TOM BEARDEN: I know you don't want to see it as part and parcel of the same thing, but there are people out there who see the encryption issue and law enforcement as inextricably intertwined. One particular quote I'd like to run by you to see what you would say to it is that the government's policy that it is pursuing as far as escrow keys, and access to people's encrypted data is the equivalent of strip searching everybody on the street corner to make sure they don't have weapons, and it goes way too far. What about that criticism?

MIKE VATIS: That's just a fundamentally mistaken quote because the government's encryption policy would not give the government any new authorities to engage in any searches or surveillance that it doesn't currently. The government would not be able to search somebody's stored data or wire tap their communications unless it had a court order which was issued by an independent judge who made a finding that the government had probable cause to believe that a crime was being committed.

What the government is trying to do.

So the fundamental constitutional and statutory protections that exist now would exist then. All the government is trying to do is ensure that the technology that's out there now that allows people to encrypt their communications in a way that makes it impenetrable to law enforcement, that that technology doesn't effectively deprive us of our existing authorities by making a court order meaningless, because if we get a wire tap order now, for example, to wire tap an organized crime group and they are using unbreakable encryption, well, a judge can sign an order authorizing us to engage in the wire tap, but the encryption makes that order meaningless.

Do we want technology to really overthrow our constitutional system that has struck a balance between privacy and public safety, or do we want to maintain that balance that we have with the new technology?

Now, people may say that key escrow doesn't make sense for technical reasons, or for cost reasons or other reasons, and that debate is ongoing now, and it's a tough one. But I would challenge people who criticize key escrow to offer us some other means of preserving law enforcement's ability to protect public safety. If it's not key escrow, then what?

We're unwilling to throw up our hands and say this is too difficult a problem and so we're just going to have to give up on our fight against terrorists, and drug traffickers, and child pornographers, and other people who can use an encryption as a way to shield their activities from law enforcement.

TOM BEARDEN: They've told us that the cat's already out of the bag, that you can't preserve what law enforcement has had in the past, that the bad guys are going to use strong encryption because it's out there and there really isn't anything anybody can do about it.

Encryption: Is the "cat" out of the bag?

MIKE VATIS: Well, I think if that were truly the case, then we wouldn't be having such a vitriolic debate right now, because no one would be worrying about it. We'd be worrying about other things.

The fact of the matter is that there is very strong encryption out there, but it won't be used in a widespread way until there is an infrastructure that allows people to communicate easily in encrypted form with each other.

So there still is an opportunity, I think, for us to affect how encryption is used and whether it does preserve law enforcement's ability as a general matter to perform its law enforcement and public safety mission.

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