Cryptography Reference
In-Depth Information
Lessig and others argued that such code constitutes a “Lex Informatica”
unto itself, “the set of rules for information flows imposed by technology
and communication networks.”
5
For regulators to devise effective cyber-
space policies, the normative implications of code writing and information
technology design must be consciously recognized, harnessed, and harmo-
nized with market forces, social norms, and law.
In this analysis, cryptography holds a unique role. If software architec-
ture, hardware design, or protocols induce constraints on cyberspace as
side effects of their primary engineering purposes (say, the delays ass-
ociated with Internet packet switching), cryptography is code
created with
the sole purpose of regulating behavior
. Cryptographic technologies are
specifically designed to provide confidentiality, authentication, anonym-
ity, accountability—in short, to implement the locks and keys of cyber-
space architecture. In Lessig's vision, this granted cryptography an
extraordinary role in the building of the Information Society: “Here is
something that will sound very extreme, but is at most, I think, a slight
exaggeration: encryption technologies are the most important technologi-
cal breakthrough in the last one thousand years. No other technological
discovery—from nuclear weapons (I hope) to the Internet—will have a
more significant impact on social and political life. Cryptography will
change everything.”
6
Indeed, the early days of cyberlaw saw much discussion of cryptogra-
phy export controls, key escrow, and other assorted topics relative to
ensuring freedom of encryption.
7
As the Internet gradually mutated from
a scientific research network into a commercial one, the focus shifted to
encryption's less controversial sibling, digital signatures. Sustained growth
of e-commerce, it was claimed, depended on consumers trusting that
effective technologies and a clear legal framework could guarantee the
security of electronic transactions. Conveniently, public-key technologies
provided precisely the required infrastructure. Their deployment demanded
only that evidence law statutes be modernized to grant admissibility and
legal value to electronic records and signatures—with perhaps some eco-
nomic incentives thrown in to jump-start the necessary infrastructural
investments.
Yet there were good reasons to believe that reform might proceed less
straightforwardly than the previous scenario suggested. In both common
and civil law, the rules of evidence have, over centuries, coevolved together
