From: "Ed Carp [SysAdmin]" <khijol!erc>
Date: Sun, 5 Jun 94 15:13:13 PDT
To: cypherpunks@toad.com
Subject: The Illogic of Clipper
Message-ID: <Pine.3.89.9406051503.A1055-0100000@localhost>
MIME-Version: 1.0
Content-Type: text/plain


I'm sorry, but I just don't understand the government's position on 
Clipper.  After all, the best way for people to ensure that the 
government's not going to listen in on their communications is to not use 
Clipper.  Now, unless it was a crime to use anything other than Clipper, 
the government couldn't do a thing about it.

No criminal is going to use a system that would allow the feds to 
eavesdrop - that's worse than sending messages "en clair".  The only way 
I see Clipper working is if it was mandatory to use it, with stiff 
penalties against using anything else.  That way, if the feds decided to 
listen in on someone's conversation, and they couldn't decrypt it, all 
they'd have to do would be to charge them with the crime of using a 
non-approved method of encryption.

This raises another question - wouldn't the mandatory use of Clipper 
violate the fifth amendment's protection against self-incrimination?  The 
courts have held that for the government to mandate someone filling out a 
form (for example) that would incriminate them is not legal.  It seems to 
me that to require someone to use an "approved" method of encryption is, 
in essence, violating one's fifth amendment rights.

Before someone points out that it's the case now with the government's 
ability to read stuff "en clair" anyway, I would point out that the 
courts may find that there is a higher expectation of privacy when 
someone uses encryption that if they did not.  There is a fundamental 
expectation of privacy, even if one is engaged in criminal activity, that 
the courts have tended to maintain.

Ed Carp, N7EKG/VE3	ecarp@netcom.com, Ed.Carp@linux.org

"What's the sense of trying hard to find your dreams without someone to share
it with, tell me, what does it mean?"        -- Whitney Houston, "Run To You"