suprem~1.txt

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          transferred  the   regulation  of  cryptology   for  unclassified
          information to the National Institute of Standards and Technology
          (NIST).  Nevertheless,  the  NSA under  the  Bush  Administration
          continued   to  forge   ahead   in  its   attempts  to   regulate
          cryptosystems.  In  1991  it  announced the  development  of  the
          Digital Signature Standard (DSS), and proposed that its system be
          used for private sector security. At that time the NIST was about
          to recommend  a encryption method known  as Rivest-Shamir-Adelman
          (RSA), an  algorithm patented  by the Massachusetts  Institute of
                              
          ____________________

               55The Mutual Security Act of 1954.
 ________________________________

               56See  C. B. Escobar,  Nongovernmental Cryptology and Nation
             ___                  _____________________________________
          Security:   The  Government   Seeking   To   Restrict   Research,
      ________________________________________________________________
          Computer/Law Journal, Vol. IV (1984).

               57National  Policy  On   Telecommunications  and   Automated
          Information   Systems   Security,   National  Security   Decision
          Directive (Sept. 17, 1984).

               58See R.  A. Franks, The  National Security  Agency and  Its
             ___                _______________________________________
          Interference  With Private  Sector  Computer Security,  Iowa  Law
      _____________________________________________________
          Review, 1015 (1987).

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          Technology. Within a few months, however, NIST endorsed the  DSS.
          Congress responded  by establishing the  Computer System Security
          and  Privacy Board which called for a  national debate on the use
          of cryptology.59
               In  April  1993, the  Clinton  Administration  announced its
          approval  of the Clipper  Chip, a cryptologic  device designed by
          engineers  at the NIST for both voice and data communications. It
          is  intended for  use by  the private  sector in order  to secure
          communications while  at the  same time enabling  law enforcement
          agencies to conduct surveillance. In other words, the device aims
          at maintaining  the government's ability to  eavesdrop on private
          communications  in the  face  of private  sector cryptology  that
          threatens  current   law  enforcement  practices.  The  plan  for
          implementing  the Clipper Chip  includes legislation  which would
          provide protection  under the  Fourth Amendment.  Presumably, law
          enforcement  agents  would require  a  warrant to  be  granted in
          accordance  with  the  same restrictions  currently  placed  upon
          wiretapping  and  the   interception  of  electronic   mail.  The
          ramifications  of  this  controversial  proposal,  including  its
          constitutional implications, are presently under debate.60

          Conclusion

               No  one denies the necessity of maintaining the integrity of
          the Constitution, especially the  protection afforded by the Bill
          of  Rights. Yet  disputes  do arise  over  whether it  should  be
          accomplished without upsetting the  balance of powers between the
          executive,  legislative, and  judicial branches.  In the  case of
          protecting individuals from unreasonable electronic surveillance,
          we  have  seen that  it  was  the Supreme  Court  which took  the
          initiative. By interpreting the  meaning of the term  "search and
          seizure"  to include the seizure of  conversation, the Katz Court
          expanded  the   breadth  of  the  Fourth   Amendment  to  include
          electronic  surveillance.  From an  originalist  perspective, the
          Court gravely upset the balance  of powers by deriving, defining,
          and applying a principle  of privacy not explicitly found  in the
          text of the Constitution. From an activist perspective, the  Katz
          Court  rightly took a  biased stand in order  to bring the Fourth
          Amendment  into accord  with the technological  circumstances and
          political climate of the day.
               After  the  Supreme  Court   made  the  first  move  towards
          protecting  individual privacy,  Congress quickly  responded with
          legislation designed  to restrict electronic surveillance  by the
          Executive. According to originalists,  the political stand of the
          Court in  support of  civil rights was  a threat  to freedom.  In
                              
          ____________________

               59See J.  A.  Adams, Cryptography=privacy?,  IEEE  Spectrum,
             ___                _____________________
          August 1992, pp. 29-35.

               60See  L.  Arbetter,  The  Clipper  Chip  Debate,   Security
             ___                 __________________________
          Management, August 1993, p. 8.

