Can encryption prevent the cybercrime?

July 24, 2008 - 1:37pm | author: ayny | Articles | Law aspects

can be used as a measure of preventing cybercrimes including planned security breaches but also as a means of protecting intellectual property crimes and other crimes involving cyberstalking, harassment, and software theft. However the balance of constitutional concerns must be balanced with the use of encryption.

Encryption is the transformation of data into a form that is as close to impossible as possible to read without the appropriate knowledge. The purpose of encryption is to ensure privacy by keeping information hidden from anyone for whom it is not intended including even individuals that have access to this encrypted data. Decryption is the reverse of encryption and it involved the transformation of encrypted data back into a readable form that can be unlocked. Encryption and decryption generally require the use of some secret information that is referred to as a key. For encryption measures, the same key is used but for other measures a different key is used. Authentication has become another emerging area of cryptography and has begun a great part of the Internet as privacy and contractual arising are arising online. When agreements are being sent electronically, a system of authentication needs to be into place to demonstrate that this document is what it says that it is and has been signed by the appropriate parties involved. Cryptography is the study of techniques and applications that depend on the existence of difficult problems. Cryptography is concerned with keeping communications private and determining whether communications are indeed authenticated. Cryptography provides the tools for authentication including a digital signature that binds a document to a possessor of a particular key and a digital timestamp that binds a document to its creation at a certain time.

Won’t encryption measures affect privacy rights?

Privacy has been a fundamental right and that many consider to be fundamental to is an extremely important value to be protected; however this right to privacy must be reconciled with the need for law enforcement and public safety concerns. The law enforcement is responsible, in part, for protecting privacy in a variety of circumstances which include where data confidentiality has been breached under 18 U.S.C. Section 1030(a)(2) and for violations of the wiretap statute. There must be a carefully considered balance for the Fourth Amendment which will allow government invasion of privacy to protect public safety and to prosecute crimes, but only when law enforcement can make the necessary showing, such as demonstrating "probable cause" to a neutral and detached magistrate. There must be a definite balance between encryption and a balance between constitutional issues. However, the use of encryption would potentially have constitutional concerns because of the effective nullification of a court's issuance of a search warrant or wiretap order.

How can preventing the use of encryption not violate the freedom guaranteed under the First Amendment?

Whether or not the use of encryption is protected by the First Amendment remains to be an issue that must be determined. The use of encryption could be classified as a means for permitting individuals to be able to speak in a form or code or language. Potentially, the argument could be that a restriction on encryption that is available could be argued as a chilling of protected speech.

However, whether or not encryption is actually protected speech has been contended. The fact that encrypted speech is arguably similar to a foreign language has been argued; however generally is not considered to have the same protections, because the use of encryption has been compared to ciphertext which cannot be understand by listeners or in fact heard. This form of ciphertext in fact has been in the form of unintelligible static, but cannot be understand by humans. This differentiation may hold the key determination for why this ciphertext is held not to be protected speech like a foreign language, because it is not only inaudible but it is not understand by its intended recipient. Therefore, based on the determinations that have been made by the Supreme Court on this type of speech protection, the dissemination of ciphertext is not considered to be entitled to First Amendment protection.

Another argument made for the lack of Constitutional basis for this speech is based on the fact that legislation proposed could be modified to actually have constitutional “muster” or still be constitutionally significant.

Is encryption considered to be “object” code or “source code” and what is the constitutional relevancy?

Whether or not this ciphertext or encryption is considered to be object code or source code has enormous constitutional implications. This type of code does not reveal to its reader what the ideas conveyed or their expression. It is called object code, because the computer itself understands and executes the coded instructions that have been "compiled" or made ready for computer operation. Based on the fact that there can not be a message conveyed, there can be restrictions on the dissemination of encryption products containing object code without a violation of the First Amendment. However, if ciphertext were considered to be more similar to source code, there could definitely be viable constitutional arguments. The source code refers to the version of computer code that is in readable text form, understandable by properly trained people, rather than computers. The source code is essential for licensees of software to access in order to remedy the problems. This source code is generally protected by trade secret or in the license agreement as still being owned by the developer of the software. Source code is more similar to the instructions to the computer that human beings write and revise and can be considered to be communicating ideas and innovations. However, the underlying security concerns for these restrictions on encryption can be upheld if they are well-tailored and can pass constitutional muster.

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