Abstract
A. Michael Froomkin*The regulation of cryptography is an issue that I personally be-lieve is of great importance to our lives. I hope to persuade you overthe next quarter hour that it will become increasingly important. Iwant to start, however, by briefly sketching the state of play regardingthe legal and constitutional regulation of encryption, and then talkabout the somewhat more speculative issues that really concern me themost.The state of play right now is fairly simple. If you want to useencryption domestically to encrypt a stored file or a real-time commu-nication, you can do so. Because this is peace time, there are, as hasalways been the case in this country in peace time, no limits whatso-ever on your ability to use encryption technology—no legal limits, atany rate. There are export controls enforced for various kinds of cryp-tography that make it illegal to export various strong encryption prod-ucts without a license. There are also certain categories of productsfor which certain categories of people do not and will not get licenses.Those export control policies are being challenged in three courtcases: Bernstein v. United States Department of Justice,