Encryption Regulation in the Wake of September 11, 2001: Must We Protect National Security at the Expense of the Economy?

I. INTRODUCTION II. HISTORY OF ENCRYPTION A. What Is Encryption? B. Background on Encryption C. Recent Encryption Advancements D. Use of Encryption by Business and the Service Industry E. Use of Encryption by Terrorist Organizations III. ENCRYPTION REGULATION OVER THE LAST DECADE A. The Struggle Between National Security and an Evolving Global Economy B. Regulation of Encryption Through Export Restrictions C. Attempts to Regulate Encryption Domestically IV. THE EFFECT OF ENCRYPTION REGULATIONS: WOULD REGULATIONS STOP TERRORISM OR HURT THE ECONOMY? V. LEADING THE WAY WITH ITS MAGIC LANTERN: DOES NEW TECHNOLOGY DEVELOPED BY THE FEDERAL BUREAU OF INVESTIGATION SOLVE THE ENCRYPTION PROBLEM? A. What Is Magic Lantern and How Does It Work? B. Magic Lantern Works: Case in Point C. What Are the Implications of Magic Lantern? D. Magic Lantern: Shining a Light on a New Solution VI. CONCLUSION I. INTRODUCTION "This is our greatest fear, that, one day, a terrorist attack will succeed because law enforcement could not gain immediate access to the plaintext of an encrypted message...." (1) The Federal Bureau of Investigation ("FBI") identified Zacarias Moussaoui as a possible "last-minute" substitute and likely the twentieth hijacker in the September 11 atrocity. (2) After training at one of Osama bin Laden's terrorist camps in Afghanistan, Moussaoui moved to London a year before the attack. Ramzi Bin al-Shibh, an al Qaeda member, flew to London immediately before Moussaoui left for his mission. (3) Al-Shibh, who roomed in Germany with Mohamed Atta, the mastermind of the September 11 attacks, tried to obtain an American visa four times between May and October but was denied each time. (4) Needing a replacement, al-Shibh is thought to have briefed his close friend, Moussaoui, of the situation. Moussaoui is believed to have then traveled to the United States in al-Shibh's place. (5) Once in the United States, Moussaoui deposited $32,000 in cash into a new bank account and began taking flying lessons in Norman, Oklahoma. (6) Later, Moussaoui received $14,000 from al-Shibh who also had wired money to Marwan al-Shehhi, (7) Atta's nephew and the terrorist who piloted United Airlines Flight 175 into the South Tower of the World Trade Center. (8) Given all this, it was not until Moussaoui moved to Minneapolis, Minnesota, that warning bells started to ring. Moussaoui enrolled at the Pan Am International Flight Academy in Minneapolis to be trained in flying the bigger jumbo jets, (9) specifically 747s. (10) While training on simulators at the flight school, he informed his instructors that "[h]e wanted to concentrate only on the midair turns, not the takeoffs and landings." (11) The flight school notified the FBI about this suspicious behavior, and that agency later arrested Moussaoui for remaining in the United States on an expired visa. (12) Although the FBI ,arrested Moussaoui, who otherwise might have been a pilot in the September 11 attacks, authorities failed to detect the other terrorists. The U.S. authorities failed to discover Mohamed Atta, Waleed al-Shehri, Wail al-Shehri, Abdulaziz al-Omari, and Satam al-Suqami, who flew American Airlines Flight 11 into the North Tower of the World Trade Center. (13) Similarly, they failed to detect Ahmed al-Ghamdi, Marwan al-Shehhi, Fayez Ahmed, Mohald al-Shehri, and Hamza al-Ghamdi, who hijacked and aimed United Airlines Flight 175 into the South Tower of the World Trade Center. (14) Authorities never discovered terrorists Khalid al-Mihdhar, Nawaq al-Hamzi, Hani Hanjour, Salem al-Hamzi, and Majed Moqed, who directed American Airlines Flight 77 into the Pentagon, (15) or Saeed al-Ghamdi, Ziad al-Jarrah, Ahmed al-Nami, and Ahmed al-Haznawi, who commandeered United Airlines Flight 93 that crashed in Pennsylvania, but allegedly attempted to hit the White House. …