                                          15












          other words, by  exerting their power  into the political  realm,
          non-elected justices  disregard the proper  authority of  elected
          members of Congress. Yet  in Katz we did not witness the collapse
          of  democracy. On the contrary,  we saw the  separation of powers
          produce a  prompt response by  Congress, a response  that checked
          the powers of the Court and the Executive. Although the adherence
          to  original  meaning defended  by  Justice Black  and others  is
          credible,  originalists  cannot  legitimately  claim  that  their
          method of  constitutional interpretation is  the only  acceptable
          approach  to adjudication.  They  demand that  the separation  of
          powers should  be clearly  defined. Yet  the  actual practice  of
          checks and  balances reveals that  the judiciary is  political by
          the  very  nature  of  the Constitution's  design.  Although  the
          Supreme  Court is the weakest of the  three branches, it has just
          enough  political power  to agitate  Congress and  the Executive.
          Even  when  the Court  refrains  from  adjudication, a  political
          message is sent. Such was the case when the Olmstead Court called
          upon Congress to legislate  protection from wiretapping under the
          Fourth Amendment.
               Nevertheless,   the   activist   method  of   constitutional
          interpretation  is not  without its  own difficulties.  After two
          decades of upholding  civil rights, the  Supreme Court now  finds
          itself facing unexpected technological circumstances and situated
          within a very  different political climate. At the  time Congress
          and the Court  endorsed a right  to privacy, individual  citizens
          lacked  the  technological means  to  protect  themselves against
          electronic surveillance. Thus, the law  was the only obstacle  to
          surveillance.  Today,  however,  private  communications  can  be
          established with a personal computer and sophisticated encryption
          software. Hence,  the Executive considers the  new technologies a
          threat to its  ability to enforce the law and  is taking measures
          to maintain  its electronic surveillance  capabilities. Moreover,
          Congress is becoming  less concerned about civil rights  and more
          concerned  about controlling the high  rate of crime.61 What will
          the Court do when it is  called upon to evaluate laws intended to
          protect  the "rights" of  law enforcement  agencies? How  will it
          maintain its credibility?
               The  Supreme   Court  will  eventually  have   to  face  the
          constitutionality of "crime control" statutes designed to augment
          the powers of  law enforcement  agencies. If the  Court takes  an
                              
          ____________________

               61In fact, the Senate  is currently debating over S.  618, a
          bill  "To  control and  reduce  violent  crime." Among  its  many
          provisions  designed to  increase  the power  of law  enforcement
          agencies is the following statute:
               Sec. 545. Cooperation  Of Telecommunications  Providers
               With Law Enforcement. It is  the sense of Congress that
               providers of electronic  communications systems  permit
               the  government to  obtain the  plain text  contents of
               voice,    data,    and   other    communications   when
               appropriately authorized by law.

                                          16












          originalist stand, it will  remain silent. If it takes  a liberal
          activist stand, it will pit the liberties of citizens against the
          powers of the state  in a battle over  civil rights. However,  if
          the Court takes  a radical  activist stand, it  will move  beyond
          "rights  discourse"  in  order   to  pressure  Congress  and  the
          Executive into addressing the vast disparity which is at the root
          of a considerable amount of crime. Under these circumstances, the
          Court  may  even  employ  its  political  power  to  instigate  a
          constitutional  convention  on  racial  and  economic  injustice.
          Nonetheless,  whichever  theory  of adjudication  it  chooses  to
          practice,  the Court's resolutions will inevitably have political
          repercussions.









































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                                     BIBLIOGRAPHY

          Adam, John A. Cryptography = privacy? IEEE Spectrum, August 1992.

          Arbetter, Lisa. The Clipper Chip Debate. Security Management,
               August 1993.

          Bork, Robert. The Tempting of America. (New York: The Free Press,
               1990) Chapter7.

          Clukey,  Laura L.  The Electronic  Communications Privacy  Act of
          1986:
               The  Impact  on  Software  Communication  Technologies.
               Software Law Journal, Vol. II, 1988.

          Franks, Renae Angeroth. The National Security Agency and Its
               Interference  with  Private  Sector Computer  Security.
               Iowa Law Review, 1015, 1987.

          Kastenmeier, Robert W., Deborah Leavy, and David Beier.
               Communications  Privacy:   A  Legislative  Perspective.
               Wisconsin Law Review, 1989:715.

          Landever, Arthur R. Electronic Surveillance, Computers, and the
               Fourth   Amendment   -   The   New   Telecommunications
               Environment Calls for Reexamination of Doctrine. Toledo
               Law Review, Vol. 15, Winter 1984.

          Merritt, Deborah Jones. The Constitution in a Brave New World: A
               Century of Technological Change and Constitutional Law.
               Oregon Law Review, Vol. 69, Num. 1, 1990.

          Escobar, Christy Brad. Nongovernment Cryptology and National
               Security:  The Government Seeking To Restrict Research.
               Computer Law Journal, Vol. IV, 1984.

          Soma, John T., and Richard A. Wehmhoefer. A Legal and Technical
               Assessment  of  the  Effect of  Computers  On  Privacy.
               Denver Law Journal, Vol. 60.3, 1983.

          Southard, C. Dennis IV. Individual Privacy and Governmental
               Efficiency:  Technology's  Effect  on the  Government's
               Ability to Gather,  Store, and Distribute  Information.
               Computer/Law Journal, Vol. IX, 1989.

          Wintersheimer, Lisa Ann. Privacy Versus Law Enforcement - Can the
               Two  Be  Reconciled? Cincinnati  Law  Review,  Vol. 57,
               1988.