Student Review:

            Does the ideal of absolute privacy conflict with the government's law enforcement function? Anjali Singhal's article examines the controversy surrounding encryption and privacy and advocates the use of the Clipper Chip and Digital Telephony Law to provide a beneficial balance between privacy interests and government enforcement interests. Moreover, Anjali Singhal argues that "rigorous enforcement of wiretap procedures and harsher penalties for wiretap abuse will alleviate the slim possibility of abuse under the Clipper Chip and Digital Telephony Law."
      The article provides a brief introduction to the history of cryptography, including symmetric and asymmetric key cryptography. According to Ms. Singhal, Cryptography serves two purposes, ensuring privacy and enabling authentication by providing a digital signature. The author examines the arguments advanced for encryption including guarding intellectual property rights and promoting electronic commerce.
      Electronic communication is susceptible to diminished privacy because electronic communication can be stored for an indefinite amount of time and because it is difficult to tap into a particular communication without recording other communications that transmit across the same fiber optic lines.
      The article then examines the case and statutory law concerning the Fourth Amendment and electronic privacy, including Justice Brandeis' dissent in Olmstead v. United States, Katz v. United States, Berger v. New York, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, and the Electronic Communications Privacy Act of 1988 (ECPA).
      Part IV of the article addresses changes in technology and its effect on the government's ability to conduct criminal investigations. In an attempt to balance the interests of law enforcement and privacy, the government has responded with
two proposals, the Digital Telephony Law, which passed Congress in October 1994, and the Clipper Chip, which
incorporates key escrow technology. After examining these proposals, the article argues that the voluntariness of the Clipper Chip will eventually become mandatory. The article states that the government has demonstrated a willingness to bar the use of technology which frustrates law enforcement, such as prohibitions on radar detectors which inhibit law enforcement officers from detecting speeding vehicles.
      Part VI of the article addresses the reasonable expectation of privacy and concerns of privacy advocates. Privacy
advocates argues that the implementation of the Clipper Chip and DTL eviscerates any reasonable expectation of privacy
that one may hold regarding encrypted communications. Additionally, privacy advocates argue that because digital networks are subject to abuse, allowing government agents to conduct wiretaps on these networks diminishes societyís reasonable expectation of privacy. Ultimately, privacy advocates, according to Ms. Singhal, claim that the Clipper Chip and DTL will thereby make procurement of a search warrant needless.
      Ms. Singhal argues against these assertions. She claims that the Clipper Chip, instead, creates a reasonable expectation of privacy since all current judicially and legislatively created wiretap requirements will remain in place. Ms. Singhal further argues that the extension of Title III protection to noncellular cordless telephone communications demonstrates the unwillingness of Congress to erode the reasonable expectation of privacy.
      Part VII is a critical assessment of the Digital Telephony Law and the Clipper Chip. Ms. Singhal concludes the article by reasserting that the Clipper Chip and DTL both increase protection of privacy and reestablish the balance between privacy and law enforcement. Ms. Singhal's article adeptly traces the development of Fourth Amendment law in the realm of electronic devices.
      Both businesses and individuals have argued against the Clipper Chip. Businesses have asserted that the Clipper Chip will fail from an economic standpoint, because of its probable failure as an export reform, its lack of security due to the
escrowed keys, and its undisclosed algorithm. Businesses, however, do not argue from the ideological standpoint because they want enough leeway to read employee email and check telephone records in the event of a security breach. The Clipper Chip responds to the needs of businesses by proving a powerful cryptosystem with a backdoor through which
encrypted messages can be decoded in the event of a security breach. Specialized procedures will be necessary to enable
the businesses to obtain decoding keys to decrypt business communications. Such procedures, according to the author,
should require a lesser showing than probable cause. Ms. Singhal also addresses the concerns of opponents of the Clipper
Chip concerning the placement of both escrow agents within the executive branch. However, the author argues that it
remains unwise to place the escrow agent in the private sector.
      For an article on the First Amendment implementations of government-controlled encryption, see Jill M. Ryan, Freedom toSpeak Unintelligbly: The First Amendment Implications of Government-Controlled Encryption, 4 Wm. & Mary Bill Rts. J. 1165 (1996).

Article Summary by: Ryan P. Farley
Emory School of Law 1996