Giving Away Secrets
by Peter Wayner
NYTimes OpEd, 1997-07-29

BALTIMORE — Internet hype can turn age-old problems into new grave threats. The biggest tempest may be the concern over the use of encryption, or secret codes, to scramble information sent over the Internet and other computer networks. The use of codes may thrill people who want to protect the business plans on their office computers and the love letters they send by E-mail. But it worries the Director of the Federal Bureau of Investigation, Louis J. Freeh, and other law-enforcement officials.

Mr. Freeh is right to be concerned that encryption can limit the ability of law enforcement to gather electronic evidence from wiretaps and court-ordered searches. But he was wrong when he recently told the Senate Judiciary Committee that "technology and telecommunications well beyond the contemplation of the Framers" will bring "a terrible upset of the balance so wisely set forth in the Fourth Amendment." In other words, he envisions the balance tipping against the police, because they will have more difficulty conducting reasonable searches if more of the information they are seeking is encrypted.

Yet cryptography wasn't beyond the contemplation of the Framers, because many of them were skilled code makers and code breakers themselves. David Kahn's book "The Codebreakers" tells how codes have affected history for more than 3,000 years. According to Mr. Kahn, George Washington had to deal with the problem when a coded message was intercepted in August 1775 from Benjamin Church, a member of the Massachusetts Congress who was a spy for the British. The message, which was finally deciphered, told the English details of American troop movements.

As Mr. Kahn reveals, both sides in the Revolutionary War made extensive use of encryption. Benedict Arnold designed the complex code that he used to sell out his country.

James Lovell of the Continental Congress helped win the war by breaking the codes used by General Cornwallis. After the war, Thomas Jefferson and James Madison communicated in their own private code. And Benjamin Franklin devised his own cipher for sending dispatches from Europe.

Yet in writing the Bill of Rights, the Founders did not forbid cryptography, even though they knew how powerful a tool it could be. Nor did they suggest that the police be able to obtain the plain text of a coded message. But that could happen under a measure sponsored by Senator Bob Kerrey of Nebraska, a Democrat, and Senator John McCain of Arizona, a Republican. Under their bill, the key to any code used to scramble information sent on the Internet would have to be given to the proper authorities. The Clinton Administration supports similar measures.

James Bamford, in "The Puzzle Palace," describes how the F.B.I. broke the case of the gangsters who were communicating without phone calls or letters. Agents discovered that the gangsters sent their shirts to Las Vegas to be dry cleaned -- and that the number of shirts held the coded message. No ban on cryptography on the Internet will be able to thwart creative crooks like these, but diligent police work can find cracks in the armor. This is why the National Research Council has recommended that Congress invest in research to help the F.B.I. better understand computers and codes.

The F.B.I. faces a daunting task. Encryption makes it impossible for agents to gather all the evidence they would like. But the answer is not to regulate, and in effect destroy, the use of coded messages. Criminals would probably find a way around the rules, and the rest of us could lose a powerful tool for protecting our privacy.

Peter Wayner is the author of Disappearing Cryptography.

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