Law Professors Call Oxley-Manton Amendment Unconstitutional and Unwise

Twenty-eight law professors from the nation's top law schools Tuesday sent a letter to Congress arguing that controls on the domestic use of encryption, such as the Oxley-Manton amendment currently pending before the House Commerce Committee, are "a profound mistake" that would "contravene fundamental principles of our constitutional tradition."

The law professors, including representatives from Yale, Harvard, Stanford, and 23 other law schools as well as many of the leading experts in the emerging area of computer law, argued that the Oxley-Manton amendment is as "unconstitutional as it is unwise." The professors stated that the amendment will create "an unprecedented system of global surveillance, expanding law enforcement authority and circumventing the protections of the First and Fourth Amendments."

The letter to Congress comes as the House Commerce Committee plans to mark-up H.R. 695, the "SAFE" Act, on Wednesday, September 24. The SAFE bill was intended to ease controls on encryption exports, but an FBI-drafted substitute in the House Intelligence Committee and the proposed Oxley-Manton amendment would impose unprecedented new domestic restrictions outlawing the distribution of encryption products that do no provide "immediate access" backdoors for law enforcement. The law professors highlighted several areas of concern with this approach:

• The amendment would do "violence to our Fourth Amendment values" by limiting the ability of all citizens to protect their own privacy. "By requiring users of encryption to place their key with third parties who can be compelled under the statute to hand that key over to the government, the amendment makes possible secret searches by the government on an unprecedented scale." The professors argue that "the Fourth Amendment has never guaranteed law enforcement's ability to search, seize and understand every conversation, communication, or stored record of every citizen."
  

• The amendment would undermine constitutional rights to free speech. In outlawing the production of encryption, "the amendment would in effect be mandating the code software writers may write. Only governmentally approved code could be used to transmit speech the speaker wants to protect. . . . This forced speech, we believe, takes the government's power too far."
  

• The amendment leaves international communications and data without adequate privacy protections. The global access systems needed to realize law enforcement's plan would leave international encryption users "without the privacy protections afforded under U.S. law, and without the technical security protections provided by encryption without a backdoor." The professors argue that the U.S. would "become the leader in establishing a new global surveillance society."
  

The professors concluded that the amendment is "too radical a change to make with so little thought. We urge you to resist it."

For more information please contact Alan Davidson at CDT, (202) 637-9800. Authors of the letter available for comment today include: Michael Froomkin, University of Miami School of Law, (305) 284-4285; Lawrence Lessig, Harvard Law School, (617) 495-8099; Peter Swire, Ohio State University College of Law, (614) 488-5613.

The full text of the letter is available online at http://www.cdt.org/crypto/.

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