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3 The Role of Encryption in Protecting Privacy and Civil Liberties
Pages 32-35

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From page 32...
... In the United States, as the Supreme Court has explained, privacy, free speech, freedom of association, and freedom of religion are essential to a functioning democracy, and there is often a convergence of First Amendment rights, Fourth Amendment protections against unreasonable search and seizure, and the protected zones of privacy that stem from these rights. In a case involving undisclosed wiretap surveillance, the Court stated: 32
From page 33...
... The Church Committee's 1976 report, which detailed abuses of intelligence information involving every president from Franklin Roosevelt through Richard Nixon, warns of the potential chilling effect of government surveillance: When Government infringes those rights instead of nurturing and pro tecting them, the injury spreads far beyond the particular citizens ­ argeted t to untold numbers of other Americans who may be intimidated.3 Vice President Hubert Humphrey observed in 1967: We act differently if we believe we are being observed. If we can never be sure whether or not we are being watched and listened to, all our actions will be altered and our very character will change.4 These dangers to free expression posed by government surveillance were also addressed in Justice Sonia Sotoymayor's concurring opinion in United States v.
From page 34...
... Repressive regimes have imposed outright censorship on the Internet and tried to prevent the use of electronic messaging by political opponents and power­ ul countries have attacked political actors in other countries. f These developments have led to the view that encryption, which protects the privacy of communications and sensitive information, has become an intrinsic part of the rights to freedoms of speech and belief.7 Some would also contend that regulation of encryption amounts to a restriction on the manner by which citizens represent their own expression.
From page 35...
... If so, such measures may negatively impact the civil liberties or human rights of those individuals who are not targeted by the particular warrant. At a minimum, the availability of encryption for communications protects against the chill to free speech stemming from the fear of illegal government surveillance.9 There are also situations where law enforcement claims the legal right to obtain information without a warrant.

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