From: "Dan Weinstein" <djw@vplus.com>
Date: Sun, 10 Mar 1996 17:32:57 +0800
To: jim bell <jimbell@pacifier.com>
Subject: Re: Leahy bill nightmare scenario?
Message-ID: <199603100201.SAA16619@ns1.vplus.com>
MIME-Version: 1.0
Content-Type: text/plain


On  9 Mar 96 at 9:26, you wrote:

> -----BEGIN PGP SIGNED MESSAGE-----
> 
> At 12:19 PM 3/8/96 -0800, Dan Weinstein wrote:
> 
> 
> >> Second, if what they're charging is the hindrance of an
> >> felony investigation, it isn't clear to me why they would be
> >> limiting the charging of that "crime" to only those actually who
> >> have committed a felony. (logic isn't the normal mode of thought
> >> for a government employee, you realize.)  
> >
> >I agree with your concerns here, but I find it hard to believe that
> > the courts would allow a broader interpretation.
> 
> Unfortunately, what you find "hard to believe" I find easy to
> believe.  Remember, if this bill is passes, it doesn't merely affect
> YOU, it affects ME.  So I suggest the burden of proof is on YOU to
> show that these provisions aren't going to be maliciously
> interpreted by the courts.

Burden of proof?  Sorry, I do not have to justify my views to anyone. 
 I am trying to have a reasonable discussion of this issue, thus, the 
"burden of proof" lies equal on each of us. 
 
> >>  Third, all they have to do is to "suspect" the person of a
> >>  felony, and a 
> >> "felony investigation" starts.  That would presumably make him
> >> guilty of the Leahy bill's provision, regardless of whether he is
> >> actually participating in the crime supposedly being
> >> investigated.
> >
> >Here you are dead wrong, the bill specifically states: "in
> >furtherance of a felony."  Its like those laws that let them charge
> >someone with murder in the first if someone dies while you are
> >commiting another felony.  They must prove the original felony
> >before they can get you on the murder one.  The real purpose of
> >this provision, as I read it, is to give longer sentences to
> >criminals that use crypto.
> 
> I'm not a lawyer, but I assume neither are you.  Please explain the
> LEGAL DEFINTION of "in furtherance of a felony."  If you can't, then
> you simply don't know how far they will go.  And you're depending on
> the reasonableness of the government for the interpretion.

True, I am not a lawyer.  I would like to hear from one of the 
lawyers on the list for a more deffinitively.  Since you also admit 
you are not a lawyer, I do not accept your opinion as superior to 
mine.  I was pointing it out as something that I believed you had 
missed.  I find it hard to believe that anyone can further a felony 
when their is no felony.  In addition, this is VTW's interpretation 
based on the analysis that they have posted to their home page.  I 
would presume that they were using lawyers to analyze the bill.
 
> >> Fourth, I gave what I considered to be a clear example of the
> >> hypothetical misuse of an encrypted remailer by the cops, one
> >> that would arguably make the remailer operator guilty of some
> >> "reasonable" anti-kiddie-porn statute.  At that point, _he_is_
> >> the target of the investigation.  Unless you can show that this
> >> kind of action by the government is impossible, I consider it to
> >> be not merely possible but almost certain to occur.
> >
> >Again, the problem I see with your scenario is that I don't believe
> > that the courts will interpret it that way. 
> 
> What you think is irrelevant.  Most people probably didn't realize
> what the government did in the Amateur Action BBS case was "legal,"
> either.  But they did it anyway.

Yes, this case was certainly a travesty.  The thing about it was that 
it violated the law.  Their actions took place in California, but 
they were tried in Tennessee.  This is a violation of U.S. law.  
Again, this is my non-professional opinion, but I have heard several 
professionals proclaim that the governments actions seriously 
violated its own laws.   If your point is that the government does 
not obey its own laws, then all I can say is that if that is how you 
feel then why oppose the bill?  Won't they end up doing what they 
want anyway?

