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notes to chapter five

(New Haven: Yale University Press, 1997), 3243. For a sample of various views, see Kirsten
Scheurer, The Clipper Chip: Cryptography Technology and the Constitution, Rutgers Computer and Technology Law Journal 21 (1995): 263; cf. Howard S. Dakoff, The Clipper Chip
Proposal: Deciphering the Unfounded Fears That Are Wrongfully Derailing Its Implementation, John Marshall Law Review 29 (1996): 475. Clipper was adopted as a federal information-processing standard for voice communication in 1994; see Gurak, Persuasion and
Privacy in Cyberspace, 125.
18. See Electronic Frontier Foundation (EFF), Cracking DES: Secrets of Encryption
Research, Wiretap Politics, and Chip Design (Sebastopol, Cal.: Electronic Frontier Foundation,
1998), ch. 1.
19. For a good summary of the Clipper scheme, see Baker and Hurst, The Limits of
Trust, 1518; A. Michael Froomkin, The Metaphor Is the Key: Cryptography, the Clipper
Chip, and the Constitution, University of Pennsylvania Law Review 143 (1995): 709, 75259.
For a more technical discussion, see Bruce Schneier, Applied Cryptography: Protocols, Algorithms, and Source Code in C, 2d ed. (New York: Wiley, 1996): 59193.
20. See Richard Field, 1996: Survey of the Years Developments in Electronic Cash Law
and the Laws Affecting Electronic Banking in the United States, 46 American University
Law Review (1997): 967, 993, n.192.
21. See A. Michael Froomkin, It Came from Planet Clipper: The Battle over Cryptographic Key Escrow, University of Chicago Legal Forum 1996 (1996): 15, 32.
22. Anick Jesdanun, Attacks Renew Debate Over Encryption Software, Chicago Tribune, September 28, 2001, available at link #31.
23. Jay P. Kesan and Rajiv C. Shah, Shaping Code, 18 Harvard Journal of Law and Technology 319, 32627 (2005).
24. Former Attorney General Richard Thornburgh, for example, has called a national ID
card an infringement on rights of Americans; see Ann Devroy, Thornburgh Rules Out
Two Gun Control Options; Attorney General Objects to Registration Card for Gun Owners,
National Identification Card, Washington Post, June 29, 1989, A41. The Immigration Reform
and Control Act of 1986 (Public Law 99603, 100 Stat 3359 [1986], 8 USC 1324a[c] [1988])
eschews it: Nothing in this section shall be construed to authorize directly or indirectly, the
issuance or use of national identification cards or the establishment of national identification
cards. Given the power of the network to link data, however, this seems to me an empty protection. See also Real ID Act, Pub. L. No. 10913, Title II 202 (2005). The Real ID Act
requires citizens to go to the DMV in person, bringing with them several pieces of identification to the DMV, including birth certificates, and face consumers with higher fees and
tougher background check. Supporters feel the act targets the link between terrorists, illegal
immigrants, and identification standards.
25. Jack Goldsmith and Timothy Wu, Digital Borders, Legal Affairs, Jan./Feb. 2006, 44.
26. Notice that this would be an effective end-run around the protections that the Court
recognized in Reno v. American Civil Liberties Union, 117 SCt 2329 (1997). There are many
activities on the Net that Congress could easily regulate (such as gambling). Regulation of
these activities could require IDs before access to these activities would be permitted. To the
extent that such regulation increases the incidence of IDs on the Net, other speech-related
access conditions would become easier to justify.
27. Arthur Cordell and T. Ran Ide have proposed the consideration of a bit tax; see
Arthur J. Cordell et al., The New Wealth of Nations: Taxing Cyberspace (Toronto: Between the
Lines, 1997). Their arguments are compelling from the perspective of social justice and economics, but what they do not account for is the architecture that such a taxing system would
require. A Net architected to meter a bit tax could be architected to meter just about anything.