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STATEMENT BY PHYLLIS SCHLAFLY
TO THE SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTY
OF THE HOUSE COMMITTEE ON THE JUDICIARY
March 20, 1997
My name is Phyllis Schlafly. I'm president of Eagle Forum, a national volunteer
organization concerned with public policymaking on many issues, including constitutional
issues. Thank you for inviting me to present our views on H.R. 695 and cryptography.
Our home page on the Internet is at www.eagleforum.org.
Advances in computer technology have been wonderful in so many ways, but they are also
constantly eroding our personal privacy. Massive databases are now keeping track of our
phone numbers, addresses, income, credit records, medical histories, and purchases. With
everything connected to the Internet, the only way to keep our information private is to
avoid computers (which is impossible), or to encrypt it.
Encryption should be recognized as a fundamental right. I believe that our right to speak
in private (whether in English, a foreign language, or in code) is protected by the First
Amendment to the U.S. Constitution, and that the government cannot regulate or limit that
right without seriously eroding our fundamental civil liberties.
I thank Congressman Goodlatte and the other sponsors of this bill for recognizing that our
rights of free speech are endangered by the Justice Department. It is a sad day to think
that Americans might need permission from Congress to have a private conversation! It
should not be necessary for Congress to pass a law declaring that encryption is lawful.
The problem is that Attorney General Janet Reno and FBI Director Louis Freeh are giving
speeches advocating the regulation of cryptography and giving the government access to
our computer messages. They repeatedly demand that the government be able to get a key
to our telephones and computer systems.
Mr. Freeh even says that encryption poses a "threat to public safety." On the contrary, the
threat to public safety comes from the lack of encryption and the demands of Justice
Department officials to have a key so they can read our private messages.
Are we worried about the Justice Department abusing its power to eavesdrop on our
computer messages? You bet we are. The misbehavior of the FBI in so many areas, and
the coverups that followed, have been shocking to Americans who like to support law-and-order. The FBI abuses are such that, to give the FBI access to our computer messages
would be a long, dangerous step toward making America a totalitarian state.
We are also very concerned that a ban on "mandatory key escrow" might not preclude the
government from other coercive key escrow plans, deceptively called "voluntary." The
Federal Government is notorious for using all sorts of weapons, including intimidation and
funding incentives, to make something mandatory while they are loudly proclaiming it to
be "voluntary." The right of the individual to privacy would be meaningless if the
telephone companies "voluntarily" agree to key escrow.
I believe it is not only important to recognize that encryption is a right of free speech, but
also that encryption is a good thing, not a bad thing or a criminal thing. We are very
opposed to the criminal penalties in this bill. It is doubtful that Congress even has the
constitutional authority to criminalize encryption.
Let's take an example. It is, of course, lawful to use opaque envelopes. Would it make
sense to legislate five years in federal prison for using opaque envelopes in connection with
a crime? Would it stop the problem of bad checks if we were all forced to mail our checks
in transparent envelopes? We should punish criminals for actual crimes, not for auxiliary
activities that are entirely lawful and proper. We don't want to move toward a nation in
which any state crime becomes a federal felony merely because a computer, telephone, or
other electronic device is involved.
We object strenuously to the current trend toward federalizing crimes. This is offensive to
our constitutional system of federalism. Considering the present status of judicial activism,
Congress should be removing jurisdiction from the federal courts, not adding to their
jurisdiction.
We object to the implication that encryption is somehow suspect. Strong encryption is one of the greatest achievements of the information age. It means we will be able to talk on the telephone with assurance that no one is
eavesdropping. It means we can exchange E-mail, make purchases, and invest our money
in privacy, because snoops cannot decode data traffic even if they gain access to a network.
It should be the policy of the United States to encourage wide dissemination of strong
encryption technology. I thank the sponsors of H.R. 695 for recognizing the vital
importance to individuals of unrestricted cryptography, and I hope the bill will be
amended to remove criminal deterrents to using cryptography.
Phyllis Schlafly is president of Eagle Forum, 316 Pennsylvania Avenue, S.E., Washington,
D.C. 20003, (202) 544-0350.
Neither Phyllis Schlafly nor Eagle Forum, nationally or any of our chapters, has ever
received any federal funding.
Eagle Forum is a national conservative, pro-family organization with 80,000 members and chapters in every state. Mrs. Schlafly is the author of 16 books, the monthly Phyllis Schlafly Report, a syndicated columnist, and her radio commentaries are heard on more than 300 stations. A graduate of Washington University, Harvard University, and Washington University Law School, she is admitted to the practice of law in Missouri, Illinois and the District of Columbia.