From: die@pig.jjm.com (Dave Emery)
Date: Fri, 19 Aug 94 22:49:01 PDT
To: smb@research.att.com
Subject: Re: cypherpunks-digest V1 #18
In-Reply-To: <9408191433.AA08423@toad.com>
Message-ID: <9408200556.AA09211@pig.jjm.com>
MIME-Version: 1.0
Content-Type: text/plain


	Steve Bellovin writes :

> 
> I'm not defending a 15 year sentence; it's far too harsh.  But I
> strongly disagree with ``why outlawing it in the first place? What is
> crypto for?''  By analogy, why outlaw burglary?  After all, what are
> safes and alarms for?


	There are certainly at least two issues here.  One is whether or
not radio communications are in any way intrinsicly private or are by
nature public.  Outlawing listening to radio communications has always
seemed logically absurd to many thoughtful people as the ether is
intrinsicly and unavoidably an open broadcast medium with the property
that anything transmitted into it can almost always be easily received
by many many unauthorized others from spaces they have the legitimate
access to and a basic right to operate radio receivers in. 

	The original restriction of the right to listen to radio signals
and use the information received implemented in the 1934 Communications
Act was perhaps justifiable as a special artifical protection of an
infant industry in 1934 because conveniant, low cost, small, low power
and weight, user transparent, and reliable radio encryption technology
simply did not exist.  In fact it was only 8-10 years later that Bell
Labs actually implemented the first really secure vocoder based HF radio
digital voice crypto system - it took up some like 30 floor to ceiling
racks, and was obviously not something that could ever be justified for
use for the normal communications of mere mortals.  But today such
technology is so cheap, small, easily integrated, secure, and in a
digital world so completely transparent that preserving this artificial
protection for a now robust adult industry is patently absurd. 

	To my view this policy of criminalizing radio listening has
actually seriously decreased the real privacy of radio communications as
it has reduced pressure to implement even rudimentary encryption, and
encouraged the view that radio is just the same as the much more
intrinsically private wired communications only without the wires. 

	It is also my long held view that one very important but silent
and shadowy player in this pretend radio privacy charade is the
intelligence and law enforcement community that obviously benefits
greatly from an open communication system that can be so easy covertly
monitored for the purpose of conducting searches, including many that
are very questionable or completely illegal under the constitution. 

	But ...


> libertarians generally agree that theft is wrong, and theft of service
> is just as wrong as theft of tangible objects; otherwise, there is
> no way to recover the cost of the capital investment necessary to
> provide the service.  That is, the marginal cost -- the electricity,
> wear and tear on the ICs, etc., to make a cellular phone call -- is
> obviously very low.  But someone had to pay for all the cellular switches
> out there, to say nothing of the R&D that went into them, and a large
> part of the charges for a call go towards repaying that investment.


	The second issue here is the issue of what constitutes theft of
services.  Is merely passively using a service broadcast by radio a
crime that should be rewarded with 5 year sentences and $250,000 fines ?
It is quite easy to argue that actively using a radio based service such
as a cellular system without authority is intrinsicly an act of fraud in
that it involves lying about one's identity to obtain a valuable
service, and criminal trespass in that it involves entering a private
virtual space without authority, but isn't the best analogy with
unauthorized listening or watching radio and tv signals not such
active intrusions but merely reading the front page of a newspaper in a
vending machine in a public place without paying for it ?

	I would think that anybody who spends capital to create and
provide a service and then provides it to the public over a broadcast
channel protected only by a silly legal charade deserves any piracy he
suffers and should not be able to create the enforcable legal myth that
using the service without paying is theft.  Perhaps forbiding commerce
in encryption keys ("wizard numbers"), and technology specificly and
only intended to enable access to such a service without paying such as
pirate decoder chips and modified boards is a justifiable legitimate
protection for such businesses but outlawing the mere possession or use
of such technology is far too broad a protection for something that is
really public broadcasting and not private.
 
	On the other hand a cellular provider has only a limited amount
of capacity available to serve a particular cellphone, capacity which
costs capital to provide, and usually pays something for the landline
part of the calls it provides - unauthorized use of such a service does
cost the carrier something if only by degrading the quality of service
for paying subscribers. 

						Fred the Pirate