> 
> > My interpretation is that 
> >if they serve a warrent and I don't decrypt for them and they can
> >prove a felony, then I will be subject to the listed punishment.
> 
> Are you assuming that you have the key?  Remember, if you run an
> encrypted anonymous remailer, and assuming you do it honestly, you
> won't be keeping records as to the source of the note.
>
> Thus, if they "serve a warrant" and you CAN'T decrypt the message
> (or tell them where it came from) then why aren't you already
> guilty?  Remember, the wording of the proposed law doesn't require
> that you have full knowledge of the crime involved, merely that you
> act "in furtherance" of it...   If you don't possess the key, but
> you explicitly ran your remailer so that you never it, just so you
> couldn't relinquish it, you have structured your operation too
> thwart any investigations.  You are ALREADY guilty.  This may not
> sound reasonable, but the government no longer (if it ever did)
> considers "reasonableness" to be an impediment to their actions.
>

I don't but this.  If I am a reporter if I receive an anonymous tip, 
a court could order me to tell who my source was, but I couldn't and 
they couldn't do anything about it unless they could prove that I 
knew who the source was.  If I knowingly aranged for the source not 
to reveal himself to me, could I them be charged with obstruction of 
justice or contempt of court?  Again it is my non-profesional 
opinion, but I really doubt this. Comment from a lawyer would be 
appreciated.
 
> 
> >> Fifth, it isn't clear what amount of knowledge is necessary to
> >> "trigger" this clause, especially in its current flawed state.
> >> Since ISP's and encrypted remailers might know, in general, that
> >> their systems can and probably are being used for SOME criminal
> >> activity, even if they can't identify it or the user, or decrypt
> >> it, etc, a broad interpretation of the resulting law could easily
> >> de-facto prohibit any business practices (i.e., allowing users to
> >> use encryption) that prevents full-scale monitoring and/or
> >> tracing.
> >
> >I disagree, it states you must "willfully endeavor" to use the
> >encryption as a means of obstructing the investigation.  To me,
> >this means that it is the motivation for using the encryption. 
> 
> Question:  What, exactly, is the motivation of a person running an
> anonymous remailer?  His motivation is clear:  To allow people to
> send anonymously untraceable messages.  Assuming he's of ordinary
> levels of intelligence or beyond, he is aware that somebody may some
> day use his system for illegal purposes.  You're going to have to
> explain why a court _CAN'T_ interpret this as being in violation of
> the law.
> 

If I rent cars, someone might one day use a car rented from me in a 
robbery.  Does that make my an accessary?  NO.

> 
> > If I set 
> >up an encrypting remailer for the purpose of allowing free exchange
> > of ideas, I don't believe I would be liable under this law.
> 
> Your optimism is touching.  It is also vastly misguided.

If you think I am optimistic, you must think just about everyone is 
an easy dupe.  If I do not quite reach your level of paranoia, I 
apologize; I will try to get to where I distrust everyone like you. 
Or are you just plotting to make me paranoid?
 
> >The 
> >only way I could see a remailer charged under this is if he had
> >solid evidence that a specific user was violating the law, and took
> >no action.
> 
> Gee, I wish you were right, but my experience with government thugs
> says that they will do anything they think they can get away with.
> 

Their is certainly A LOT of that with in our government, but to claim 
everyone in the government is a jack-booted thug is just too far over 
the top for me. (Yes, yes I realize you think this is niave.)

> 
> >> This is only the beginning of the problems with this section.  If
> >> you can explain why nothing I've described could possibly occur,
> >> I welcome a contrary explanation.  
> >
> >I see some real problems too, but I do not see the problems with
> >this provision to be enough to condemn the entire bill.
> 
> I don't "condemn the entire bill."  I would, however, reject the
> entire bill if that provision remains.  And morever, if we make a
> serious attempt to have it removed, the more they resist removing it
> the more we should insist it go.

I don't want it removed, I think it is an important bone to through 
to those in the middle.  I would like the phrasing tightened up so 
that it could only be used against those that deserve it.
 
