The Encryption Export Policy Controversy: Searching for Balance in the Information Age

The Information Age challenges old paradigms and severely tests the government's ability to devise appropriate and effective national policies. The federal government s encryption export policy highlights a complex information age issue involving seemingly insurmountable conflicts between national security, law enforcement, privacy, and business interests. Encryption employs mathematical algorithms, implemented in either hardware or software, to encode or scramble a sequence of data. Although cryptography has been used for centuries, the rise of the Internet and electronic commerce pushed the issue of encryption control to the forefront of public debate during the 1990s. Formerly the near-exclusive domain of governments, the majority of today's encryption products flow from private industry backed by private funding for use in the private sector. While encryption rose to increasing importance in cyberspace to secure communications and establish trustworthiness, the federal government continued to follow the traditional national security paradigm of export controls. A series of policy decisions by the Clinton Administration on encryption export controls during the 1990s ignited a heated public discourse and a continuing search for a balance between competing interests. The Administration s pursuit of balance apparently reached its end-state with an announcement on September 16, 1999 to reverse US export restrictions on strong encryption, a radical departure from previous reliance on export controls. The federal government's search for balance among competing interests in its encryption export policy illustrates the substantial difficulties facing policy makers in the Information Age. While the search for policy balance appears to prove the ultimate adequacy of the Constitutional framework and the policy making process to deal with complex issues in cyberspace, it clearly highlights the imperative for national policy makers to recognize Information Age realities. 7