From: fergp@sytex.com (Paul Ferguson)
Date: Tue, 25 May 93 11:46:18 PDT
To: cypherpunks@toad.com
Subject: Bill O' Rights
Message-ID: <J6a54B1w165w@sytex.com>
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I remember reading this in the March ACM and thinking,"Man. He hit
that right on the head." When I ran across this transcript in Computer
Select earlier this morning (while looking for various encryption
products, no less), I thought those of you who had not already seen it
would be struck by John Perry's insights. BTW, I also have the full
transcripts of Dorothy Denning's, William A. Bayse's (Assistant
Director, FBI Technical Services Division) and Lewis M. Branscomb's
(Harvard University) articles which appeared in the same issue with
regards to Digital Telephony, if anyone cares for me to post them.
Looking back on the progression of events, beginning with the debate
of the Digital Telephony proposal and subsequently the proposal
currently (officially) referred to as the "Key Escrow" Chip (and its
associated escrow scheme), I can't help but surmise that the whole
ball of wax is geared towards allowing the Government the ability to
effectively eavesdrop on its citizens communications in the face of
advancing technology, without regard to privacy matters.
 
8<---- Begin forwarded text ---------
 
Journal:    Communications of the ACM  March 1993 v36 n3 p21(3)
* Full Text COPYRIGHT Association for Computing Machinery Inc.1993.
----------------------------------------------------------------------
Title:    Bill o' rights. (impact of technology on basic civil rights;
          humor) (Electronic Frontier)
Author:   Barlow, John Perry
 
 
----------------------------------------------------------------------
Full Text:
 
*Note*    Only Text is presented here; see printed issues for graphics.
 
It has been almost three years since I first heard of the Secret Service
raids on Steve Jackson Games and the cyberurchins from the Legion of
Doom.  These federal exploits, recently chronicled in Bruce Sterling's
book Hacker Crackdown, precipitated the formation of the Electronic
Frontier Foundation and kicked loose an international digital liberties
movement which is still growing by leaps and conferences.
 
I am greatly encouraged by the heightened awareness among the citizens
of the Global Net of our rights, responsibilities, and opportunities.
I am also heartened that so many good minds now tug at the legal,
ethical, and social riddles which come from digitizing every damned
thing.  The social contract of Cyberspace is being developed with
astonishing rapidity, considering that we are still deaf, dumb, and
disembodied in here.
 
Meanwhile, back in the Physical World, I continue to be haunted by the
words of the first lawyer I called on behalf of Steve Jackson, Phiber
Optik, and Acid Phreak back in the spring of 1990.  This was Eric
Lieberman of the prestigious New York civil liberties firm Rabinowitz,
Boudin, Standard, Krinsky, and Lieberman.  I told him how the Secret
Service had descended on my acquaintances and taken every scrap of
circuitry or magnetized oxide they could find.  This had included not
only computers and disks, but clock radios and audio cassettes.
 
I told him that, because no charges had been filed, the government was
providing their targets no legal opportunity to recoup their confiscated
equipment and data.  (In fact, most of the victims of Operation Sun
Devil still have neither been charged nor had their property returned to
them.)
 
[This issue has been somewhat resolved with the recent ruling in
 favor of Steve Jackson and the subsequent award of damages.]
 
The searches were anything but surgical and the seizures appeared
directed less at gathering evidence than inflicting punishment without
the bothersome formality of a trial.  I asked Lieberman if the Secret
Service might not be violating the Fourth Amendment's assurance of "The
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures."
 
He laughed bitterly.  "I think if you take a look at case law for the
last ten years or so, you will find that the Fourth Amendment has
pretty much gone away," he said.
 
I did.  He was right.  A lot of what remained of it was flushed a year
later when the Rehnquist Court declared that in the presence of
"probable cause" ...a phrase of inviting openness...law enforcement
officials could search first and obtain warrants later.
 
Furthermore, I learned that through such sweeping prosecutorial
enablements as RICO and Zero Tolerance, the authorities could entract
their own unadjudicated administrative "fines" by keeping much of what
they seized for their own uses.
 
(This incentive often leads to disproportionalities between "punishment"
and "crime" which even Kafka might have found a bit over the top.  I
know of one case in which the DEA acquired a $14 million Gulfstream
bizjet from a charter operator because one of its clients left half a
gram of cocaine in its washroom.)
 
I tried to image a kind of interactive Bill of Rights in which
amendments would fade to invisibility as they became meaningless, but
I knew that was hardly necessary.  The citizens of Stalin's Soviet
Union had a constitutional guarantee of free expression which
obviously, like our own, allowed some room for judicial
interpretation.
 
It occurred to me then that a more honest approach might be to maintain
a concordant Bill of Rights, running in real time and providing
up-to-the-minute weather reports from the federal bench, but I never got
around to it.
 
Recently I started thinking about it again.  These thoughts were
inspired partly by Dorothy Denning's apology for the FBI's digital
telephony proposal (which appears in this issue).  I found her analysis
surprisingly persuasive, but I also found it fundamentally based on an
assumption I no longer share: the ability of the Bill of Rights to
restrain government, now or in the future.
 
