6 September 1997
Source: Mail list cypherpunks@cyberpass.net
See Tim May's The Crypto Anarchist Manifesto and Cyphernomicon
See related Junger v. Daley crypto suit
Date: Sat, 6 Sep 1997 09:41:38 -0700
To: cypherpunks@Algebra.COM
From: Tim May <tcmay@got.net>
Subject: A helluva way to run a country, er, a world
Sender: owner-cypherpunks@cyberpass.net
At 7:54 AM -0700 9/6/97, Syniker@aol.com wrote:
>In a message dated 97-09-06 07:15:18 EDT, vznuri@netcom.com (Vladimir Z.
>Nuri) writes:
>
><< maybe I'm not following closely enough, but I haven't seen a *single*
> reference. that's really eerie. can't we get a *single*
> senator to bring up that issue? >>
>
>me neither... it's fucking mind-boggling....
>and where's all the 'censorship' people????
>it's like -- no one can make the 'connection' ....
>the CDA and FCA lists are dead ... not a word ...
>how can we all have wet powder at the same time?
I didn't see Detweiler's original message ('til just now), but I think this
is wrong, the "I haven't seen a *single* reference" (to the
constitutionality of mandatory key escrow).
In some of the accounts of the Freeh-Feinstein-etc. colloquy, there were
mentions that mandatory key escrow probably would be desirable, but
probably not be possible. (I took this to mean they, including Freeh,
recognized it would be unconstitutional).
Of course, then the draft text of the GAK bill floated by the next day, and
it of course contained no references to constitutionality (not
surprisingly, as draft bills are not self-analyses).
Despite my cynicism, I'd expect the courts to issue an immediate stay on
enforcement on such a law, as happened with the CDA. With probably an
expedited hearing before the Supreme Court. As so many have noted, it seems
to be a slam dunk infringement on the right to speak freely and in whatever
language one wishes. And some 4th and 5th and other involvements.
It may be a stalking horse. A threat. Designed to force a compromise. "If
you don't pass McCain-Kerrey, this is what you'll get."
A helluva way to run a country, er, a world.
But look on the bright side: the militias and other patriot groups are
getting a huge bounce out of this. Stay far away from the nests of vipers.
Jefferson's wisdom that we need a revolution every generation or so is
apt...though it's been about 180 years too long.
Now even those, like Sternlight, who claimed the government would never
require key escrow, have to admit we were right all along.
--Tim May
There's something wrong when I'm a felon under an increasing number of laws.
Only one response to the key grabbers is warranted: "Death to Tyrants!"
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May | Crypto Anarchy: encryption, digital money,
tcmay@got.net 408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA | knowledge, reputations, information markets,
Higher Power: 2^1398269 | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."
To: Cypherpunks <cypherpunks@cyberpass.net>
Subject: Re: A helluva way to run a country, er, a world
Date: Sat, 06 Sep 1997 14:48:02 -0400
From: "Peter D. Junger" <junger@upaya.multiverse.com>
I am not sure how serious the proposed FBI-backed bill is. It may
just be intended as a bargaining chip. Or perhaps its sponsors are
as clueless about contitutional law as they are about cryptography and
how computers work.
It is conceivable that the courts might uphold (a carefully drafted)
law regulating the _use_ of cryptographic software, but the proposed
bill does not do that. Instead it provides:
(b) As of January 1, 1999, it shall be unlawful for any
person to manufacture for sale or distribution within
the U.S., distribute within the U.S., sell within the
U.S., or import into the U.S., any product that can be
used to encrypt communications or electronic
information, unless that product:
(1) includes features, such as key recovery, trusted
third party compatibility or other means, that
(A) permit immediate decryption upon receipt of
decryption information by an authorized party without
the knowledge or cooperation of the person using such
encryption product; and
(B) is either enabled at the time of manufacture,
distribution, sale, or import, or may be enabled by the
purchase or end user; or
(2) can be used only on systems or networks that include
features, such as key recovery, trusted third party
compatibility or other means, that permit immediate
decryption by an authorized party without the knowledge
or cooperation of the person using such encryption
product.
But notice that the ``products'' that are described here are actually
software, are computer programs. (I suppose that some products could
be physical devices with the programs hard-wired or in firmware, and
to the extent that there are such devices the following analysis may
not be applicable.)
Now, although it is possible that Judge Freeh and Senator Feinstein are
not aware of the fact, computer programs are written and published, and
they certainly are not ``manufactured'' in any accepted meaning of that
word, and their writing and publication is---as Judge Patel just held
once again---protected by the First Amendment to the United States
Constitution like any other writing or publication. It may, as I said,
be possible under the Constitution to regulate the use of cryptographic
software, but to forbid the publication (distribution, sale, or import)
of software because its content is unpleasing to the government is a
blatant violation of the First Amendment.
Yet the draftsmen of the Bill do not purport to regulate the use of
cryptographic software, they only purport to forbid its publication.
Which I find strange.
What I also find strange is that the ardent opponents of the CDA do
not seem much disturbed by such a proposed violation of the First
Amendment, or by the present constitutional violations embodied in the
``export'' regulations on encrption software that are being challenged
in the _Bernstein_ and _Junger_ cases. Somehow those who care about
the right of programmers to express their ideas and to publish the
software that they write have failed miserably in explaining to the
public, including those organizations that have traditionally been
concerned with protecting civil liberties, that programs are written
and published like any other text.
Part of the problem may be that those who publish software
commercially would rather be thought of---and regulated
as---manufacturers. The last thing that they want is for people to
start claiming a first amendment right to read their programms and to
copy the ideas, or criticize the expression of the ideas, that are
buried there. To the software moguls ``free speech'' must sound an
awful lot like ``free software''. And, however distasteful they may
find the proposed legislation, it at least has the virtue of making it
illegal to import or distribute Linux. And the nice thing about
regulations of the sort proposed is that they raise insurmountable
barriers for any competitor who hopes to enter the market place for
computer software.
Another reason that there may not be so much concern among traditional
civil libertarians about the First Amendment implications of this
proposed crypto legislation or of the export regulations on encryption
software is that---as hard as it may be for the denizens of this list
to comprehend---they are simply not interested in cryptography.
But the constitutional issues raised by the proposed bill and the
export regulations on cryptographic software implicate all software,
not just encryption software. For whatever else it may be, all
software is functional, and the government's argument comes down to
the claim that they can censor software because it is functional and
that ``functionality'' is not protected by the First Amendment. Thus,
according to the arguments that have been made by the President
himself, it would be perfectly constitutional for the government, in
order to encourage efficiency and interoperability, to forbid the
publication of any software that does not comply with the Windows 95
``standard''.
Here is what President Clinton had to say when he transferred the
regulation of cryptographic software from the Department of State to
the Department of Commerce:
Because the export of encryption software, like the export of other
encryption products described in this section, must be controlled
because of such software's functional capacity, rather than because
of any possible informational value of such software, such software
shall not be considered or treated as ``technology,'' as that term is
defined in section 16 of the EAA (50 U.S.C. App. 2415) and in the EAR
(61 Fed. Reg. 12714, March 25, 1996)[.]
Don't you find that rather frightening?
--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu
NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists
--------------------------------------------------------------------------