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Encryption and Globalization

by Peter Swire & Kenesa Ahmad
13 Colum. Sci. & Tech. L. Rev. 416 (Published Sept. 9, 2012)

Abstract

During the 1990s, encryption was one of the most hotly debated areas of technology law and policy. Law enforcement and security agencies initially supported limits on the export of strong encryption for national security reasons. In 1999, however, the administration shifted position to allow largely unrestricted export of encryption technologies. Encryption law and policy discussions largely faded from view.

Recently, encryption is again resurfacing as a major point of policy discussion. Changes to Indian and Chinese laws regarding encryption technologies have raised questions of international trade, national security, and communications security.

There are key lessons learned from the U.S. experience that are highly relevant when the debate shifts from one country to a globalized setting. However, since the U.S. encryption question was settled in 1999, a new generation of policy makers, lawyers, and technologists has emerged with little or no experience in the area of encryption policy.

This article seeks to fill an important gap in the literature, and to inform the debate on encryption policies in the face of increasing globalization. By examining the relevant history, technology, law, and policy, this article explains why it is vital to assure the widespread and global availability of strong encryption for our data and communications.

About the Author

Professor Peter Swire is the C. William O’Neill Professor of Law at the Moritz College of Law of the Ohio State University. He is a senior fellow at the Center of American Progress, and policy fellow at the Center for Democracy and Technology. He leads a project on government access to personal information for the Future of Privacy Forum.

Under President Clinton, Swire served as chief counselor for privacy in the U.S. Office of Management and Budget, the only person to date to have governmentwide responsibility for privacy policy. His activities there included being White House coordinator for the HIPAA medical privacy rule and chairing a White House working group on how to update wiretap laws for the Internet.

In 2009 and 2010 Swire served as special assistant to President Obama for Economic Policy, serving in the National Economic Council with Lawrence Summers. Swire worked extensively there on housing and housing finance, and also on broadband, spectrum, privacy, and other technology issues.

Kenesa Ahmad received her J.D. from the Moritz College of Law of the Ohio State University, where she served as an editor of the Ohio State Law Journal, and received her LL.M. from Northwestern University Law School. She is currently a Legal and Policy Fellow with the Future of Privacy Forum.

Important Note

For proper legal citation of this document, please cite to the following URL: http://www.stlr.org/cite.cgi?volume=13&article=9. The URL that currently appears in your browser’s location toolbar is incorrect. For more information on Bluebook citation of internet sources, click here.

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     The first goal is to provide intellectual leadership on encryption as that topic becomes a major area of controversy globally in countries including India and China. Encryption was the single biggest privacy issue in the 1990s. There has been very little policy analysis of the topic since that time.  Now, as major countries implement limits on effective encryption, it is important to inform a new generation of policymakers and technologists about reasons to support effective encryption.

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