Theories of Interpretation Hypo

By Haeji Hong

The Congress decided to pass a new law enacting the Clipper Chip into the Internet. The Clipper Chip is an encoding key that would help business world secure their transactions. The federal statute provided that although anbody may use the encoding key, a government agency will hold a decoding key to make sure there's no criminal activity occurring. In addition, the act provided that people MUST use the Clipper Chip for encoding; all other encoding keys are illegal.

"This Act provides for the use of Clipper Chip as the only encoding and decoding key for use on the Internet. Use of any other devices for purposes of encryption or decryption is strictly forbidden. A federal agency shall be created in order to hold a back-up decryption key. The agency's purpose is to provide enforcement agency with decryption key if the enforcement has 1) search warrant issued by the court 2) strong probable cause for suspecting criminal activity 3) and the evidence cannot be obtained otherwise."

CA state has also enacted a similar statute. However, CA statute does not make the use of other devices illegal. Otherwise the wording of the statute is exactly identical.

A civil right activist from EFF (Electonic Frontier Foundation) decided that neither of these statutes are Constitutional. Maddy decided that she was going to test both of them. So, she spent an entire day fabricating a suspicious looking documents, encoding in a foreign encryption key, and sending to non-existent email accounts. She was arrested for criminal activites the next day. Needless to say, both state and federal governments decoded her documents believing she was in a massive conspiracy to kill the President.

She has brought suit in both state and federal court. She is alleging that neither statutes are Constitutional. Give her arguments and government's arguments.
1) Analyze the statutes and the Bill of Rights by textualist's, originalist's, contextualist's, and legal realist's views.
2) Look to the Constitution; keep in mind about the Commerce Clause, Congressional jxn, foreign relations, Necessary and Proper Clause, and police powers.

CA legislators claim that this is state jxn. The Congress has overstepped the boundaries of federalism by enacting a legislature with police powers which should've been left for the states. Furthermore, since this is state power, none of the federal court has jurisdiction to hear this case. (o.k. this is far-fetched...gimme a break) The Supreme Court cannot review this case b/c 1) this is state actions that has no fed. question 2) political doctrine of justiciability dictates that Supreme Court stay out of state matters.

Give State govt's arguments--expanding on above arguments and/or providing better arguments.
Point out the flaws in state govt's arguments and the misunderstanding of the doctrine of justiciability.
Give Fed. govt's arguments.


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