Encryption Technology and the Patriot Act

One of the most controversial security measures instated after the attacks of September 11th was the imposition of additional penalties upon criminals who used encryption technology in their crimes. The justification for these added penalties "up to five years for the first offense and ten years after that" was that "criminals who use encryption will commit crimes that will be tougher to solve or prevent," and the more stringent punishment would "make criminals think twice before scrambling their messages" (Proposed encryption, 2004, USA Today). The logic seems flawed: someone would willingly commit a crime, yet would do so in a more ineffective way, for fear of the harsher sentence he or she might receive, if caught committing the crime while using encryption technology?

Civil libertarians warned the law could result in more stringent sentences for relatively minor offenses. Theoretically, because most shopping websites use encryption technology, someone who did not pay sales tax on a purchase could receive five to ten extra years in prison, or someone who made a mistake on an online tax form could receive a far harsher sentence than someone who used a paper form. (Proposed encryption, 2004, USA Today). As Bruce Schneier's text Schneier on Security indicates, encryption is being increasingly used by watchful and responsible people to protect their security online. The concern about implicating an innocent person or giving a harsh sentence to someone for a minor offense is not far-fetched given the ubiquitous nature of encryption technology. The useful and benign nature of encryption means that to increase the potential penalties for a crime simply for using encryption may allow many small and possibly great injustices to occur within the judicial system.

References

Proposed encryption laws could prove draconian, many fear. (2003, March 31). USA Today.

Retrieved December 17, 2009 at http://www.usatoday.com/tech/news/techpolicy/2003-03-31-crypto-rights_x.htm

Schneier, Bruce. (2008). Schneier on Security. New York: Wiley.