William & Mary Bill of Rights Journal
Abstract
The emergence of the computer has revolutionized communications, allowing quick dissemination of information to large numbers of people. Information transmitted electronically is often safeguarded through a widely available method known as encryption, which renders the information unintelligible to anyone without the ability to decrypt the message. Law enforcement agencies argue that unregulated encryption hinders their ability to prevent crime by providing criminals with a method of communication that cannot be accessed by police departments and government agencies. Proponents of encryption argue that privacy, security, and constitutional concerns outweigh law enforcement's fears, guaranteeing the ability to communicate confidentially.
In 1994, the government adopted a new encryption standard that arguably alleviated the risks underlying confidential communications. This Note will argue that although voluntary, this action was a failed attempt at controlling encryption, and that as a result, the federal government will propose a mandatory encryption scheme. Under traditional First Amendment jurisprudence, such a scheme resembles a content-neutral time, place, and manner restriction, and courts will have to balance the competing interests involved. This Note analyzes the First Amendment implications of a mandatory encryption scheme, including possible chilling effects on speech.