We won the case in U.S. District Court and the judge there, Marilyn Hall Patel ruled that the export laws were unconstitutional as they applied to cryptographic source code. The government has appealed and we had a hearing in December in the Court of Appeals here in San Francisco, so we’re still waiting on the decision from the Court of Appeals.

BORLAND: What does the outcome of this case mean to the average Internet user?
GILMORE: If we win the case, what it'll mean is that researchers and companies are free to publish cryptographic software. What this will really mean is that you'll be able to get products that have much better security, much better privacy protection, much better authenticity, and are more resistant to security break-ins, viruses and such.

BORLAND: For somebody who’s not doing anything that’s particularly secret, why should they need strong encryption?

"The only reason that people consider [e-mail] private is because there's so much traffic flowing through, they figure, nobody will be looking at me. But computers are getting better and better at looking at large amounts of data and filtering out what somebody wants to see."

GILMORE: Actually, it's hard to tell whether what an individual is doing is secret or not. For example, people have noticed that the Pentagon was gearing up to fight a war by watching the pizza deliveries in the Washington area and noticing that there were lots of pizzas being delivered to the Pentagon late at night. Those pizza guys probably thought that what they were doing was not all that important, but if somebody, if foreign governments were monitoring their communications, they would know.

BORLAND: Is this important then, for just regular folks?
GILMORE: Yeah, regular folks write love letters, regular folks talk to their kids. In the next few years, regular folks will probably be swapping video mail back and forth with their grandchildren. I think regular folks have an expectation of privacy and at the moment, it's hard to actually believe that these things are private.

The only reason that people consider them private is because there's so much traffic flowing through, they figure, nobody will be looking at me. But computers are getting better and better at looking at large amounts of data and filtering out what somebody wants to see. C O N T I N U E D . . . 2 of 2
BORLAND: In the Bernstein case, the government’s policy has already once been declared unconstitutional. Are you worried at all that in Congress, you may get something that is a compromise, and may not turn out as well as the court case itself?
GILMORE: Actually, it's been declared unconstitutional twice. First, the State Department rules, and then the Commerce Department rules, were both declared out of order by the District Court. There is some concern that Congress will pass some more foolish legislation, but actually, I think if we win the Bernstein case it will make it much harder for any such legislation to survive the courts.

BORLAND: FBI director Louis Freeh argues that it's important to have some kind of back door for law enforcement, so they have the ability to read the messages of terrorists, drug dealers, kidnappers, and that sort of real bad folk. What’s wrong with this argument?

"Winning the Communications Decency Act case was a big validation. It basically said, 'What you guys have been saying all along for the last five or six years, was right. Free speech does matter, and the constitution does protect speech on the Internet.'"

GILMORE: First, the number of crimes that are solved with wire taps, which is what he’s talking about, is a tiny, tiny, tiny fraction of the crimes that are committed and solved in the United States every year. If all thousand wire taps that are legally authorized every year were eliminated, the amount of crime in the United States would go up by .00001 percent. So, I think if you just look at the numbers, the argument is foolish.

But second, one of the strongest partisans for Freeh’s side of the case, professor Dorothy Denning, took a look with the man who used to be No. 2 at the FBI, William Baugh, last year, and did a large survey with the cooperation of the FBI, of all cases where encryption had been found in a criminal case. What actually happened? How did the case come out?

What they found was there was not a single case where encryption had prevented the successful prosecution of criminals. In some cases, they had to find other kinds of evidence. In some cases, the plain text was lying around on a disk next to the encrypted text. In some cases, there were other obvious crimes that the same people had committed and they were convicted on those crimes. But in all cases, the people who did bad things are behind bars, whether or not encryption was used.

BORLAND: As this stuff moves into the mainstream, as this becomes the tool for electronic commerce rather than a hobby for lots of folks, are groups like the Cypherpunks still relevant?
GILMORE: Sure, it goes back to the old Hunter S. Thompson adage, "When the going gets weird, the weird turn pro." So, a number of Cypherpunks have started companies, and are actively involved in securing the Web and securing other parts of the infrastructure.

BORLAND: You’ve been one of the foremost advocates of privacy and anticensorship on the Net. Have things improved in the last few years?
GILMORE: I think things have improved. Yeah, I mean winning the Communications Decency Act case was a big validation. It basically said, "What you guys have been saying all along for the last five or six years, was right. Free speech does matter, and the constitution does protect speech on the Internet."

I think we’re also getting a lot of support in the privacy and cryptography fight too. I think the mainstream position in society as well as the declared position of the courts is moving in our direction. So, none of these battles are over, but I think that in a sense we’re leading the way, in the sense that the people are following behind us, as opposed to going off in some other direction.