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Legal Issues with Cryptography

The use of cryptography has traditionally been associated with military intelligence gathering and its use by criminals and terrorists has the potential to make law enforcement harder. Hence it should come as no surprise that governments tend to restrict its use. Other legal issues are patent related and arise due to the complex mathematical nature of the algorithms involved. Inventors of these algorithms tend to protect their intellectual property by patenting them and requiring that the user obtain a license.

All in all, the legal issues with cryptography fall into the following three categories:

  1. Export Control Issues. The US government treats certain forms of cryptographic software and hardware as munitions and has placed them under export control. What it means is that a commercial entity seeking to export certain cryptographic libraries or other software using these libraries must obtain an export license first. In recent years, the export laws have eased somewhat and it has become possible to export freely a number of commercial grade cryptographic software packages. Most of the software and capabilities included in J2SE v1.4 falls under this category. However, it is possible to have a JCE provider with capabilities that warrant review by export control authorities and perhaps, an export license. A practical manifestation of this fact is that a vendor of JCE provider must get export clearance.

  2. Import Control Issues. Somewhat less intuitive is the fact that certain countries restrict the use of certain types of cryptography within their jurisdiction. Under the jurisdiction of these countries, it is the responsibility of the user to ensure proper adherence to the law. J2SE v1.4 handles this by tying cryptographic capabilities to jurisdiction policy files. The jurisdiction files shipped with the J2SE v1.4 allow "strong" but "limited" cryptography by limiting the size of keys and other parameters. Those in the US must download and install separate policy files to be able to use "unlimited" capabilities.

  3. Patent Related Issues. To avoid lawsuits related to patent infringement, it is recommended that you either use algorithms that are not patented, whose patents have expired, that are licensed for royalty free use or whose license you have obtained. The patent on RSA, the de-facto public key cryptography, was a big inhibitor for the wide spread use of public key cryptography before it expired in 2000. Algorithms available within J2SE v1.4 are either unencumbered from patent issues or are licensed royalty-free for use.

These are only broad guidelines that you must consider before deploying solutions using cryptographic components. Most of the time, it is the vendor of the security products who has to worry about these, but don't take chances. Extra care is required if you plan to use open source software freely available for download over the Internet, as you don't have the vendor to do the homework for legal compliance. When in doubt, consult legal counsel for proper guidance.

Notwithstanding, anything stated in this section or in the whole book, the author and publisher take no responsibility for any legal consequences resulting from following the advice offered or using any of the security techniques in this book. The laws regulating cryptography are complex, jurisdiction-dependent and keep changing all the time. It is your responsibility to ensure that you remain within the four walls of the law.

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