From: jim bell <jimbell@pacifier.com>
Date: Wed, 13 Mar 1996 01:25:58 +0800
To: "A. Padgett Peterson P.E. Information Security" <cypherpunks@toad.com
Subject: Re: Leahy and Mrs. Bemmis (now that's a subject line)
Message-ID: <m0twEkp-00091lC@pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 11:24 AM 3/11/96 -0500, A. Padgett Peterson P.E. Information Security wrote:

>The Leahy bill is flawed in two areas. Sent a message with proposed wording
>to Sen. Leahy via his web page but have not gotten a response. Have a bad
>habit of reading laws without thought since this is how LEA and prosecutors
>are told to enforce them - as written, not as believed. If an area is
>vague, a court is required to decide how to interpret it, not LEA. If badly
>written *everyone* loses.

Unfortunately, this is not the way CREATIVE prosecutors enforce laws.  
_THEY_ try to be imaginative, "pushing the envelope" as it were, and expect 
the courts to stop them.  Sadly, those same courts often have ex-prosecutors 
as judges, people who aren't particularly inclined to dissuade the abuse of 
laws.  (exceptions exist, obviously.)

>At the same time am pragmatic enough to accept the idea that it will have
>no effect unless it passes and to be passed today it must have something
>like the criminalization statement.

I've occasionally seen statements like this, but the people who make these 
claims never seem to back them up with reasoned commentary, let alone facts, 
which would help to establish that this particular section is a "must" to any 
particular supporter, certainly not a substantial number of supporters of 
this bill.  Even a quote or two from some political-type saying, "We need 
that section to pass this bill" would be better than nothing.   

I'm not suggesting this is totally implausible; merely that it would be 
lunacy to _assume_ that the bill "needs" this clause to pass, without more 
evidence or even opinion expressed by key people.  It's almost as if you 
people have surrendered before the "fight" even has begun.  _NOW_ do you 
understand why I'm so astonished at your reaction to this bill?

Tim May would object to my use of the word, "Sheeple" here, but I think it 
fits absolutely.  Anybody who would allow himself to be spoon-fed this 
_entire_, unrepaired bill _IS_ a "sheeple."  Anyone who invents some 
requirement that this bad section be in place is WORSE.

Furthermore, if any people (for example, Senators and Representatives) 
actually are willing to publicly stand up and insist on that section, then 
I'd say that's a cue for us to ask them some very hard questions.  You seem 
to be unwilling to put them to their proof.  I recommend that you stop 
living DOWN to your reputation, Padgett.

> The goal here should not be to throw
>it out since that would simply cause the whole bill to fail,

Again, you do NOTHING to support this claim.  How do you KNOW this to be 
true?  And even with that knowledge, presuming you have it, why are you  
apparently not planning to use it to our best advantage?  Why not try to 
"smoke out" some of the people who have conspired to include this section 
into the law?  I'll bet they're hoping nobody questions them on their 
motivations!

Moreover, does this comment indicate that you've had conversations or seen 
information that indicates that the presence of this part of the bill is 
necessary to its passage?  And you're not TELLING US the details of that 
conversation or information?  Suggesting that you're happy to sell the rest 
of us out?   Hmmmmmm?  Or are you just jumping to a conclusion?  Padgett, 
the more you say the more you destroy your credibility.

> but to word
>it carefully enough that it satisfies those who reguire laws

Huh?!?  Who "require[s] laws"?????????   _I_ certainly don't "require" this 
section to be there, and so far I haven't seen anyone on CP who _personally_ 
would insist on the presence of this section to condition his support the 
entire bill.  Quite the opposite; most people express varying degrees of 
reservations about it.  


> while being narrow enough to avoid exploitation. IMNSHO the best way to do 
that is to
>require that: 
>1) A felony occured (curiously misdemeanors were ommitted) 
>   and
>2) That the individual to be charged was an active participant (before,
>        during, or after the fact) 

The problem is, what is your definition of the words, "active participant"?  
And will YOUR definition actually be the one included in the law?

I, on the other hand, see no reason to add crimes, since the implication 
above is that the person involved is ALREADY prosecutable in court.  Why all 
this "piling on"?

On the contrary, I believe it is absolutely certain that this clause will be 
used to prosecute people who are not otherwise prosecutable or convictable 
of any other crime.  It's curious that you don't see that.

>   and
>3) That encryption was used in furtherance.
>
>Note: that in the US (1) and (2) seem sufficient for a criminal charge to be 
>brought, so does (3) really add anything except words or possibly severity ?

I sure wish you were better at answering your own questions...


>Seizure seems to be a great concern of the group with the point of the
>Bemmis Pontiac being brought up. For someone providing a free remailer,
>that is a valid concern since the first question a court might ask is
>"what was the motivation". I suspect that someone providing a remailer
>and charging a reasonable fee to all who might want to use the service
>might be in a much better position (not a lawyer so not allowed to know). 


Playing into their hands yet again, I see!  Raising the price is merely a 
diluted form of banning, BTW.  So far, people implement remailers because 
running them is a comparatively minor cost, and they feel that there is a 
need for those services.  If there was some sort of de-facto rule that the 
operator had to charge for those services, this would complicate the use of 
anonymous remailers even more, deter their use even further, and achieve the 
government's ends just about as surely as a downright ban would do.

In fact, accepting a fee might actually INCREASE the liability of the 
operator, not reduce it, because the remailer operator would have a 
financial stake in the use of his remailer.  He could no longer argue that 
he did not "benefit" from the abuse (use) of that remailer.

>One indicator might be easy to check: Has there ever been a seizure 
>involving a rental car (Hertz, Avis, etc.) and if so, what was the 
>disposition ?

Well, given the fact that these auto-rental companies do billions of dollars 
of business each year and are known and "loved" by one and all, you could 
not use the (supposed) fact that no such incident occurred as some sort of 
positive sign.   Any prosecutor is well aware that he may need a rental car 
some day, and angering a multi-billion dollar company is not something you 
do lightly.

OTOH, if you discover that EVEN THESE organizations are liable for the 
transgressions of their renters, either civilly or criminally, that should 
give you fair warning that anyone smaller (especially an individual running 
a remailer) and less able to defend himself is certainly going to be a 
target eventually.

Even a failed attempt to get a car rental company to be liable for something 
done by a renter is a sign that prosecutor was inclined to go after a big 
target, suggesting he wouldn't think twice before he tried to haul an 
individual into court.  Do you think a person would operate a remailer if he 
thought it was likely he'd get prosecuted and have to pay thousands of 
dollars in legal bills, even if he were eventually acquitted?  Remember, his 
legal bills won't be reimbursed by the government, though I believe they 
should be.

Too bad you can't see this, huh?


Jim Bell
jimbell@pacifier.com