Web Security and Commerce

Foreign Restrictions on Cryptography

The primary way that cryptography is restricted within the United States is through the use of export controls. There are many reasons for this peculiar state of controls:

• It is widely believed that any direct restrictions on the use of encryption within the United States would be an unconstitutional violation of the First Amendment, which forbids Congress from making laws restricting the freedom of speech or the freedom of association.

• The United States has a history of both openness and governmental abuse of investigative power. Nevertheless, the current policy has allowed the federal government to claim that it has no interest in restricting cryptography used within the United States.

• Nevertheless, restricting the cryptography technology that can be placed in software for export effectively limits the cryptography technology that can be placed in software that is used domestically, because most companies are loath to have two different, and incompatible, versions of their software.

• Fortunately for the federal government, the argument of how restrictions on foreign software impact domestic software are so complicated that they go over the heads of most sound bite-oriented Americans.

But other countries do not have a First Amendment, and many have already passed laws to regulate or prohibit the use of strong cryptography within their borders. Some are also pressing for world nongovernmental organizations, such as the OECD, to adopt policy statements ...