Cryptography Law

Cryptography law is the body of law that relates to securing and protecting information from unauthorized access. Cryptography laws protect individuals from having their personal information disseminated without their consent. They also work to protect government secrets as part of a military defense strategy. Another name for cryptography law is encryption law.

What Is Cryptography?

Cryptography or encryption is the practice of modifying information with a secret encoding key or other method of transforming the information to another form. The purpose of encryption is to make sure that only authorized people have access to information. Obscuring or transforming information to a secret form is called encryption. Changing the information back to its original form is called decryption.

History of Cryptology Laws

In the early 20th century, government officials viewed cryptography as a critical issue of national security. For that reason, laws preventing the export of cryptography information and technology were strict. In fact, the U.S. government was so concerned about protecting cryptology systems that U.S. officials listed cryptologic systems as auxiliary military equipment. Officials required exporters to have a license in order to share cryptologic information with foreign individuals.

Loosening of cryptography Laws

With the advent of cryptography in modern commerce, cryptography laws began to loosen in the 1990s. Enforcement difficulties and the proliferation of modern technology prompted the changes in cryptography laws. While some controls still exist regarding export of cryptography, the laws are not as restricting as they were in the early and mid 20th century.

However, national governments continue to grapple with whether to allow the sharing and sale of encryption technologies. They also continue to question what restrictions to place on the use of the technology. U.S. law has not changed significantly since the the early 2000s. Non-military cryptology exports remain under the auspices of the U.S. Department of Commerce Bureau of Industry and Security.

The Use of Cryptology Technology Today

Today, cryptography law impacts business and industry as well as national security. Commercial encryption technology is critical for credit card purchases as well as money transfers. Businesses need to be able to send information securely and effectively between different nations.

Major Cryptology Legislation Affecting the United States

Wassenaar Agreement

The Wassennar Agreement is a voluntary agreement between 42 member nations. The Agreement is a product of the Coordinating Committee for Multilateral Export Controls which sought to control the export of cryptography technology to the former Soviet Union. The Agreement requires participating nations to make voluntary disclosures of their export activities. The Agreement remains relevant in the modern era of online hacking, terrorism and other threats to Western nations.

e-Government Act of 2002

The e-Government Act of 2002 recognizes the changing role that cryptologic information must play in a society that relies on computers and electronic information. The Act promotes the use of the Internet and electronic record keeping as a method to provide government information and services. The Act also calls for transparency and accountability in the use of personal information in government services. The e-Government Act of 2002 requires government agencies to conduct an impact assessment regarding personal information any time they consider implementing a new technology that distributes, gathers or stores personal information.

Areas of Cryptology Law

There are a number of ways that an attorney might work in the field of cryptology law:

Creating Cryptology Laws and National Policies

The use of encrypted information is still a matter debate regarding how it pertains to national security. Attorneys work to create sound policy as it relates to release of cryptologic technology internationally. They also work to create laws and policies regarding commercial use of encrypted information and the protection of personal information.

Implementing cryptography Laws

Business attorneys work to implement cryptography laws. They help their clients understand what cryptography laws exist and what they must do to implement laws correctly. Business lawyers help their clients use best practices when it comes to using encryption technology to do business.

Patent Control

Cryptologic systems are often highly prized technological secrets. When a corporation develops new encryption technology, they may want to secure a patent relative to the technology. Cryptology attorneys help their clients pursue patents as appropriate for technology developments in this area of law.

Challenging cryptography Laws – First Amendment Concerns

Even though the government may seek to prevent the export of encryption technology because of national security concerns, First Amendment rights may prohibit government officials from limiting private behavior. Cryptography law may involve the application of legal challenges to exportation restrictions on First Amendment grounds. Lawyers argue for both sides when the government wants to restrict use of encryption technology.

Negligence lawsuits

When encryption technology fails to prevent the release of personal information, a business may find themselves the subject of negligence litigation. Businesses rely on lawyers to help them defend against suits based on the failure of cryptologic information to prevent the release of personal data. Cryptography lawyers help their clients as well as juries understand the legal implications of what occurred in a case.

Search and Seizure Questions – Fifth Amendment Concerns

Another issue affecting cryptography laws is the issue of whether the government can force private citizens and corporations to decrypt data when the data may be used to pursue a prosecution against the individual or against a customer. The Fifth Amendment provides individuals with the right to reject self-incrimination. In other words, you don’t have to give information to the government that implicates you in a crime. In the context of cryptology laws, courts debate whether individuals can be forced to provide decrypting information that allows the government to access their computers and accounts.

In one case, In re Boucher, a court held that the government could compel an individual to provide their encryption key where the individual had already allowed the government to conduct some search of a laptop during a border crossing. However, in another case, U.S. v. Doe, the 11th Circuit Court of Appeals found that the Fifth Amendment prohibits forced decryption of private information and technology. There are ongoing battles between government officials and major tech companies in the United States regarding government access to encrypted information for law enforcement purposes.

Who Practices Cryptography Law?

Cryptography lawyers practice in a wide variety of practice areas and settings. Government lawyers may work for the U.S. Department of Defense or the U.S. Department of Commerce. They may also work for any government agency that must implement the e-Government Act of 2002 and work to comply with other federal regulations.

Many cryptography lawyers work as in-house counsel for major corporations. Every large technology corporation and any business that gathers or uses personal information online must think about how to secure the information that they use. They rely on cryptography lawyers to help them understand the laws and implement them in a way that shields them from legal liability.

Lawyers may also work in cryptology law as they work on cases relating to constitutional rights. Cryptology cases may invoke questions about the First Amendment and Fifth Amendment. Attorneys advocate for their clients while they seek clarification and the expansion of laws in this developing area of practice. Attorneys may specialize only in cryptology law, or they may handle a single case as part of a broader practice.

Why Become a Cryptography Lawyer?

Cryptography law is an exciting and developing area of practice that requires attorneys with strong skill sets in both legal advocacy and technical information. Because the field of cryptography law is of utmost importance to the government and to the private agencies that rely on it, employers are often willing to pay top dollar for highly skilled attorneys in this area of practice. The field of cryptology law is a highly specialized area of law. Choosing a career in the field and honing your expertise may make you in-demand as one of a few attorneys with a specialty in the area.

You may also have the opportunity to influence cryptology law. You may work for a corporation to protect consumer information. You might work on behalf of an individual or corporation to protect constitutional rights. A government attorney might work to represent state interests as they relate to law enforcement or national security. Practicing cryptology law may bring the opportunity for a promising career along with the opportunity to influence society.

The Practice of Handling Information

Cryptography law impacts all Americans. The area of law provides opportunities for both government and private practice. Through their work, cryptography lawyers have a say over the way society handles encrypted information and personal data.