The men who drafted the U.S.  Constitution and its first ten amendments
knew something that we have largely forgotten: Government exist to limit
freedom.  That's their job.  And to the extent that utterly unbridled
liberty seems to favor the reptile in us, a little government is not
such a bad thing.  But it never knows when to quit.  As there is no
limit to either human imagination or creativity in the wicked service
of the Self, so it is always easy for our official protectors to envision
new atrocities to prevent.
 
Knowing this, James Madison and company designed a government which was
slightly broken up front.  They intentionally created a few wrenches to
cast into the works, and these impediments to smooth governmental
operation were the Bill of Rights.
 
Lately though, we find ourselves living in a world where the dangers we
perceive are creatures of information rather than experience.  Since
the devil one knows is always less fearsome than the worst one can
imagine, there is no limit to how terrifying or potent these dangers can
seem.
 
Very few of us, if any, have ever felt the malign presence of a real,
live terrorist or drug lord or Mafia capo or dark-side hacker.  They
are projected into our consciousness by the media and the government,
both of which profit directly from our fear of them.  These enemies are,
in our (tele)visions of them, entirely lacking in human decency or
conscience. There is no reason they should be mollycoddled with
constitutional rights.
 
And so, we have become increasingly willing to extend to government what
the Founding Fathers would not: real efficiency.  The courts have been
updating the Bill of Rights to fit modern times and perils, without
anyone having to go through the cumbersome procedure of formal amendment.
 
The result, I would suggest with only a little sarcasm or hyperbole, has
come to look something like this:
 
Bill O' Rights
 
AMENDMENT 1
 
Congress shall encourage the practice of Judeo-Christian religion by its
own public exercise thereof and shall make no laws abridging the freedom
of responsible speech, unless such speech is in a digitized form or
contains material which is copyrighted, classified, proprietary, or
deeply offensive to non-Europeans, nonmales, differently abled or
alternatively preferenced persons; or the right of the people peaceably
to assemble, unless such assembly is taking place on corporate or
military property or within an electronic environment, or to make
petitions to the government for a redress of grievances, unless those
grievances relate to national security.
 
AMENDMENT 2
 
A well-regulated militia having become irrelevant to the security of the
state, the right of the people to keep and bear arms against one another
shall nevertheless remain uninfringed, excepting such arms as may be
afforded by the poor or those perferred by drug pushers, terrorists, and
organized criminals, which shall be banned.
 
AMENDMENT 3
 
No soldier shall, in time of peace, be quartered in any house, without
the consent of the owner, unless that house is thought to have been used
for the distribution of illegal substances.
 
AMENDMENT 4
 
The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures, may be suspended to
protect public welfare, and upon the unsupported suspicion of law
enforcement officials, any place or conveyance shall be subject to
immediate search, and any such places or conveyances or property within
them may be permanently confiscated without further judicial proceeding.
 
AMENDMENT 5
 
Any person may be held to answer for a capital, or otherwise infamous
crime involving illicit substances, terrorism, or child pornography, or
upon any suspicion whatever; and may be subject for the same offense to
be twice put in jeopardy of life or limb, once by the state courts and
again by the federal judiciary; and may be compelled by various means,
including the forced submission of breath samples, bodily fluids, or
encryption keys, to be a witness against himself, refusal to do so
constituting an admission of guilt; and may be deprived of life, liberty,
or property without further legal delay; and any property thereby
forfeited shall be dedicated to the discretionary use of law enforcement
agencies.
 
AMENDMENT 6
 
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and private plea bargaining session before pleading guilty.  He is
entitled to the assistance of underpaid and indifferent counsel to
negotiate his sentence, except where such sentence falls under federal
mandatory sentencing requirements.
 
AMENDMENT 7
 
In suits at common law, where the contesting parties have nearly
unlimited resources to spend on legal fees, the right of trail by jury
shall be preserved.
 
AMENDMENT 8
 
Sufficient bail may be required to ensure that dangerous criminals will
remain in custody, where cruel punishments are usually inflicted.
 
AMENDMENT 9
 
The enumeration in the Constitution of certain rights, shall not be
construed to deny or disparage others which may be asserted by the
government as required to preserve public order, family values, or
national security.
 
AMENDMENT 10
 
The powers not delegated to the U.S.  by the Constitution, shall be
reserved to the U.S.  Departments of Justice and Treasury, except when
the states are willing to forsake federal funding.
 
[John P. Barlow is a technological author and the cofounder (with Mitch
Kapor) of the Electronic Frontier Foundation.  He currently lives in
Wyoming, New York and "in Cyberspace." His email address is barlow
@eff.org.]

Paul Ferguson               |  The future is now.
Network Integrator          |  History will tell the tale;
Centreville, Virginia USA   |  We must endure and struggle
fergp@sytex.com             |  to shape it.
 
          Stop the Wiretap (Clipper/Capstone) Chip.