From: Duncan Frissell <76630.3577@CompuServe.COM>
Date: Sat, 17 Apr 93 20:55:09 PDT
To: <cypherpunks@toad.com>
Subject: 1st Amendment Clipped?
Message-ID: <930418035104_76630.3577_EHK38-1@CompuServe.COM>
MIME-Version: 1.0
Content-Type: text/plain


Potential First Amendment problems with an encryption ban --
 
Let's assume that the Clinton administration bans non-Clipper encryption
technology.
 
I then transmit the following and am arrested --
 
-----BEGIN PGP MESSAGE-----
Version: 2.2
 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=i5Mq
-----END PGP MESSAGE-----
 
Won't the prosecution be embarrassed when I decrypt it in court and present
the plaintext:
 
      1st Amendment
      Congress shall make no law respecting an establishment of
      religion, or prohibiting the free exercise thereof; or abridging
      the freedom of speech, or of the press; or the right of the
      people peaceably to assemble, and to petition the government for
      a redress of grievances.
 
 
I don't see how the mere fact of encryption itself fits a message into one of
the 1st amendment exceptions -- pornography, national security, libel, etc.
 
Since it is easy to establish in information theory that a cyphertext is a
form of *information* itself and not just a *means* of transmitting the
information contained in the plaintext, outlawing the encryption of plaintext
because the algorithm is unapproved is classic censorship of a writing
*because* of its content.
 
Additionally, there are several types of communications that cannot legally be
wiretapped.  These would include lawyer-client and husband-wife as well as
certain others.  Since the privacy of these communications requires that you
make an effort to keep them private, you could argue that in these cases the
use of secure encryption is legally required.
 
The crypto-fascists have used these sorts bluffs ever since the late 1920s
when someone was discouraged from publishing a history of the State
Department's code office.  The NSA also threatened to lock up the developers
of the RSA encryption system if they published "A Proposal for a Public Key
Encyption System" in the Proceedings of the IEEE in 1977.  They published
anyway and are still walking around.
 
Don't let them bluff anyone again.  It is neither legally nor technically
possible to ban secure cryptography.
 
Duncan Frissell