> >I would like to 
> >see this portion of the bill ammended to make it clear that only
> >those actually involved in commiting the felony would be held
> >responsible. 
> 
> There would still be a problem.  What's the definition of "actually
> involved in committing the felony"?  Are you aware, for example,
> that manufacturers of small plastic screw-top vials have been
> prosecuted and convicted simply because their vials could be used to
> hold small quantities of drugs such as cocaine and crack?  This was
> a case from a few years back, BTW.  I wish I could remember the
> cite.

I was not proposing that exact language, I am not a lawyer and don't 
imagine I could come up with the bullet-proof wording that is 
required.
 
> If you're not aware of these things, WAKE UP!  Your optimism
> disgusts me, because it is entirely unrealistic and based on a
> rose-colored-glasses view of the government.

I am not aware of the vial case; I certainly would find such a thing 
interesting to read.  If this was what happened, and laws exist that 
allow this, then we ought to repeal those laws, but I don't see the 
baring that has on this case; I have already said that they should 
narrow the language so that it will not be used to the ridiculous 
extream.
 
> >> But I would also ask this:  Why, exactly, do we need this
> >> section? We've already been told that the opponents of this bill
> >> will fight it tooth-and-nail under its current wording; if that's
> >> the case then the presence of this section is inadequate to
> >> appease their unhappiness.  Therefore, we shouldn't include it in
> >> the bill at all; it does no good.
> >> 
> >> Any explanations, Dan?
> >
> >You are talking about the fringe, this, I think, was added as an
> >attempt to bring in those that are in the middle. 
> 
> Why would "those that are in the middle" object to a bill which is
> little more than a re-statement of rights we already believe we
> have?!?

I am not talking about reality; I am talking about what they can tell 
the voters if they are beat up over passing such a bill.  You seem to 
over rate the average voters grasp of the issues.  It doesn't matter 
that the bill really creates or diminishes crime, it is how the 
voters can be made to perceive it.
 
> > That is, Those 
> >that see the need to prevent the use of encryption as a means of
> >obstructing justice, but feel that we should also have a right to
> >privacy.
> 
> There is no viable middle ground here.  Any tool can be abused.
>

If that is true, than you are left with those that are the oppressed 
and the jack-booted thugs.  I do not believe that the only motivation 
of those that are opposed to strong encryption is to oppress me.  
Many are trying to do what they think is right, this provision is 
their to give those that are tetering between the two options an easy 
way to move to our side.
 
>
> >  To say that there is no delema here is ridiculous, crime is 
> >a serious problem that we are already having a terrible time
> >dealing with. 
> 
> On the contrary, my opinion is "The _government_ is a serious
> problem that we are already having a terrible time dealing with."  
> Fortunately, I've found a solution, and the government is trying as
> hard as it can to prevent it (and "crypto-anarchy" in general) from
> taking root.
>

Good premise, now if you could sell that premise to everyone in 
Congress than your right this provision is useless.  Unfortunately, I 
don't think you will have much luck with this.
 
> 
> > I think Leahy realizes that this provision will be about as 
> >useful as the "use a gun, go to jail" laws, but wants to give those
> > in the middle to say that they bill will help prevent crime.
> 
> Ha ha!  That's rich!  There is no reason that a "pro-encryption"
> bill has to contain any general "anti-crime" clauses.  The average
> person is afraid of burglars, muggers, murderers, rapists, car
> thieves.  When is the last time the average person was the victim of
> a crime whose investigation could be "thwarted" by the use of
> encryption?  If you can't think of an example, you've just proved my
> point:  This provision is entirely irrelevant to the average citizen
> (at least in a "positive" way) and can't be considered a "win" for
> him. 

You talk about my being naive, this takes the cake.  Do you really 
believe that any pro-crypto bill could make it through Congress with 
out some sort of anti-crime clause?  
 
> >> Jim Bell
> >> jimbell@pacifier.com
> >> 

Dan Weinstein
djw@vplus.com
http://www.vplus.com/~djw
PGP public key is available from my Home Page.
All opinions expressed above are mine.

"I understand by 'freedom of Spirit' something quite definite -
the unconditional will to say No, where it is dangerous to say
No.        
           Friedrich Nietzsche