Why laptop border searches are like the failed crypto policy of the 1990s

[David Farber <dave () farber net>]

________________________________________
From: Peter Swire [peter () peterswire net]
Sent: Wednesday, June 25, 2008 12:42 PM
To: David Farber
Subject: Why laptop border searches are like the failed crypto policy of the 1990s

Hi Dave:

I think this may be of interest to your list, in light of the recent thread on laptop searches at the U.S. border.

Today the Senate Judiciary Committee held the first congressional hearing on the topic.  Witnesses from EFF, Muslim 
Advocates, and the Association of Corporate Travel Executive provided excellent testimony about problems with the 
searches.  All the testimony is here: http://judiciary.senate.gov/hearing.cfm?id=3420

My own testimony gave detailed reasons why the current policy for laptop searches (based on border searches) is 
strongly analogous to Clipper Chip and the rest of the crypto policy that was so controversial in the 1990s (also based 
on the border and the ban on crypto export):


1.      Traditional legal arguments apply badly to new facts about computing

2.      Government forces disclosure of encryption keys

3.      Severe violation of computer security best practices

4.      U.S. policy creates bad precedents that totalitarian and other regimes will follow

5.      Severe harm to personal privacy, free speech, and business secrets

6.      Disadvantaging the U.S. economy

7.      Political coalition of civil liberties groups and business

8.      Technical futility of U.S. policy

I don’t know if this will happen, but I predicted today that the laptop searches, if they continue and expand, “may 
mobilize the reserve army of outraged techies.”

Thanks,

Peter

Prof. Peter P. Swire
C. William O'Neill Professor of Law
   Moritz College of Law
   The Ohio State University
Senior Fellow, Center for American Progress
(240) 994-4142, www.peterswire.net



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