the Constitution, as well as the possibilities for review of those decisions, will dictate a security protocol that will greatly affect the software industry and further influence the course of the development of electronic networking and commerce. This Note concludes that the checks and balances placed upon administrative actions are inadequate to protect both individual and commercial interests from unfettered administrative action. This is especially true in the case of the export licensing of encryption, where judicial review of licensing decisions is denied and the regulations themselves have been promulgated under the authority of an expired statute which is being kept alive by the Emergency Powers of the President.

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