From: fergp@sytex.com (Paul Ferguson)
Date: Sun, 3 Oct 93 16:48:59 PDT
To: cypherpunks@toad.com
Subject: CuD forward
Message-ID: <610uac1w165w@sytex.com>
MIME-Version: 1.0
Content-Type: text/plain


excerpted from:

>Date:         Sun, 3 Oct 1993 16:49:01 CDT
>From: Cu-Digest <uunet!CMUVM.CSV.CMICH.EDU!tk0jut2%mvs.cso.niu.edu>
>Subject:      Cu Digest, #5.77

- ---

Date: Fri, 1 Oct 93 06:55:38 -0700
From: grady@NETCOM.COM(Grady Ward)
Subject: File 1--Grady Ward DOES NOT Encourage Illegality

Jerry Leichter's <leichter@LRW.COM> comments about me in CuD, Volume 5,
Issue 76 are flatly wrong. I do not and never have encouraged people
to copy or use PGP illegally whatever their jurisdiction.

In this country they ought not to "make, use, or sell" RSA without a
license from PK Partners of Sunnyvale, CA.  Similarly, the IDEA cipher
ought not to be used commercially without a specific commercial
license from Ascom-Tech AG of Switzerland.

If they are non North American nationals then they need to obtain a
copy of PGP from one of several foreign sites such as:

black.ox.ac.uk          (129.67.1.165)
ghost.dsi.unimi.it      (149.132.2.1)
nic.funet.fi            (128.214.6.100)

Depending, of course, on their local laws.

I have been assured by two attorneys that source is NOT an infringing
"device" and can be copied or studied as long as its distribution is
not simply a ploy to evade patent law.  The whole constitutional idea
of a patent centers on the wide dissemination of the underlying ideas
that can be reduced to practice by a "person of ordinary skill" in the
field. Disseminating the ideas underlying a patent is explicitly a
patriotic act in the United States.

In any event individuals become moral creatures by actively making
their own personal choices and not having the ideas that could lead to
an informed choice restricted by the State.

I support the widespread use of strong crypto in the world for two
reasons: It assists physically separate individuals to freely exchange
ideas in greater safety from State interference.  And it
preferentially helps less powerful people since the more powerful
dominating group can simply use the raw force of its state apparatus
to advance its program. It is an equalizer in the quest for coalition
and social justice.

Strong crypto creates communities, not conspiracies.

------------------------------

Date: Thu, 30 Sep 93 17:49:12 -0600
From: "L. Detweiler" <ld231782@LONGS.LANCE.COLOSTATE.EDU>
Subject: File 2--Response to Jerry Leichter in re Moby Crypto

Editor: I strongly object to comments by Jerry Leichter
<leichter@LRW.COM> on the PGP subpoenas in CuD, Volume 5 :  Issue 76.
Mr. Leichter appears to be making contradictory points: even though
the ITAR may be casting FUD and chilling people's actions based on
`poorly drafted regulations whose coverage no one can determine, by
threats and insinuations from government spokesmen that some action is
illegal', he on the other hand admonishes G. Ward for his actions to
date in challenging the law. "Ward is deliberately flaunting it.
Stupid, dangerous idea. Being a revolutionary, putting yourself in
direct opposition to the power of the state, isn't fun and games.
People get hurt that way."

Mr. Leichter does not appear to realize that the most egregious laws
created tend only to be overturned by the most dramatic challenges.
Our own American Revolution is a dramatic instance of this fact. I
have praised G. Ward in email previously as a compelling cyberspatial
hero for his actions in publicizing over Usenet the NSA and State
Department molestations he has been subject to over the past weeks.
Very dramatic constitutional issues are at stake.

Another major reality lapse in Mr. Leichter's somewhat desultory
argument (that appears to have the fundamental message of minimizing
the significance of the Zimmermann-Ward affair) is the following.
Citizens in a society do not live by the laws -- they live by the
*effect* of those laws on their everyday life. Some laws are widely
ignored, such as speed limits. Some are revered with the utmost
respect, such as the rulings of the Supreme Court and the directives
of the President.

