1. ENCRYPTION
Once a field dominated almost exclusively by governments concerned with protecting secrets and accessing information held by others, the last twenty years has seen the popularization of encryption as businesses and individuals have increased their use of electronic media and have sought to protect their electronic products and communications. (Bernstein v. U.S., 974 F. Supp. 1288, 1292 (1997).) Encryption is a technological solution to the privacy problem on the Internet.
Technology exists that permits an interceptor to scan the contents of massive volumes of e-mail and other electronic data for preprogrammed words or phrases. (Ryan Alan Murr, Privacy and Encryption in Cyberspace: First Amendment Challenges to ITAR, EAR, and Their Successors, 34 San Diego L. Rev. 1401, 1409 (Summer 1997).) The answer to this technological problem lies in another technological process that makes data and communications unintelligible to potential interceptors. The process of changing plain data into unintelligible code is called "encryption."
In the past, encryption was under the exclusive authority of the military intelligence community. However, recent advances in computer-generated encryption have brought this technology to the private sector, making it possible for ordinary citizens to communicate in codes so secure that not even the U.S. military can decipher the encoded messages. (Id. at 1406.) As use of the Internet rose and people have increasingly used electronic media to store and transmit sensitive information, demand for encrypting software has sharply risen. At the same time, computers have become faster, making encryption that was once secure, vulnerable to interception by those possessing the fastest computers. As a result, concerns about today's encryption have increased the demand for stronger encryption.
Technologists have, also, specifically designed "privacy enhancing technologies" to customize particular information flow rules and provide valuable tools to create privacy policies on the Internet. These technical mechanisms will allow users to avoid problems with conflicting privacy standards by allowing users to expressly agree to a particular use or release of their personal information.
One such solution is a PICS-based rating label and software filters which offer a resolution to conflicting legal privacy rules on the Internet. Where privacy standards differ, such as between the U.S. and most other countries, an individual may consent to deviations from default legal standards and PICS filter configurations will allow users to choose uses of their personal information, as well as ensure their decisions are implemented. (Joel R. Reidenberg, Lex Informatica: The Formulation Of Information Policy Rules Through Technology, 76 Tex. L. Rev. 553, 563 (February 1998).) While the Internet is designed to implement the default rule of open information access, a PICS label allows users to express their privacy preferences and web sites can be rated for their treatment of personal information. (Id. at 563.) When the preferences and treatment defaults do not match, a software filter can be designed to disclose the discrepancy to the user and to stall the transaction. (Id.) Users may then choose either to proceed with or to cancel the transaction. These privacy solutions exemplify how technology itself can create privacy policies on the Internet.
Using strong encryption with digital information, senders and recipients can essentially assure themselves of privacy. Although many individuals and businesses seek this assurance, not everyone agrees that strong encryption ought to be available.