As digital encryption and privacy-enhancing technologies have become more sophisticated, law enforcement and national security concerns have grown more acute. In response, the Clinton administration has restricted the export of strong encryption and has proposed various means to provide “back-door” access to data by law enforcement. This article examines the historical precedent to digital on-line privacy today, finding that courts have historically had difficulty protecting privacy interests through the Fourth and Fifth Amendments in the context of new technologies. The article also examines the historical precedent set by Congress when it passed Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and the Electronic Communications Privacy Act of 1986, and, through legislation, raised the privacy standard from that set by the courts. This article argues that under current Fourth and Fifth Amendment precedent, it is possible to structure a Constitutionally permissible key escrow program. However, the article argues, measures such as key escrow programs and export controls would provide few benefits to law enforcement officials while seriously infringing on individual privacy interests and significantly disadvantaging the U.S. encryption industry.
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