Even if no case had ever been brought to court on the ITAR, the
fundamental issue is that the law has an extraordinary dampening force
on certain aspects of current cyberspatial development and enterprise
-- in particular, cryptographic technology intrinsic to a wide variety
of transforming technologies such as digital cash and signatures --
all critical to future progress. An analogy might be this: even though
our judicial system has evolved an elaborate protocol for granting
search warrants, that system is meaningless if people voluntarily
allow police to search their homes. We do *not* live in a world
described by government laws, we live in one that interacts with them
in sometimes unpredictable ways.

Now, let me abandon these vague platitudes immediately for some
cutting specifics relevant to this case. What is the effect on the
ITAR on *domestic* cryptographic development?  The ITAR supposedly
only deals with import and export and in fact that is all the
authority granted by its enabling law, the Arms Export Control Act, to
cover. But the use of the ITAR in practice by government bureaucrats is
apparently to stifle free speech and free press rights of domestic
U.S. citizens. This situation is transparently clear from Grady Ward's
wretched predicament and other noxious affairs that have escaped the
focused attention of many.

In particular, I would like to draw attention to an outstanding effort
by D. Bernstein to demonstrate the sheer oppressive force of the ITAR
as interpreted by the relevant U.S. agencies. In the anonymous FTP
file

ripem.msu.edu:/pub/crypt/docs/shuffle-export-hassles.

is an extraordinary compilation of letters sent between D.  Bernstein
and the Bureau of Politico-Military affairs regarding the ITAR rules.
Mr. Bernstein sought permission to *post* a simple message to the
Usenet group sci.crypt describing a cryptographic technique. The sheer
obstruction he encountered is absolutely appalling. It approaches the
grotesque torture of a totalitarian society in suppressing
information. He required the intervention of his California state
representative merely to get simple mail responses from the
asphyxiating bureaucracy! Moreover, the exchange demonstrates very
clearly that the government *applies* the ITAR not as a law regarding
import and export of material (as the *law* constrains it) but *in
practice* as an instrument to stifle otherwise lawful 1st Amendment
scientific publication. From a letter of 14 July 1993 to A.  A.
Henderson:

>Please note that the State Department is engaging in
>unconstitutional censorship of material which I privately
>developed and which I wish to publish. What you are
>witnessing is a battle over the First Amendment. I believe
>that the [Office of Defense Trade Controls, Bureau of
>Politico-Military Affairs] is acting in violation of the
>Bill of Rights. [They] failed to answer this question:
>"Does ITAR exert prior restraint on otherwise lawful
>publication"?

In these paragraphs I seek to emphasize that the debate goes far
deeper than the mere obnoxious classification of widespread,
public-domain cryptgraphic algorithms and techniques as `munitions'.
The debate surrounding the ITAR cuts to the core of many democratic
issues. The ITAR is updated with alarming frequency and changed with
disturbing ease. Its revision seems to occur in complete defiance of a
regular and open legislative process. Even top *experts* on the law
cannot keep up with all the modifications. As a frightening example of
this, take the case of U.S. vs.  Martinez, where Elizabeth Martinez
and her fiance were convicted of violating the Arms Export Control Act
by exporting `cryptographic hardware' -- a satellite TV video
descrambling device, `Videocipher II'. Apparently, by some magic
bureaucratic whim, it is now *legal* to export such equipment under the
ITAR! I doubt Mrs. Martinez is consoled by this news, after being
consumed and rebuffed even on appeal.

I consider the ITAR one of the most totalitarian documents our
government has ever produced. G. Ward and P. Zimmerman are modern
cyberspatial heroes for their bold, direct challenges of it. In
classifying `disclosure of information to foreign nationals' as
*export* we find the same institutional paranoia and cyberspatial
ignorance seen in the Cold-War era Soviet Union in e.g. restricting
Xerox machines. The irony is that in both cases, the paranoia is
entirely justified, even necessary, within the context of preserving
the illegitimate status quo. This oppression forms the basic
foundation of support for the two most totalitarian systems of the
20th century -- one defunct, the other with the initials N.S.A.

------------------------------

Paul Ferguson               |   privacy \'pri-va-see\ n, pl, -cies;
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