In contrast, the United States offers a two pronged attack on the free availability of secure encryption technology. A number of law enforcement agencies, not least the Federal Bureau of Investigations (FBI) have been pushing legislation, which while it would not ban the encryption of electronic communications entirely, would attempt to ensure that the law enforcement agencies would have a "back-door" facility which would allow them to continue to monitor electronic communications where they could persuade a court that it was necessary(121). So far, despite the increasingly emotive arguments about whether unrestricted encryption would allow child pornographers and drug dealers to communicate with absolute security, no US legislation has been forthcoming(122). The second prong of the attack, and the one of which most WWW users will have seen the result, is the US legislative ban on the export of certain encryption technology. Encryption software is classed under US law as 'munitions' and is thus subject to US export controls. Such controls include the banning of the passing of encryption technologies to certain blacklisted countries and individuals. The position of the US government as to the level of enforcement of these export controls is unfortunately unclear. This may be demonstrated by the recent decision of US Justice Department not to take any legal action against Philip Zimmermann, the inventor of the encryption software Pretty Good Privacy (PGP) over the release of that software to the wider Internet community(123). However, it is these export controls which are responsible for the clause in the Netscape licence which states:
EXPORT CONTROLS. None of the Software or underlying information or technology may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, if the licensed Software is identified as a not-for-export product (for example, on the box, media or in the installation process), then the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE SOFTWARE AND ANY UNDERLYING TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR FOREIGN PERSON AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE SOFTWARE, YOU ARE AGREEING TO THE FOREGOING AND YOU ARE WARRANTING THAT YOU ARE NOT A FOREIGN PERSON OR UNDER THE CONTROL OF A FOREIGN PERSON.
This has caused some consternation at UK educational establishments, with regard to their legal position when distributing Netscape software to their staff and students either by electronic means, or on media such as floppy disks. A discussion of the issues raised by that licence is included in the Appendices.
121 Denning, D.E. "Resolving the Encryption Dilemma: The Case for Clipper" Technology Review July 1995.
122 See Froomkin, A.M. "The Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution" (1995) 143 U. Pa. L. Rev. 709.
123 Jeff Licquia, PGP FAQ: Frequently Asked Questions--alt.security.pgp.
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