The Constitution and Encryption Regulation: Do We Need a 'New Privacy'?

Abstract

This essay is an extended version of remarks at a conference at NYU on privacy issues. It first characterizes the legal and constitutional regulation of encryption as fundamentally permissive domestically but restricted internationally via export control rules. Those rules, however, are being challenged in a trio of court cases which raise serious challenges to the export control regime. Furthermore, it is increasingly clear that encryption is necessary to protect privacy in the face of new technological capacities to monitor speech and behavior. It concludes with a warning: if you cannot be anonymous, everything you do can potentially be tracked.

Keywords: encryption, encryption law, encryption regulation, constitutional law