The Consequences of Criminalizing Crypto

Monday, 3 March 2003, 12:28 PM EST

There is nothing like the fear of weapons of mass destruction to bring out weary old legislative proposals. Earlier this month, it leaked out that the Justice Department was considering a broad expansion of its investigative authority, including the creation of new criminal offenses, ostensibly to assist in the fight against terrorism. Many of the proposals contained in the "Domestic Security Enhancement Act of 2003" had nothing to do with fighting terrorism, but would substantially increase penalties for such mundane offenses as wire fraud or claiming too many deductions on a federal tax return.

One such proposal -- which has been floated out many times before -- is the idea of making a new crime out of using encryption in during the course of commission of a different and unrelated crime.

The language would create a new offense which would punish anyone who "during the commission of a felony under Federal law, knowingly and willfully encrypts any incriminating communication or information relating to that felony." It defines encryption as referring to "the scrambling (and descrambling) of wire communications, electronic communications, or electronically stored information, using mathematical formulas or algorithms in order to preserve the confidentiality, integrity, or authenticity of, and prevent unauthorized recipients from accessing or altering, such communications or information."

This is a bad idea.

[ Read more ]




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