Cryptography and the First Amendment: The Right to be Unheard


Phillip E. Reiman


VOL. XIV • Winter 1996 • NO. 2 (table of contents)

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The author proposes that current technology has made cryptography an important element in maintaining a society's right to free speech. Cryptography is the process of using secret codes to protect information. This protection increases society's privacy because cryptographers can limit the amount of information that is seen by others.

The world is becoming a place where there is virtually no privacy. Everyone is open to surveillance through the Internet, use of a credit card or being filmed on a security camera. Cryptography is a means in which a person can protect his privacy. Through this protection, the author states that cryptography is a form of speech. Further, the author states that cryptography is an extension of the free speech protections and should be protected within the constitution.

There are two types of cryptographic systems: symmetric and asymmetric. Both systems can change readable symbols into a set of unreadable symbols. In symmetric cryptography, a sender uses a "key" to encode his message. The receiver uses the same key to decode the message. This key is the "cipher" for the message to be understood by both parties. No one can decode the message unless they have the "key." Asymmetric cryptography was created from a logarithmic function to produce two keys. The sender chooses a base number and exponent in order to create a "key." This key can be split between an encrypting function and a decrypting function. The receiver only has to publish part of the key and keep the other part secret. The asymmetric encryption system is a breakthrough in cryptography. The asymmetric system provides security for businesses. Businesses can create a "wall" of protection on the Internet.

The use of cryptography creates a speech-based privacy. Many argue that cryptography is not speech, and, therefore, should not be protected. However, cryptography is similar to a foreign language. Those who know the "key," under the cryptography, which is analogous to understanding a foreign language. Courts should not restrict speech protections because cryptography is a computer-based language.

The author concludes that cryptography must be protected speech under the First Amendment. Cryptography can restore a fundamental freedom of privacy which is abridged daily by the evolution of technology. Cryptography is an inexpensive shield against any intrusion of one's privacy. Consequently, cryptography is a vital part of protecting society's right to free speech.

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