Law enforcement officials at the national level have lobbied for restrictions on the use and export of encryption in an effort to preserve their ability to monitor electronic communications. At present, individuals living in the United States with an interest in encrypting software have legal access to strong encryption. However, these same individuals may not distribute copies of the software to friends and partners abroad without first applying for a license from the government. (Ryan Murr, Privacy and Encryption in cyberspace: First Amendment Challenges to Itar, Ear, and their successors, 34 San Diego L. Rev. 1401, 1401 (1997).) This poses a problem because many domestic users of encryption do not have the same encrypting programs as their foreign counterparts, making compatibility an issue for communicating in secret both internationally and domestically. (Id.)
Law-abiding citizens are left without secure means to communicate in secret across international borders while those who disregard the law freely exchange encryption software and source code internationally. Communications applications such as electronic mail and electronic fund transfers require secure means of encryption and authentication which can only be provided if strong encryption is available and unencumbered by government regulation.
Governmental regulation of encryption security techniques endangers personal privacy. The Organization for Economic Cooperation and Development ("OECD") has adopted guidelines recognizing that the "fundamental rights of individuals to privacy, including secrecy of communications and protection of personal data, should be respected in national cryptography policies and in the implementation and use of cryptographic methods." (Cryptography and Liberty: An International Survey of Encryption Policy, http://www.gilc.org/crypto/crypto-survey.html)
Currently, there is no international consensus on the regulation of encryption. The U.S. government favors the law enforcement position, therefore, U.S. computer companies have been restricted from exporting strong security encryption programs because they are considered an effective way for terrorists to communicate without fear of government intervention. Despite pressure from the United States, most nations have not accepted the regulation of encryption through the establishment of a key escrow system. (Id.) Unless the United States can convince other nations to adopt encryption regulation with key escrow, the U.S. regulations will not work effectively. Encryption restrictions must be internationally coordinated. Otherwise, a user could obtain unregulated encryption software from another country, easily accomplished by downloading the material from the Internet. (Id.) Without international cooperation, the United States key system would be essentially unenforceable.
In a recent international survey, it was found that most countries in the world today do not have controls on the use of encryption. (Id.) In the vast majority of countries, encryption may be freely used, manufactured, and sold without restriction. (Id.) Interests in electronic commerce and privacy appear to outweigh the concerns expressed by law enforcement. The unrestricted use of techniques to protect personal privacy, such as encryption, remains an important concern for the international civil liberties and human rights communities. (Id.)