A discussion of the constitutionality of the Clipper chip

One of the many reasons that the clipper mandate has not yet been embodied in the form of legislations could be its highly suspect constitutionality. This subject has been given a very thorough and well throughout analysis by Michael Froomkin

Probably the most compelling argument is based on the Fourth Amendment's protection from unreasonable search and seizure. In today's society, information and data are some of the most critical and personal affects any individual may have. As such ones communication and data are deserving of the same protections that ones more tangible property, such as ones home, are afforded. "The Fourth Amendment guarantees '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' It also states that 'no Warrants shall issue but upon probable cause. . . particularly describing the place to be searched, and the persons or things to be seized.'"

"A search is a governmental invasion of a "reasonable expectation[] of [personal] privacy." {501} Nonconsensual searches by the [Page 828] government into matters for which individuals have a (subjectively and objectively) reasonable expectation of privacy ordinarily require a search warrant." However, the extents of the various words are often where the battles are fought; what is "reasonable expectation". While the constitution was an attempt to protect a sovereign people from the potential tyranny of government, the Supreme Court has overtime afforded some leniency towards the state. For example reconstruction of discarded shredded documents was deemed acceptable!

The second most compelling aspect of the constitution pertaining to this issue is the First Amendment: "Congress shall make no law. . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble." Again, although constituionally the clipper could be problematic from a number of perspectives, none of them are an absolute barrier. Mandatory disclosure of keys can be viewed as compelled speech, restrictive of free speech and potentially capable of undermining anonymity, seen by some as "essential for the survival of [some] dissident movement". On the other hand, none of these clauses have been held to be absolute in their nature by the Supreme Court and are as such, "negotiable".

Finally, the Fifth Amendment, protecting one from self incrimination, (disclosure of the key could allow the gathering of potentially damaging information), could be used. Proponents would more than likely argue that since as all keys are preemptively collected, after buying a clipper product, the individual is not actually providing any self incriminating evidence.

Nonetheless, there are clearly enough legal avenues to pursue in the case of clipper legislation that the technology would be long obsoleted before it ever made it out of litigation, this is more than likely the reason for the presently preferred strategy of the administration.

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