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Copyright (c) 2001 Connecticut Law Review
Connecticut Law Review

The Fourth Amendment in Cyberspace: Can Encryption Create a "Reasonable Expectation of Privacy?"

Winter, 2001

33 Conn. L. Rev. 503


Orin S. Kerr*


Encryption offers Internet users an extraordinarily powerful tool to create privacy in cyberspace. 1 When a computer file is encrypted using software such as PGP, 2 the software scrambles the file into an unreadable form, known as "ciphertext." No one, not even the government, can unscramble the message back into readable form (known as "plaintext") without the encryption key. 3 Because encryption keys are in most cases impossible to guess-trying to guess a single key could occupy a supercomputer for millions of years 4-encryption offers Internet users a degree of privacy in Internet communications that remains unequaled in the physical world. As Professor Lawrence Lessig has explained, "encryption technologies are the most important technological breakthrough in the last one thousand years . . . . Cryptography will change everything." 5

The privacy implications of encryption have led many Internet law scholars to declare encryption regulation constitutionally off-limits. According to these scholars, the Fourth Amendment sharply limits how and when the government can regulate the use of encryption. 6 In particular, they reason that encrypting an electronic communication creates a "reasonable expectation of privacy" in the communication's contents, triggering Fourth Amendment protection. The near impossibility of decrypting a strongly encrypted Internet communication makes it "reasonable" to expect that the communication will remain private. Therefore, any regulatory scheme that allows the government to obtain a user's key and decrypt the communication without a warrant would violate her "reasonable expectation of privacy" ...
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